JULY 3 — I am concerned that sometimes clever people in institutions unwittingly cause hardships to citizens and prevent the economy from flourishing as it should. The hardships caused may not be plainly visible especially when they are overshadowed by seemingly “necessary good laws” to prevent a great evil.
Without the slightest of doubt, terrorism carried out on any platform is a great evil against mankind. It is a violent cowardly act that does not respect human lives and property. Terrorism must not only be denounced but society must take proactive steps to prevent its occurrence as effectively as possible.
Organised terrorism, like everything else that’s organised, requires funds to function. Hence, any effort in cutting off funds towards terrorist activities is to be lauded. Research and intelligence over the years have discovered that funds are moved illegally, that is underground, and are often obtained by illegal activities to fund terrorism.
The entire purpose is to avoid detection by the authorities and also to maintain secrecy over their source of funds and operations.
Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (“Amlatfa”) in Malaysia is therefore a necessary piece of legislation as a counter-terrorist measure. So is the Prevention of Terrorism Act 2015.
The preamble to the Amlatfa itself states: “An Act to provide for the offence of money laundering, the measures to be taken for the prevention of money laundering and terrorism financing offences and to provide for the forfeiture of property involved in or derived from money laundering and terrorism financing offences, as well as terrorist property, proceeds of an unlawful activity and instrumentalities of an offence, and for matters incidental thereto and connected therewith.”
In reality, what happens is that the moment you are involved in an illegal activity that involves illegal movement of funds, for example, remitting funds overseas without a licence from Bank Negara, you could be charged for the offence of money laundering under section 4 of the Act.
Likewise, if you had banked in corrupt money into your account, you may also be charged under the same section. The punishment can be very severe where on conviction shall be liable to imprisonment for a term not exceeding 15 years and shall also be liable to a fine of not less than five times the sum or value of the proceeds of an unlawful activity or instrumentalities of an offence at the time the offence was committed or RM5 million, whichever is the higher.
It appears that due to the definition of money laundering in the Act, any transaction that involves the proceeds of an illegal activity is a money laundering offence. This is the part that troubles me when it does not involve any evidence of terrorism financing or an attempt to “whiten” corrupt money.
For instance, if a person is earning a living morally but illegally, should the prosecution use a severe law such as Section 4 of Amlafta to prosecute him?
For the sake of discussion, how different is a person who is selling pisang goreng without a licence and a money changer without a licence? Both of them are obviously earning illegally (because of not being licensed under the law) but morally (they are providing a service/product without stealing from anyone).
In both cases, their customers are not cheated or injured. So what is the rationale to charge the illegal money changer with money laundering and not the illegal pisang goreng seller when both are involved in a transaction which involves proceeds from illegal activities?
I deliberately give these extreme examples to show how a compassionate exercise of prosecutorial discretion is necessary. Otherwise, it gives an appearance of being oppressive. It is my humble view that if the offence is not having a licence to do the activity for which a licence should be obtained, then he should be charged with the offence of carrying out that particular business without a licence.
Whenever a person is charged under Section 4 of Amlafta, the accused person’s properties and bank accounts are seized and frozen in accordance with the provisions of the Act even before the trial begins.
Hence, the accused is put to immense hardship and untold suffering notwithstanding the principle that an accused person is innocent before found guilty by the court. The accused is, effectively, already punished. I can, of course, as a lawyer understand the need for seizure of illegally obtained funds in certain instances, for example from corrupt practices where clearly there has been harm to society.
However, I do not believe that such seizure should be automatic in all circumstances involving all properties of the suspect or for undefined periods without regard to other legal principles and the constitutional guarantees afforded to the citizen.
I also cannot understand the seizure of unrelated properties or the freezing of unrelated bank accounts. Once again, I find that sometimes, compassion in the enforcement of the law is overlooked.
The fact remains that if at the end of the day, the accused is found not guilty, the State is not going to compensate him for all his suffering unless there is malicious prosecution. Hence, I keep emphasising the need for compassion in enforcement and wise exercise of prosecutorial discretion instead of being pedantic.
* Jahaberdeen Mohamed Yunoos is a senior lawyer and founder of Rapera, a movement which encourages thinking and compassionate citizens. He can be reached at [email protected].
** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.
