The Criminalisation Approach in Malaysia’s Counter-Terrorism Strategy

This research is intended to critically analyse the criminalisation approach as a primary legal response to terrorism in Malaysia. The approach encapsulates the use of criminal law within the existing criminal justice system. It is hypothesised that the criminalisation approach provides the most fair and effective response, which also embodies legitimacy and upholds constitutionalism, and should be given priority over other counter-terrorism approaches. The potential approaches are categorised into three modes: the normal criminalisation mode (NCM), which embodies the elements of ‘normalcy’ and consistency; the special criminalisation mode (SCM) which involves modification and manipulation such as the invention of special terrorism-related offences and alteration to normal criminal procedures; and the avoidance of criminalisation mode (ACM) which works outside the criminal justice system and might arise in exceptional situations where the NCM and SCM cannot produce fair and effective outcomes. The preferred NCM utilises ordinary criminal law and existing processes in dealing with terrorism. In order to explore and test the proposition, this thesis first examines and evaluates the conception of terrorism and counter-terrorism in Malaysia. The assessment covers the existing definitions of terrorism and factors that shape the formulation of Malaysia’s counter-terrorism strategy. That is followed by an analysis of the concept of the criminalisation approach. The thesis then assesses the workings and dynamics of the criminalisation approach within Malaysia’s counter-terrorism strategy. The explorations and assessments involve a socio-legal approach which incorporates a doctrinal study of legal aspects as well as an empirical, interview-based study of how the law is operated in practice. Additionally, policy transfer framework is adopted in this thesis in order to draw lessons from the UK’s counter-terrorism policy, particularly its prosecution-based policy. This thesis eventually recommends potential improvements that can be made to the present criminalisation approach as well as counter-terrorism strategy in Malaysia. The thesis stance and the methodologies represent original studies of Malaysian counter-terrorism laws.