Rethink terrorism laws, urge lawyers and accountants


  • Nation
  • Monday, 22 Sep 2003

By SHAILA KOSHY

PETALING JAYA: The Malaysian Institute of Accountants (MIA) and the Bar Council have called on the Government to reconsider its proposed amendments to the Penal Code, which targets accountants and lawyers specifically in the performance of their duties. 

While supporting the need to counter terrorism, the two organisations expressed concern over several clauses that they felt were ambiguous and placed an onerous responsibility on their respective professions. 

MIA president Datuk Dr Abdul Samad Alias and council chairman Kuthubul Zaman Bukhari said this in response to the front-page article of The Star on Sept 10 on the Penal Code (Amendment) Bill 2003 which sought to punish those who help terrorists. 

Clause 130(o) of the Bill, which was tabled for first reading in the Dewan Rakyat on Sept 9, targeted lawyers and accountants who provide financial services or facilities, including acting as nominees or agents, for any terrorist group. 

It stated that if there were “reasonable grounds to believe” that their services and facilities were used in the commissioning of a terrorist act and the act resulted in deaths, they would face the death sentence.  

If there were no deaths, they would face a jail term of between seven and 30 years.  

Dr Abdul Samad: 'How is a tax agent to know whether the funds had been used for purposes related to terrorism.'

“Our members provide a wide range of services to their clients which includes tax advice, financial planning, auditing and other financial-related services. There will be circumstances which require them to act as nominees for such clients,” said Dr Abdul Samad. 

“We agree that any member who knowingly and directly provides financial services that facilitate any terrorist or act of terrorism should be punished to the full extent of the law.” 

He said, however, that the Bill was onerous in extending penal punishment to accountants who had “reasonable grounds to believe” that their financial services and facilities were used to commit or facilitate terrorism. 

Saying there were no criteria to assess the “reasonable” requirement in the Bill, he asked how a tax agent - an accountant providing tax advice - could ascertain that a client company was a front for a group with terrorist links. 

“How is he to know whether the funds of the company had been used for purposes related to terrorism?” he asked.  

Dr Abdul Samad said the MIA urged a thorough examination of the possible repercussions on accountants. 

He added that if accountants had to carry out additional scrutiny of their clients to avoid contravening this provision, there would be an increase in the cost of doing business in Malaysia and it would affect all levels of the industry. 

Kuthubul Zaman said the absence of a clear definition of the term “facilities” in the Bill left much room for ambiguity. 

“While we welcome the use of the 'reasonable man' test, which is an objective test, how would we know what is a reasonable action when there is no clear definition of the word 'facilities'?” he asked. 

“If the definition encompasses normal genuine transactions, it is open to abuse on the part of the enforcement authorities.” 

As for the term “indirectly” in Clause 130(n), which touched on providing or collecting property for terrorist acts, he said it might include those who did not have any knowledge of the terrorist act. 

Mens rea (having intent) is a cardinal principle in criminal law but saying someone should have ‘reasonable’ knowledge takes away the mens rea element,” said Kuthubul Zaman. 

He also said there should be a restricted definition for real terrorist acts so that there would be a clear demarcation between these and normal penal offences.  

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