Star Laws – The Bill Awakens

The Malaysian Space Board Bill 2020 (“the Bill”) was presented for its first reading before the Dewan Rakyat on 3 November 2020 during the previous meeting of Parliament. The second and third readings of the Bill have been postponed to the next meeting of Parliament. The Bill is noteworthy as it represents a new frontier for legislation in Malaysia – the regulation of the space industry.  
The purpose of the Bill is to establish a Malaysian Space Board to regulate certain space-related activities, to regulate the registration of ‘space objects’ and to provide for certain space-related offences.
Defining the Galaxy
For the first time in any Malaysian law, the Bill defines “space” as a void extending from 100km above mean sea level. This distance of 100km above mean sea level is seemingly derived from what is known in the scientific community as the Kármán Line, a widely (but not universally) accepted boundary between Earth’s atmosphere and outer space. 
The Bill’s chosen definition of “space” is much more important than it may at first seem. Every nation has the fundamental right to sovereignty over its own airspace, the upper limit of which is not currently capped by any international law. By defining “space” as beginning at 100km above mean sea level, the Bill will effectively limit Malaysia’s sovereignty to this specific distance. This distance will also seemingly serve as the extent of jurisdiction for the nation’s two civil aviation regulators, the Malaysian Aviation Commission and the Civil Aviation Authority of Malaysia.
The Jedi High Council
As detailed in Clause 5 of the Bill, the composition of the proposed Malaysian Space Board will be a unique inter-ministerial mix. The Chairman and Deputy Chairman of the Space Board is to be respectively the Secretary General and Deputy Secretary General of the Ministry of Science, Technology and Innovation (“MOSTI”). The remaining Space Board members shall include one representative each from the Ministry of Defence, Ministry of Communications and Multimedia, Ministry of Home Affairs, Ministry of Transport, Ministry of International Trade and Industry, and the National Security Council. These representatives are to be appointed by the Minister of MOSTI.
Clause 14 of the Bill specifies that the Minister of MOSTI, on the advice of the Chairman of the Space Board, shall also appoint a person to be the “Space Regulator”. The Space Regulator is to be the Executive Secretary of the Space Board and has various duties and powers conferred throughout the Bill.  
No Space Lasers Allowed
Clause 15 of the Bill states that space shall only be used for peaceful purposes and expressly prohibits the use of space for, amongst others, installing or testing weapons of mass destruction, establishing a military base, and conducting military manoeuvres. However, the Explanatory Statement to the Bill specifies that the use of military personnel for scientific research or other peaceful purposes is permitted.
Conducting any of the prohibited space activities is an offence with severe repercussions. Any person who commits such an offence is liable to a fine of up to RM50 million or to imprisonment for up to 30 years or to both. For corporate bodies, the punishment is a fine of up to RM100 million.
Where an offence is committed by a body corporate, Clause 68 provides that the directors and certain officers and managers of the body corporate may be held jointly and severally liable for the offence. Under Clause 69, a person may in certain circumstances be liable for offences committed by his employee, agent as well as an employee of his agent.
Although it is not expressly stated, the inclusion of Clause 15 suggests that the Bill will be used to implement the Outer Space Treaty which Malaysia signed aeons ago in 1967 but has yet to formally ratify.1 The Outer Space Treaty, which has been ratified or signed by a vast majority of countries, also stipulates that outer space is only to be used for peaceful purposes.
Houston, We Have Lift-Off Licences
The Bill defines “space object” as a spacecraft and launch vehicle, together with their component parts. Part VI of the Bill prescribes various licensing and certification requirements for such objects.
Clause 16 specifies that any person seeking to build or manufacture a space object, own or operate a facility for the testing of a space object, or own or operate a launch facility must apply for a licence.
Clause 17 states that any launch service provider who intends to launch a space object into space from a launch facility in Malaysia shall apply for a launch permit. Clause 18 is similar in nature but is considerably wider. It specifies that any citizen or permanent resident of Malaysia, or any corporate body incorporated or registered in Malaysia, who intends to launch a space object in space must apply for a launch certificate, whether or not the launch facility used is in or outside Malaysia. 
Additionally, Clause 36 prescribes that any citizen or permanent resident of Malaysia, or any corporate body incorporated or registered in Malaysia, whose space object has been launched into the earth orbit or beyond from a launch facility in or outside Malaysia, must register the space object with the Space Regulator. Clause 38 requires the Space Regulator to keep and maintain a register of all such space objects.
Any failure to comply with Clauses 16, 17, 18 and 36 of the Bill amounts to an offence.
All UFOs To Be Reported
Clause 41 is among the most interesting provisions in the Bill. It imposes a positive obligation on all persons to notify the Space Regulator if they discover any object which they have reason to believe is a space object, or object which originated from space, or any person whom they have a reason to believe is a personnel or passenger of a spacecraft. The failure to notify the Space Regulator of such a discovery is an offence.
In its current state, Clause 41 of the Bill is very vague. For example, it does not specify if a notification must be made if the space object is discovered in space itself, perhaps through the use of a telescope, or if the notification obligation is limited to space objects discovered on Earth. The Explanatory Statement to the Bill does not provide any further guidance. Given that this provision imposes a positive obligation, it will certainly require a revision to provide some clarity.
It is fascinating that within the span of one generation, ideas such as space tourism, space mining, and commercial space exploration have moved at lightspeed from the realms of science fiction to now become a virtual inevitability. As Malaysia takes its first steps to regulate the space industry, we are also witnessing the creation of a brand new legal practice area – space law. It will be very interesting to monitor the development of the Bill through the Houses of Parliament and we will provide further updates in due course.
This Alert prepared by Eric Gabriel Gomez (Associate) of Skrine.

1 The formal title is Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies;