Adzim Amir Hamzah explains the measures taken by the Malaysian Government to curb the proliferation of WMD.

Approximately 5 years after the United Nations Security Council (“UNSC”) adopted Resolution 1540 on non-proliferation of weapons of mass destruction (“WMD”), Malaysia, a country last elected as a member of the UNSC in 1999, affirmed its commitment to the UNSC’s cause by passing its own legislation, the Strategic Trade Act 2010 ("STA"), for the domestic control of strategic items on 6 May 2010.
 
The STA came into force on 1 January 2011 together with 5 sets of subsidiary legislation.
 
What is the primary objective of the enactment of STA?
 
The STA provides a domestic mechanism to control the export, transshipment, transit and brokering of strategic items, including arms and related materials, and other activities that will or may facilitate the design, development and production of WMD and their delivery systems in Malaysia.
 
What is WMD?
 
WMD refers to any weapon designed to kill, harm or infect people, animals or plants through the effect of nuclear explosion or dispersion of the toxic properties of a chemical weapon or the infectious or toxic properties or a biological weapon. WMD also includes the delivery system created, adapted or intended for the deployment of such weapons.
 
What are the requirements under the STA?
 
The STA requires any person who is engaged in the export, transshipment, transit or brokering of strategic items or unlisted items to obtain the relevant permit or registration under the STA from the relevant authority. According to the Ministry of International Trade and Industry's website, permits may also be required by intermediaries like cargo agents, carriers, freight forwarders, feeder operators, logistic or service providers.
 
What are “strategic items” and “unlisted items”?
 
“Strategic items” are goods and technology which are prescribed as “strategic items” pursuant to Section 7 of the STA and are intended to be controlled under the STA.
 
A comprehensive list of controlled strategic items is contained in the Strategic Trade (Strategic Items) Order 2010.
 
“Unlisted items” are goods and technology which are not prescribed as “strategic items” but may be used in any activity that supports the development, production, handling, usage, maintenance, storage, inventory or proliferation of any weapon of WMD and its delivery systems.
 
What are the types of permits and registrations which are available under the STA?
 
The permits and registrations available under the STA are as follows:
 
(a)     Single permit - for one time export, transshipment or bringing into transit within a specified period;
 
(b)     Bulk permit - for multiple export or transshipment within a specified period for a single country or destination;
 
(c)     Multiple use permit - for multiple export or transshipment within a specified period to multiple countries or destinations;
 
(d)     Special permit - for one time export, transshipment or bringing into transit within a specified period issued on a shipment basis destined to be received by a restricted end-user;
 
(e)     Broker registration - for carrying out brokering of strategic items.
 
Is there any specific restriction or prohibition under the STA?
 
The Minister of International Trade and Industry is empowered under the STA to designate an end-user to be a restricted end-user for which a special permit is required and a prohibited end-user to whom all export, transshipment or transit of strategic items or unlisted items are prohibited.
 
The list of restricted and prohibited end-users, which includes individuals, entities, countries and destinations, can be found in the Strategic Trade (Restricted End-Users and Prohibited End Users) Order 2010.
 
What are the categories of strategic items listed in the Strategic Trade (Strategic Items) Order 2010?
 
The Strategic Trade (Strategic Items) Order 2010 divides strategic items into 2 main categories namely:
 
(a)     Military Items – items solely or designed or modified for military purpose, including any part or component thereof. They include the technology necessary for the development, production or use of any military item; and
 
(b)     Dual-use Items – items which are capable of being used for a non-military and a military purpose or in relation to the proliferation of WMD. These items include the technology necessary for the development, production or use of any dual-use item.
 
Dual-use items are further divided into 10 sub-categories, namely, Category 0 – Nuclear materials, facilities and equipment; Category 1 – Special materials and related equipment; Category 2 – Materials Processing; Category 3 – Electronics; Category 4 – Computers; Category 5 – Telecommunications and information security; Category 6 – Sensors and lasers; Category 7 – Navigation and Avionics; Category 8 – Marine; and Category 9 – Aerospace and Propulsion.
 
When should I start applying for the relevant permit or registration? Is there a “grace period” for the application of permits or registration?
 
The requirements for permits to export, transship or bring into transit of dual-use items under Category 0 (Nuclear materials, facility and equipment) and the special permit required for export, transship or bring into transit of strategic items to restricted end-users and registration for brokering of strategic items is enforced from 1 April 2011. Companies have been given 3 months from 1 January 2011 to comply with these requirements.
 
The requirements for permits to export, transship or bring into transit all other strategic items (i.e. military items and dual-use items under Categories 1 to 9) will be enforced on 1 July 2011. Application for these permits can be made starting 1 April 2011.
 
What are the timeframes for application and the validity period of the permits and registration? Can the permits and registration be renewed?
 
(a)     Single-use permit – an application should be made not less than 5 days before the export, transshipment or bringing into transit of such items. The permit is valid for up to 6 months and is not renewable.
 
(b)     Bulk permit and multiple-use permit – an application should be made not less than 2 months before the export, transshipment or bringing into transit of such items. The permit is valid for up to 2 years and can be renewed at least 2 months before expiry.
 
(c)     Special permit – an application should be made not less than 2 months before the export, transshipment or bringing into transit of such items. The permit is valid for up to 1 year and is not renewable.
 
(d)     Broker registration – an application should be made not less than 30 days before carrying out an act of brokering of such items. The registration is valid for up to 1 year and can be renewed at least 14 days before expiry of the registration.
 
Who is the licensing authority to whom applications for permits should be submitted?
 
The licensing authority to whom application for permits should be submitted includes the Atomic Energy Licensing Board (for dual-use items under Category 0 and certain dual-use items under Categories 1, 2, 3, 4 and 6), the Malaysian Communications and Multimedia Commission (for dual-use items under Categories 4 and 5), the Pharmaceutical Services Division of the Ministry of Health (for certain dual-use items under Category 1) and the Strategic Trade Controller appointed under the STA (for military items, dual-use items under Categories 7, 8 and 9, and certain dual-use items under Categories 1, 2, 3 and 6).
 
Where can I find the procedures and documents required for submission of application for permits?
 
The procedures and documents required for submission of application for permits can be found in the Strategic Trade Regulations 2010.
 
What are the consequences of engaging in export, transshipment, transit and brokering of strategic items or unlisted items without the requisite permit or registration?
 
A person who is found guilty of engaging in such activities without the requisite permit or registration can be subjected to a fine ranging from RM5 million to an amount in excess of RM30 million, or a term of imprisonment ranging from 5 years to life imprisonment, or the death sentence. The heftiest penalty may be imposed on the offender where the act results in death of others.
 
Am I required to keep and maintain the records of the activities relating to strategic items or unlisted items under the STA?
 
Yes. The STA requires all records and particulars relating to the export, transshipment, transit of strategic items or unlisted items to be maintained for at least 6 years from the end of the calendar year in which the relevant act was carried out.
 
Are the provisions of STA and the regulations made thereunder unique to Malaysia?
 
No. The STA, the regulations and the list of strategic items reflect internationally agreed export controls and the Resolution 1540 adopted by the UNSC.