The (Over)Criminalisation of Terrorism Offences in Malaysia and Indonesia

The criminal justice response to terrorism involves criminalising terrorism-related offences and criminal processes. This policy brief examines the criminalisation of terrorism offences in Indonesia and Malaysia, placing it within broader counter-terrorism frameworks. It evaluates the potential risk that over-criminalisation may undermine the rule of law and human rights and adversely affect the counter-terrorism strategies employed by these nations. The policy brief begins by examining the factors that influence the criminalisation of terrorism offences in Indonesia and Malaysia, in order to better understand the context. It is evident that domestic reasons, such as incidents of terrorism and international pressure, have shaped the development of criminalisation. Additionally, the discussion highlights the urgent need for clear definitions of terrorism, as the way the legal definition of terrorism is framed in criminal codes, as well as the introduction of precursor offences, can lead to over-criminalisation. This results in the convergence of terrorism-related offences, thereby augmenting the discretionary authority of the authorities. Through a comparative analysis, this paper underscores good practices and proposes reforms and improvements that may be implemented to ensure the just and effective enforcement of terrorism-related offences in Indonesia and Malaysia.

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