CIVIL FORFEITURE UNDER ANTI-MONEY LAUNDERING LEGISLATION IN MALAYSIA

Abstract

The Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 [AMLAFTA] empowers the Malaysian Courts to forfeit any property that is the subject of a money-laundering offence via sections 55 and 56 of the AMLAFTA. The rationale of this empowerment is to ensure that all property used in the commission of a money laundering offence is forfeited. Hence, the criminals do not gain any benefits from their crimes. However, it is observed that the provision related to civil forfeiture, specifically under section 56 of the AMLAFTA appears problematic in many instances due to the requirement attached and the civil standard of proof. As such, this article intends to detail the civil forfeiture mechanisms under the AMLAFTA. This article used the qualitative method in doctrinal legal research to collect and analyse all the information related to the topic from various primary and secondary data such as legal provisions, case laws and secondary sources, namely journals and articles on civil forfeiture, especially when applying the standard of proof. The article analyses the substantive law and procedural requirements for civil forfeitures based on Malaysia’s relevant legal provisions and cases. This article also examines the Malaysian Courts’ trends in deciding civil forfeiture cases and analyses the standard of proof for civil forfeiture. This article suggests amendments to section 56 of the AMLAFTA to introduce a provision on the rebuttable presumption to ensure that the objective of creating the civil forfeiture provision can be achieved.