A telegraph-era law cannot protect Malaysia’s digital lifelines

From Jason Chuah

Malaysia has staked a good deal of its economic future on a few dozen strands of fibre lying on the seabed.

More than 20 international submarine cables land at over 10 stations in this country, and with its digital economy blueprint the government aims to make Malaysia Southeast Asia’s leading destination for cable landings.

They carry almost all of our international data, including the traffic behind Johor’s data-centre boom. Yet the criminal law that protects them was written for the telegraph.

The only provision aimed squarely at cable damage is Section 431A of the Penal Code. It punishes mischief by cutting or injuring “any electric telegraph cable, wire, line, post, instrument or apparatus for signalling”, with up to two years imprisonment or a fine.

The provision has three serious weaknesses.

First, it requires mischief, meaning intention or knowledge that loss or damage is likely.

A ship that drags its anchor across a cable through carelessness might well fall outside it, and so does one that merely claims carelessness.

That is exactly the explanation offered in almost every recent incident, from the Baltic Sea to the Taiwan Strait. Proving mischief will not be easy.

Second, it stops at the territorial sea. The Penal Code applies to offences committed “within Malaysia”, which takes in our 12-nautical-mile territorial waters but no more.

Its extraterritorial provisions reach Malaysian citizens and Malaysian-registered ships, but not a foreign crew aboard a foreign vessel.

Most of a cable’s route lies further out, in the exclusive economic zone and on the continental shelf.

The Exclusive Economic Zone Act 1984 and the Continental Shelf Act 1966 regulate the laying of cables but do not make damaging them an offence.

A foreign ship that cuts a cable 30 miles off our coast commits, so far as Malaysian criminal law is concerned, no offence at all.

Third, the language is out of date. Modern fibre-optic cables probably count as “apparatus for signalling”. The planned subsea power link carrying a gigawatt of Sarawak’s electricity to Singapore almost certainly does not.

International law regrettably does not fill the gap. The UN Convention on the Law of the Sea (UNCLOS), which Malaysia ratified in 1996, is better at protecting the freedom to lay cables than the cables themselves.

Article 113 obliges states to criminalise the wilful or culpably negligent breaking of cables, but only by ships flying their own flags and their own nationals. Malaysia’s law, which ignores negligence, arguably does not meet that obligation.

Worse, Article 97 says that when an “incident of navigation” occurs beyond the territorial sea, only the flag state may prosecute the master or crew.

Nor does it give any right to board a ship suspected of damaging a cable. So when a vessel flying a flag of convenience drags its anchor through a cable in our EEZ, UNCLOS refers us to a flag state that has neither the means nor the will to act.

This is not hypothetical. In May, the director-general of the Malaysian Maritime Enforcement Agency acknowledged that tankers carrying Iranian-linked oil choose to transfer cargo about 70km off Johor precisely to “exploit jurisdictional gaps”.

One monitoring group counted 42 such transfers there in about 10 weeks. They operate in the very waters where Malaysia’s criminal law stops.

The United Kingdom faced the same problem and offers a useful model. Its principal offence dates from 1885 but was long ago extended to the continental shelf.

In May 2026 the British government went further, announcing a new criminal framework covering damage that is intentional or reckless, with tougher penalties.

Malaysia should do three things.

First, replace section 431A with a dedicated offence covering intentional, reckless and culpably negligent damage to telecommunications and power cables, with penalties that reflect what is at stake.

Second, extend that offence expressly to the EEZ and continental shelf, applying to any person, whatever their nationality or flag.

Third, draft it with the enforcement problem in mind.

In August 2026 the Helsinki Court of Appeal revived the prosecution of the crew of the Eagle S, a shadow-fleet tanker accused of cutting cables in the Gulf of Finland.

The court held that the offence was committed where its effects were felt, in Finland. It also held that deliberate anchor-dragging is not a mere “incident of navigation” that UNCLOS reserves to the flag state.

The coastal state suffering the cable damage can therefore have criminal jurisdiction. A Malaysian statute that locates the offence where the damage is suffered, and defines it accordingly, would put our courts on the same footing.

Malaysia, which has long taken a robust view of coastal-state rights, is better placed than the great maritime powers to take this step. What it lacks is a law fit for the age of fibre.

Jason Chuah is chairman of the Board of Research at the Maritime Institute of Malaysia and an FMT reader.

The views expressed are those of the writer and do not necessarily reflect those of FMT.