Bar: National Security Council Bill a lurch towards authoritarian government

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Activists submit a memorandum in Parliament on 3 December 2015 to protest against the National Security Council Bill

The bill is an insidious piece of legislation that confers and concentrates vast executive powers in the council, says Steven Thiru.

The Malaysian Bar is alarmed by the proposed National Security Council Bill 2015 that was tabled in the Dewan Rakyat on 1 December 2015 by Minister in the Prime Minister’s Department Shahidan Kassim, and which is reportedly scheduled for its second reading on 3 December.

The basis for this new law is unclear, and the manner in which it is being rushed through the Dewan Rakyat is inexcusable.

The bill is an insidious piece of legislation that confers and concentrates vast executive powers in a newly created statutory body called the National Security Council.

The NSC consists of key members of the executive, namely the prime minister as chairman and the deputy prime minister as deputy chairman, as well as the minister of defence, minister of home affairs, minister of communications and multimedia, chief secretary to the government, chief of defence forces, and the inspector general of police (see Clause 6).

It is noteworthy that the members of the NSC are all appointed by the prime minister and report directly to him. Accordingly, the NSC is not an independent body and would essentially function at the dictates of the prime minister.

The NSC is to be “the Government’s central authority for considering matters concerning national security” (see Clause 3). The NSC’s scope of authority is broad and unchecked, as “national security” is not defined in the bill. This provision is therefore open to abuse by the NSC, as the NSC would be able to treat almost any matter as one of national security for the purposes of the bill.

The NSC will have the power to “control” and “issue directives” to “any ministry, department, office, agency, authority, commission, committee, board or council of the Federal Government, or of any of the State Governments, established under any written law or otherwise” on operations or matters concerning national security (see Clauses 2 and 5).

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Thus, a whole host of instrumentalities of the federal government or state governments — which could include Bank Negara Malaysia, the Securities Commission and the Malaysian Anti-Corruption Commission — would be made subservient to the NSC. The independence of these entities would be restrained and compromised. The authority of state governments can be overridden.

Critically, the NSC is empowered to advise the prime minister to declare any area in Malaysia as a “security area” if the NSC is of the view that the security in that area is “seriously disturbed or threatened by any person, matter or thing which causes or is likely to cause serious harm to the people, or serious harm to the territories, economy, national key infrastructure of Malaysia or any other interest in Malaysia, and requires immediate national response” (see Clause 18(1)).

The provision gives the NSC (and in effect the prime minister) extremely broad discretion to declare an area as a security area given the variety of circumstances, which may not be genuine national security concerns at all, such as peaceful public rallies or protests.

Upon the NSC’s advice, the prime minister may, “if he considers it to be necessary in the interest of national security, declare in writing the area as a security area” (see Clause 18(1)). The declaration is for an initial six months and “may be renewed by the Prime Minister from time to time for such period, not exceeding six months at a time” (see Clauses 18(3) and 18(4)).

The unbridled power in the hands of the prime minister allows him to declare almost any part of Malaysia as a security area. Further, the prime minister may extend the period of such declaration for an unlimited number of times and therefore, for an indeterminate duration that could extend for years.

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The immortal words of the late Raja Azlan Shah (acting chief justice of Malaya, as he then was), in the case of Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135, must be borne in mind and never forgotten: “Unfettered discretion is a contradiction in terms … Every legal power must have legal limits, otherwise there is dictatorship…”

Upon a declaration that an area is a “security area”, the NSC would have wide-ranging executive powers. It may issue executive orders that would include the deployment of security forces (such as the police and the armed forces) in the security area (see Clause 19(2)), and may appoint a director of operations answerable only to the NSC (see Clause 20).

The bill does not provide for the qualifications of the director of operations, who has enormous and unrestricted powers, such as the power to remove any person from the security area, impose curfew, and control movement of persons or vehicles (see Clauses 22(2), 23 and 24).

As regards the deployed security forces, they “may, without warrant, arrest any person found committing, alleged to have committed or reasonably suspected of having committed any offence under any written laws in the security area”. The security forces also have powers to stop and search individuals; enter and search any premises; and take possession of any land, building or movable property (such as cars) in a security area (see Clauses 25 to 30).

Thus, all constitutional guarantees and fundamental rights of citizens in respect of arrest, search and seizure of property can be ignored or suspended. This is a grave infringement of the Federal Constitution.

Further, there is power to dispense with inquests in respect of members of the security forces and persons killed within the security area, as long as a magistrate “is satisfied that the person has been killed in the security area as a result of operations undertaken by the [s]ecurity [f]orces for the purpose of enforcing any written laws” (see Clause 35).

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“Written laws” are not defined, and could well include laws in respect of minor offences. Thus, this provision permits security forces to use disproportionate force that could result in the loss of lives, with impunity.

It would appear therefore that the bill enables the prime minister, either unilaterally or through the NSC, to exercise authoritarian executive powers. These powers are in effect emergency powers, but without the need for a proclamation of an emergency under Article 150 of the Federal Constitution.

This usurps the powers vested in the Yang di-Pertuan Agong in, and violates the provisions of, Article 150 of the Federal Constitution, and is a blatant appropriation of those powers. The bill is therefore of questionable constitutional validity.

Moreover, the extensive powers under the bill effectively resurrects the powers granted to the government under the Emergency Ordinances, which were repealed by Parliament in 2011.

The government will no doubt argue that we live in dangerous times, with the constant threat of terrorism, and that such new powers are necessary to combat such theats.

However, we would remind the government that it has more than enough laws giving it more than enough draconian powers to address security concerns.

The proposed legislation extends those draconian powers even further, allowing the government to restrict movement, abandon civil liberties, and administer areas centrally and directly, bypassing state and local government. It avoids public scrutiny and proper accountability and promotes unfettered discretion and an environment of impunity.

The Malaysian Bar urges the government to immediately withdraw the National Security Council Bill 2015 and to step back from the abyss of authoritarian rule by respecting the rule of law and our Federal Constitution.

Steven Thiru is president of the Malaysian Bar.

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