National Security Council Act gives government sweeping powers, warns HRW

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Malaysia’s new National Security Council (NSC) Act, which came into force on 1 August 2016, is a tool for repression that should be immediately repealed, Human Rights Watch said today.

The government should instead revise its laws to incorporate international human rights standards into the effort to counter terrorism.

In December 2015, the government rushed through the broad and vaguely worded law, which gives sweeping powers to a council headed by Prime Minister Najib Razak to declare regions, including the entire country, as security areas to protect “any interest of Malaysia.”

The law suspends many restraints on police powers in those areas, allowing the authorities to conduct arrests, searches, and seizures without warrants. Each such declaration lasts for six months, renewable an unlimited number of times.

“Given the Malaysian government’s recent track record of harassing and arresting government critics, the likely abuses under this new law are truly frightening,” said Phil Robertson, deputy Asia director at Human Rights Watch. “There are serious concerns that this law will be used as a back door to severe rights violations, using government claims that it only seeks to protect its citizens from terror threats.”

Enacting this law is a serious step backward on human rights by Prime Minister Najib, who in September 2011 scrapped the country’s infamous Internal Security Act (ISA) as part of what he said were efforts to find “the right balance” between national security and personal freedom. He promised new legislation that would protect fundamental rights and freedoms.

Instead, the National Security Council Act sweeps even more broadly than the discredited ISA, which allowed the declaration of a security area only if necessary to “suppress organised violence” against people or property by “a substantial body of persons.”

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Moreover, while under the ISA the head of Malaysia’s Council of Rulers made the decision to declare a security area, the new law places that authority with a council headed by Prime Minister Najib and filled with his appointees. They include the deputy prime minister, the defence minister, the home minister, the communications and multimedia minister, and the inspector general of police.

Once such a declaration is made under the NSC Act, security forces are permitted to limit freedom of movement, conduct warrantless searches for evidence of violation of “any written law,” and make arrests without a warrant on suspicion of “any offence under any written law” being committed.

The law also permits the security forces to refuse anyone, including journalists, entry to the security zone, or to require anyone to leave the zone, enabling the government to avoid media scrutiny of its actions.

The law protects security forces from legal proceedings for any actions they take “in good faith,” imposes a sweeping obligation of secrecy on all those involved with the council, and does away with inquests for deaths of anyone killed in the security area “as a result of operations undertaken by the security forces for the purpose of enforcing any written laws”.

The widely criticised law was published in the Federal Gazette and entered into force without the assent of the head of the Council of Rulers, which had called for the revision of some of the law’s provisions.

Malaysian non-governmental organisations, including human rights groups such as Suara Rakyat Malaysia (Suaram), Lawyers for Liberty, Bersih, and Amnesty International Malaysia, have all called for the law to be revised.

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The Southeast Asia regional office of the United Nations Office of the High Commissioner for Human Rights (OHCHR) has also expressed concern that the law could be used to impose unjust restrictions on freedom of opinion, expression, and assembly, and said that the Malaysian government should revise the law to bring it in line with international human rights norms and standards.

Under international law, the government may limit certain rights, including freedom of movement, expression, and association, on grounds such as national security or public order, but only when necessary and through means that are proportionate to the aim pursued and nondiscriminatory. Although the National Security Council Act has been justified on grounds of countering terrorism, the law is not so limited.

The definition of terrorism that the UN Security Council unanimously adopted in 2004 and that the UN special rapporteur on counter-terrorism and human rights subsequently endorsed says that terrorism is an act committed with the intent to kill, cause serious bodily injury, or take hostages with the aim of intimidating or terrorising a population or compelling a government or international organisation.

The new law, by contrast, does not even require a threat or likelihood of violence before a security zone can be declared.

Even if treated as a law declaring rules to govern during an exceptional “state of emergency”, the NSC Act does not meet international standards. To qualify as a state of emergency justifying derogation of rights, the situation must pose an exceptional threat to the life of the nation.

The new law, however, allows for the suspension of certain rights within designated security areas merely for threats to the Malaysian economy or “any other interest”.

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While Malaysia is not a party to the International Covenant on Civil and Political Rights (ICCPR), it is nevertheless bound by customary international law, including the Universal Declaration of Human Rights, and cannot justify this broadly worded law as required for a state of emergency.

“This law places enormous power in the hands of a government that has already shown a willingness to use rights-abusing laws to go after its opponents and suppress dissent,” Robertson said. “This law will perpetuate just the sort of abuses that Prime Minister Najib claimed he intended to end.”

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Gunasekaran Balasundaram
2 Aug 2016 6.28pm

The security personnel [could] loot and steal and no action [would] be taken as they have immunity[?]

John Foo Sxhong
2 Aug 2016 6.32pm

that good majority ask for it