Civil society groups vow to continue questioning the constitutionality of the newly enacted National Security Council Act 2016.
THE army is trained to kill (in combat). They are not trained to engage civilians....”
Former Royal Malaysian Air Force officer Lt-Col (Rtd) Mohd Daud Sulaiman warned of the dangers of using the military in internal security operations, as provided for by the newly enacted National Security Council (NSC) Act 2016.
“The use of the military in internal security operations must be done with care because the way the military is trained and carries out its business is not the same as other enforcement authorities,” he said.
Mohd Daud was one of the speakers at the Civil Society Conference on National Security in Kuala Lumpur last week, organised by members of civil society, including Amnesty International Malaysia, the National Human Rights Society (Hakam), Institut Rakyat, Persatuan Promosi Hak Asasi Malaysia(Proham) and Suara Rakyat Malaysia (Suaram).
As they had done earlier, the civil society groups at the conference again posed critical questions about the constitutionality of the NSC Act, as well as the effectiveness of the new law in promoting national security and its relationship with existing measures and legislation in the country to counter terrorism.
The NSC Act, which came into effect on Aug 1 this year, provides powers to the National Security Council, chaired by the prime minister, to designate a “security area”.
Within an area so designated, the council can command military forces to use reasonable force to preserve security, including arresting and searching people, entering and searching premises without warrants, and seizing “suspicious” properties and belongings. The Act also grants the council the power to infinitely renew the security area order every six months.
Prime Minister Datuk Seri Najib Tun Razak has defended the NSC Act as a necessary measure to protect the safety and security of the Malaysian people from the growing global terrorism threat.
Contending that some are deliberately misinterpreting the Act for political reasons, Najib has explained previously that it does not usurp the power of the Agong, as the proclamation of national emergency remains with the King, and that Parliament remains sitting and has oversight on any security area declared.
Malaysian Armed Forces chief General Tan Sri Zulkifeli Mohd Zin also gave assurances that Parliament’s approval would still be needed before any area can be declared a “security area”, asserting that the Act would help security forces to better coordinate responses to any form of threat or crime.
“With the rise of groups like the Islamic State (IS), such coordination and a fast response from multiple agencies is a must.
“Once a security area is declared, an operations director will be appointed and issue operational directives before security forces can be sent in to flush out the terrorists,” he was reported as saying.
(The Government appointed Zulkefli as the first non-civilian director-general of the NSC in August in view of “the severity of the threats to national security and defence”.)
Mohd Daud, however, insists that the NSC Act is taking Malaysia down a dangerous path by blurring the line between civilian enforcement and military agencies.
“If we look at the provisions (in the NSC), it uses a lot of military terms, and this is very dangerous,” he alleges, reiterating, “When you ask the military to enforce the law, you ask for trouble. The military is not trained for that. They do not know the Criminal Procedure Code.”
Mohd Daud also believes that the provisions in the Act that empower the council to take command of the military are in contempt of the Agong’s powers.
He points out that it is clearly stated in the Federal Constitution that the King and the Conference of Rulers are in charge of the military.
“We (the military) are trained to follow the King,” he said.
Urging the Government to follow the system and respect the Constitution, Mohd Daud said, “The Constitution can’t speak, talk or move, and the Agong represents the symbol of the Constitution.
“We also have a system, so please follow the system so that we can all do our jobs properly, whether the threat is terrorism, violence or others.”
Concurring, fellow speaker and lawyer Andrew Khoo pointed out that, as the authority to declare an emergency belongs to the Agong under the Constitution, the NSC Act should be accompanied by legislation that passes on the emergency declaration powers from the Agong to the council.
“There is no legislation that passes the authority of the Agong to the NSC. The chain of command has been disrupted, but there is no legal document that provides for that switch,” he said, questioning the need for two different frameworks or an alternative mechanism in dealing with national security.
As Khoo put it, our constitutional monarchy has a valuable check and balance mechanism in the country’s power system.
“The constitutional monarch has to follow the advice given by the Cabinet. But emergency declaration is one of the areas where the Agong actually had personal discretion (under the repealed Emergency Ordinance) to act.”
This was echoed by Hakam president Datuk Ambiga Sreenevasan who questioned why the Government gazetted the NSC Act without express royal assent even though the law directly impinges on the Agong’s powers.
Ambiga also urged the Govern-ment to explain why it ignored the concerns raised by the Conference of Rulers, which wanted certain provisions of the NSC Act refined.
According to the Federal Government Gazette, the NSC Bill was automatically assented to under Article 66(4A) of the Federal Constitution, which grants automatic assent to any legislation if the Yang di-Pertuan Agong does not provide his assent within 30 days from when the legislation is presented to him.
Calling the new law unconstitutional and undemocratic, Ambiga stressed that it also undermines the rule of law in the country: “The powers conferred through the law are far too wide, arbitrary and disproportionate to any terror threats currently faced by Malaysia.”
She noted that even the much-maligned US Patriot Act has judicial oversight unlike the NSC, adding that Malaysia already has more than sufficient laws to address genuine national security issues.
“These include the Prevention of Terrorism Act 2015 (Pota), the Security Offences (Special Measures) Act 2012 (Sosma), the Prevention of Crime Act 1959 (with substantial amendments in 2014) and the 2012 amendments to the Penal Code that added numerous offences against the state.”
Lawyers for Liberty executive director Eric Paulsen agreed that Malaysia already has sufficient laws to deal with the rising terrorism threat.
“On top of the laws, our police force is one of the most powerful institutions in the country, they have hundreds of thousands of personnel to investigate, arrest and charge terrorist suspects, even if they only inspire the terrorist acts.
“The powers accorded under the NSC Act do not correspond to the threat we are facing.”
Ambiga warned that the NSC Act represents an extremely dangerous step for Malaysia as it concentrates extraordinary powers in the hands of one person.
“No person or entity should have such absolute and unfettered powers. Concentration of power leads to abuse, particularly in times of political crisis.
“The NSC law represents a leap towards a dictatorship and a military-police state with little or no safeguards,” she said, stressing that civil society will continue to fight the NSC Act in court by challenging the constitutionality of the law.
Proportionality is key, concurred Sidney Jones, director of the Jakarta-based Institute for Policy Analysis of Conflicts.
“We need to look at what is the right proportion of response to the rising terrorism threat.
“The trick is to get a law that recognises the threat but doesn’t go overboard; a legal system that is both professional and independent of the executive branch, and a review process that can make corrections as necessary,” said Jones, highlighting Indonesia’s case where a draconian rule (under Suharto) has been held responsible for the growth of radicalisation in the country, while Philippine’s anti-terrorism law, rendered useless by stringent human rights safeguards, has forced its government to rely on vigilante killings to take care of the crime.
Suhakam chairman Tan Sri Razali Ismail in his keynote speech at the conference urged the three branches of government – the executive, judiciary and legislature – to play their roles to ensure proper safeguards are in place to prevent abuses of the NSC Act.
Safeguards should ensure a balance exists between security and the liberties and freedoms guaranteed under the Federal Constitution, he stressed.
“Many provisions of the Act are couched in fairly general terms without clear definitions or safeguards.
“Further, the unclear definition of security in the Act may also be interpreted to suppress expression of thoughts, opinions or beliefs on public matters, including government policies.”
While certain rights may be limited to protect certain enumerated aims/purposes such as national security, public order, public health and morals and the rights and freedoms of others, those aims/purposes are not to be interpreted loosely, he asserted.
“The unfettered powers granted under the Act without proper checks and balances may threaten the state of human rights in the country.”
Razali said Suhakam advocates for the creation of a mechanism of review, as has been emphasised in the report of the United Nation’s Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism.
“The report suggested that the review of security and anti-terrorism laws should include an annual governmental review of and reporting on the exercise of powers under counter-terrorism laws, an annual independent review of the overall operations of counter terrorism laws, and a periodic parliamentary review,” he highlighted, expressing Suhakam’s readiness to advise the NSC on matters of human rights and national security.
He added that the commission is also open to sitting in on the NSC Council’s meetings, in line with the mandate and functions as contained in Suhakam’s founding Act.
Quoting political theorist and civic activist Benjamin Franklin’s timeless philosophy, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety”, Razali underlined the importance of stakeholders, from the executive to civil society, playing their part to ensure the relationship between national security and human rights is always in tandem and in balance.
“Whatever are the exigencies and compulsions under whatever circumstances, this country must honour and preserve our liberties and our democratic freedom,” he said.
Khoo agreed, urging for more public discussions and debates on the issue.
“Sadly, we might have to wait until a real-life case of abuse under the NSC Act happens before the people will wake up and realise that it can be a bad tool in the wrong hands.
“We Malaysians sometimes never learn our lesson – to ignore human rights is also to jeopardise the safety and security of all Malaysians.”
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