Why we should oppose the National Security Council Bill


  • A Humble Submission
  • Monday, 14 Dec 2015

UNLESS you have been living under a rock for the past week or so, you would probably know that the Dewan Rakyat has recently passed a controversial bill known as the National Security Council (NSC) Bill.

The Bill will be tabled in the Dewan Negara and if it is passed by the Upper House, it will be on its way to become law.

You probably would also know of the opposition towards the Bill by the Malaysian Bar, Suhakam, civil society and Opposition political parties.

In fact, civil society has launched a dedicated campaign to stop the Bill from becoming law, and rightly so.

The Bill is a piece of proposed legislation that goes against our constitutional framework. If it becomes law, it will give powers to the Government which will upset the balance between the various institutions of the state.

The Bill sets up by law a body known as the National Security Council. According to the Bill, the NSC is to be the Government's central authority for considering matters concerning national security.

Crucially, the Bill empowers the NSC to advise the Prime Minister, who in turn will be empowered to declare a particular area within the country to be a "security area".

The Prime Minister can make the declaration if security in the 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".

Clearly, the circumstances in which a security area can be declared are wide enough to cover a variety of circumstances, some of which may not have anything to do with national security concerns at all.

It also does not help that the Bill does not provide a definition as to what is "national security", even though the phrase appears many times in the proposed law.

Within the security area, the Executive would have wide-ranging executive powers. The NSC may issue executive orders that would include the deployment of security forces in the security area, and may appoint a 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. This director of operations is only answerable to the NSC.

Also within the security area, security forces "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 vehicles in the security area.

These are essentially powers reserved for situations of emergencies.

Article 150 of the Federal Constitution empowers the Yang diPertuan Agong to issue a Proclamation of Emergency if he is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened.

What this Bill will do when it becomes law is to enable the Executive to be vested with emergency powers without the need to go through the Agong.

The powers given the NSC and the security forces within the security area are also wide and arbitrary, and will affect the fundamental liberties of individuals, with little to no recourse.

The Bill is inconsistent with the Constitutional framework of the country. It vests powers in the hands of those who may potentially abuse it for their interests.

If before this the Executive must satisfy the Agong that a situation exists to warrant a proclamation of emergency, now it would be possible to bypass the Agong. The in-built check and balance in having the Agong to be a part of the Constitutional cog when it comes to emergencies will be redundant.

It will also be difficult to challenge any executive action within the security area because these actions will be sanctioned by law. All the Constitutional safeguards and guarantees when it comes to fundamental liberties will be suspended or ignored.

Make no mistake. No one is saying that national security is not important nor are they ignoring the potential security threats that may arise in the country.

But national security cannot be a magic phrase to allow a law that will vest almost unbridled power to the Executive.

Remember the words of Jean Jacques Roussseou: "We may acquire liberty, but it is never recovered if it is once lost".

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