MEMORANDUM TO MEMBERS OF DEWAN NEGARA
NATIONAL SECURITY COUNCIL BILL 2015
15th December 2015
Malaysian civil society organisations view with serious concern the National Security Council Bill 2015 (NSC Bill) that was rushed through Dewan Rakyat on 3rd December 2015.
This Bill has dire consequences for the people of Malaysia and represents an unprecedented threat to what remains of parliamentary democracy in Malaysia.
Why is there a need for such a sweeping piece of legislation especially since it was done in such haste, without any justification, publicity or consultation?
The tabling of this Bill represents an extremely dangerous step for Malaysia as it concentrates extraordinary powers within the hands of a single member of the Executive arm of Government. Mechanisms of check and balance normally found within parliamentary democracies are either absent or severely compromised in Malaysia.
No person or entity should have absolute and unfettered powers. Concentration of power leads to the temptation for abuse, particularly in times of political crisis. The NSC Bill represents a quantum leap towards a dictatorship and a military-police state.
The serious ramifications of this Bill call for further and extensive consideration by the Dewan Negara.
The following are the immediate issues that are apparent:-
a) The constitutionality of the NSC Bill in light of Article 150 of the Federal Constitution is highly questionable. Article 150 specifically provides for the DYMM Yang Di-Pertuan Agong to issue a Proclamation of Emergency where there exists a “grave emergency” in the Federation. The provisions of this Bill will create a separate mechanism under which the Prime Minister can effectively proclaim a “security area”. The NSC Bill therefore effectively usurps the power of the DYMM Yang Di-Pertuan Agong, which will now be exercised by the Prime Minister even though the word “emergency” is not used in the Bill; [Clause 18]
b) In relation to the military, the chain of command that DYMM Yang Di-Pertuan Agong shall be the Supreme Commander of the armed forces as provided for under Article 41 of the Federal Constitution has been ignored. Further, there has been no regard for Article 137 which provides for the Armed Forces Council, Article 150 for the proclamation of emergency, and the Armed Forces Act 1972;
c) The Prime Minister is given unlimited power to declare an area anywhere in Malaysia a “security area” even though it does not amount to a real threat that justifies the involvement of the military;
d) There are no checks and balances as the role of the other members of the NSC is merely advisory. Parliament has no supervisory powers because under Clause 18(6), a declaration and any renewal is only laid before Parliament (not debated) with no specific time period as to when. Furthermore, the six months limitation on the declaration is an illusion as the Prime Minister may, without any consultation, extend the period of the declaration any number of times; [Clause 18]
e) Malaysia has existing legislation to address national security issues. In addition, the government has brought in controversial legislation such as 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 vague offences against the state including “activities detrimental to parliamentary democracy”;
f) The entire legislation is open ended and vague in many of its key definitions, and tremendous scope is given to the NSC to determine what constitutes a security issue. Of particular concern is Clause 18(1) of the NSC Bill and the low and arbitrary threshold for the Prime Minister to declare a “security area”. Some of these phrases include “seriously disturbed or threatened by any person”, “likely to cause serious harm,” “to the territories, economy, national key infrastructure of Malaysia or any other interest” and “interest of national security”; [Clauses 4 and 18]
g) A declaration of a “security area” allows authorities arbitrary powers of use of violence and deadly force, warrantless arrest, search and seizure, and imposition of curfews. It also empowers them to take possession of land, buildings and moveable property, and to destroy any unoccupied building or structure within a security area; [Clauses 25, 26, 27, 28, 29, 30, 31, 33, 34 and 42]
h) There will be impunity as the NSC Bill allows dispensation with inquests of members of security forces and persons killed within the security area as long as the magistrate is satisfied that the person has been killed in the security area as a result of operations undertaken by the security forces; [Clause 35]
i) The Bill allows the NSC to compel Government Entities to report to it, and to furnish information to it. This would allow the NSC to override a State Government’s authority; [Clause 17]
j) The Bill allows the NSC to act as a super intelligence gathering entity as it compels the military, police and other agencies to provide their independently gathered intelligence; [Clause 17]
k) Protection for members of the NSC, its committees, personnel and security forces from any civil and criminal proceedings (unless done in bad faith) coupled with the obligation of secrecy under the Bill, renders them completely unaccountable for their actions. [Clauses 37, 38, 39, 40 and 41]
Assurances that the legislation will not be abused give little comfort. This is because the authorities have used the harsh pre-trial detention powers provided under SOSMA despite similar assurances. For example, Khairuddin Abu Hassan and his lawyer Matthias Chang were detained and charged for “attempted sabotage” and tried under SOSMA.
The NSC Bill is clearly unconstitutional and a grave abuse of power. Malaysia does not need such a Bill as this is nothing more than an attempt by the Prime Minister to usurp more power and centralise that power in him. This goes against all principles of democracy and undermines the rule of law in the country. It will change Malaysia forever.
We, the undersigned civil society organisations therefore call upon all members of Dewan Negara to do their duty by the rakyat, DYMM Yang Di-Pertuan Agong and the Federal Constitution and oppose the NSC Bill.
The #TakNakDiktator Campaign Coalition
1. Amnesty International Malaysia
3. Centre to Combat Corruption and Cronyism (C4)
4. National Human Rights Society (HAKAM)
5. Pertubuhan Ikram Malaysia (IKRAM)
6. Institut Rakyat
7. Lawyers for Liberty
8. Persatuan Promosi Hak Asasi Malaysia (PROHAM)
9. Suara Rakyat Malaysia (SUARAM)