The NSC Act 2016 should be suspended pending further consultation
27 July 2016
Lawyers for Liberty is shocked and appalled that the controversial National Security Council Act 2016 has been gazetted to come into force on 1 August 2016 despite very serious concerns raised by civil society, lawyers, elected representatives and even the Conference of Rulers that had called for certain provisions of the NSC Act to be ‘refined’. The NSC Act also failed to acquire the Royal Assent and it was deemed to be passed by Parliament.
The NSC Act has elevated the legal status of the existing National Security Council and provided for the declaration of “security areas” and allows authorities arbitrary powers of use of violence and deadly force, warrantless arrest, search and seizure, and imposition of curfews. It also empowers the authorities to take possession of land, buildings and moveable property (both public and private), and to destroy any unoccupied building or structure within a security area.
The government has denied that the NSC Act was ever intended for situations of emergency and that the powers of the Yang Di-Pertuan Agong under Article 150 of the Federal Constitution to declare emergency remains intact.
However, if we were to draw a comparison between the now abolished provisions of Part III on the Special Provisions Relating To Security Areas of the Internal Security Act 1960, and Part IV on the Declaration of Security Area of the NSC Act – they bear such a striking similarity that we can only deduce that the NSC Act was enacted to replace Part III the ISA.
More importantly, the powers to invoke the special provisions relating to “security areas” have been shifted from the YDP Agong under the ISA to the Prime Minister under the NSC Act. Therefore, it is clear that the Prime Minister under the NSC Act has effectively usurped the powers of the YDP Agong under the ISA (which has since been abolished) to declare “security areas”.
Whilst the threshold for the declaration of a “security area” under the ISA is much higher requiring public security to be seriously disturbed or threatened by any substantial body of persons to cause a substantial number of citizens to fear organised violence, the threshold under the NSC Act seems astonishingly low and ambiguously worded, and thus open to abuse.
Under the NSC Act, the government has done away with the requirement for substantial body of persons to cause a substantial number of citizens to fear organised violence and has lowered the threshold so drastically that any person which causes serious harm to the people, territories, economy, national key infrastructure or any other interest of Malaysia can empower the Prime Minister in the interest of national security to declare any area a “security area”.
It is therefore clear that under the NSC Act, the Prime Minister has not only usurped the powers of the YDP Agong to declare “security areas” that had previously been exercised under the ISA, he has also substantially broadened the scope of the special provisions relating to “security areas” to cover instances that do not justify the involvement of the military or use of deadly force.
Due to the wide ranging and ambiguous wordings of the NSC Act, it would seem that the Prime Minister may invoke the special provisions relating to “security areas” to almost anything that his detrimental to his rule including public protests and other events that do not involve substantial number of people and organised violence.
We therefore strongly urge the government to suspend the coming into force of the NSC Act and to consult all stakeholders regarding the many concerns that have been raised. We further call for substantial amendments to be made to the NSC Act, so that national security is genuinely balanced with constitutional, democratic and human rights concerns, and institutional checks and balances.
(ii) Part III of the Internal Security Act 1960
Lawyers for Liberty