Questionable legality of the National Security Council’s military personnel deployment
21 January 2016
Lawyers for Liberty views with extreme concern the recent decision of the National Security Council (NSC) chaired by the Prime Minister that sought to deploy joint patrols of the police and military personnel in public and tourist areas, in the aftermath of the Jakarta terror attacks.
While we do not doubt the seriousness of any potential terrorist threats in the country, we are however concerned that the deployment of military personnel during peace time may be unlawful and without legal basis.
While it is clear the police has the general lawful authority for the maintenance of law and order and the preservation of peace and security in the country, it is unfortunately unclear what is the legal basis for the NSC’s decision to deploy military personnel, especially since no emergency was declared by DYMM Yang di-Pertuan Agong who is also the Supreme Commander of the armed forces.
The previous source of the NSC’s authority is Arahan MKN No.1 which is dependent on the Emergency (Essential Powers) Act 1979. However, when the Prime Minister sought to repeal the three Proclamations of Emergency that had been declared in 1966, 1969, and 1979 respectively, which both Houses of Parliament did in end 2011, the Emergency (Essential Powers) Act 1979 also ceased to have effect. Parliament did not pass any new laws to re-legislate on the NSC other than the NSC Bill 2015 which has not come into effect.
Therefore it would seem that all the essential powers, regulations and immunity conferred under the Emergency (Essential Powers) Act 1979 to military personnel acting under the NSC’s directive, no longer apply to them and they can now be prosecuted or held liable for any criminal or tortious acts.
For example, what if a civilian is wrongfully killed, wounded, assaulted or detained by military personnel during these operations? What are the rules of engagement for military personnel to enter into and continue combat with opposing forces? Under what law could military personnel arrest, detain, search and interrogate suspects like their counterparts in the police force could under the Criminal Procedure Code and controversial legislation like the Prevention of Terrorism Act 2015 (POTA) and the Security Offences (Special Measures) Act 2012 (SOSMA)?
The Prime Minister should not exploit Malaysia’s and the region’s insecurity by consolidating more powers upon himself through the NSC and in defiance of DYMM Yang di-Pertuan Agong and the Federal Constitution. Such action undermines the rule of law, due process and all democratic principles.
As there is apparently a serious gap in the legality of deploying military personnel during peace time, we call upon the NSC to reconsider such deployment and let the police perform their duties to maintain law and order and preserve peace and security in the country.
Lawyers for Liberty