NSC Bill usurps the powers and discretion of the Yang di-Pertuan Agong — Concerned Lawyers for Justice

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Source: The Malay Mail Online

Source: Mkini

Source: Mkini

DECEMBER 4 — The news that the Dewan Rakyat has approved the National Security Council Bill 2015 (the Bill) on the night of December 3, 2015, [1] was received with great and grave concern by the Concerned Lawyers for Justice (CLJ).

The Bill, now awaiting tabling at the Upper House and Royal Assent, once operates as a law, would give unprecedented, almost absolute and concentrated power, to the Prime Minister through a newly created body called the National Security Council (NSC). It will in effect trump many fundamental safe-guards guaranteed by the Federal Constitution, and most glaringly, the Bill has the tendency to allow the NSC and the Prime Minister to usurp upon the powers and discretion of the Yang di-Pertuan Agong (YDPA) being the Supreme Head of the Federation [2] and the armed forces. [3]

Upon a cursory reading of the Bill, CLJ notes that the essence of this proposed law is that it establishes the NSC [4] — comprising of the Prime Minister as the chairman, the Deputy Prime Minister as the deputy chariman, the respective Ministers charged with the responsibility for defence, home affairs as well as communication and multimedia, the Chief Seretary of the Government, the Chief of Defence Forces, and the Inspector General of Police [5] — which in turn is given wide and unchecked powers to make a declaration of security area in the interest of “national security”, a term which is not even defined under the Bill and thus opened to being abused. [6]

Once an area is declared a security area, it will last for six months, [7] and following which, could be renewed unlimitedly by the Prime Minister from time to time. [8] Effectively, this would mean the declaration could last in perpetuity.

For so long as the declaration lasts, many constitutional provisions with regards to the rule of law would be cast aside in favour of authoritarian rule, wherein the authorities be given unrestrained powers to evacuate persons without their will, [9] to arrest without warrant for any suspected crimes, [10] to enter and search any premises also without warrant, [11] and to dispense with inquests [12] — just to mention a few. The NSC also assumes jurisdiction over and above agencies (that in any civilized legal system would be expected to remain independent) such as the Police Department, the Armed Forces, the Anti-Corruption Commission, the Bank Negara, all of which, “in the interest of national security” would have to report to the NSC through the Director General [13] who is appointed by the Prime Minister. [14]

While CLJ acknowledges that these powers are necessary when dealing with actual and real national security issues, they must and could only be exercised within the confines of Article 150 of the Federal Constitution, which in essence falls within the prerogative of the Yang di-Pertuan Agong, and not the Prime Minister or the proposed NSC.

National security issues must be above politics, and that is why the forefathers of this beloved nation and the framers of the Federal Constitution had had the wisdom to ensure that the discretion to suspend fundamental constitutional safeguards in the interest of national security be given only to the Supreme Head of the Federation — the YDPA — so that such emergency provision would not be abused for selfish purposes and serve merely as political tools of insecure politicians. It should be invoked only and unless in extremely dire situations.

Although in the winding-up speech during the proceeding to approve the Bill the Minister in the Prime Minister’s Department, Tan Sri Shahidan Kassim, said that the bill has no power to declare emergency in the country (which is the exclusive prerogative of the YDPA), [15] the truth of the matter is that the effect of declaring an area a security area, as empowered by the Bill, is similar, in its fact and its very spirit, to making a declaration of emergency, and thus is a clear usurpation upon the discretion and powers of the YDPA. The government should not play with words and semantics to wriggle its way out of wanton infringement of the very framework of the Federal Constitution.

Over and above everything else, the Bill even has the audacity to declare the authorities to be above the law, when providing that “no action, suit, prosecution or any other proceeding shall lie or be brought, instituted or maintained in any court against the [NSC] … or any member of the Security Forces or personnel of other Government Entities in respect of any act, neglect or default done or omitted by it or him in good faith, in such capacity.” [16]

In lights of all the above, CLJ urges that when the Bill is tabled at the Dewan Negara, the members of the August House would have the wisdom to reprimand in clear and unequivocal terms the Bill that was passed by the Dewan Rakyat. CLJ also, in all humility, crave that the Royal Highness Seri Paduka Baginda Yang di-Pertuan Agong would issue a Royal rejection upon the Bill that would be unconstitutional should it become law. It is at times like this that one is reminded, yet again, by the wise words of Lord Acton, that power tends to corrupt, and absolute power corrupts absolutely.

[1] See the news report “National Security Council Bill Approved”, New Straits Time Online, http://www.nst.com.my/news/2015/12/115376/national-security-council-bill-approved

[2] Article 32 of the Federal Constitution

[3] Article 137 of the Federal Constitution

[4] Section 3 of the Bill

[5] Section 6 of the Bill

[6] Section 18 of the Bill

[7] Section 18(3) of the Bill

[8] Section 18(4) of the Bill

[9] Section 22 of the Bill

[10] Section 25 of the Bill

[11] Section 26(2) of the Bill

[12] Section 35 of the Bill

[13] Section 17 of the Bill

[14] Section 15(1) of the Bill

[15] Ibid No. 1

[16] Section 38 of the Bill

* Concerned Lawyers for Justice or CLJ is a civil movement consisting of constitutionalist lawyers who are concerned for the state of the Malaysian nation.

 

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