BY AMBIGA SREENEVASAN
The Senate (unsurprisingly) passed the National Security Council Bill 2015. This, despite Senators from both sides of the political divide voicing a range of concerns about it. That did not stop the government from pushing the Bill through without compromise.
Lawyers and activists across the nation have been warning for weeks of the dangers of the Bill and how it violated the Federal Constitution and the sanctity of the rule of law. It would have been in the interests of the nation to have had further discussion on it. Yet the government remained stubborn and did not even show a willingness to listen to reason. What we had was a government acting in haste, willing to overlook clear constitutional and legal impediments to the Bill, and taking the attitude that they know best. This should have triggered alarm bells. It was therefore irresponsible to say the least, to deliver them this Bill, unaltered.
Make no mistake. This Bill gives absolute power to the Prime Minister to declare an area a “security area”. Once an area has been declared a “security area” it becomes a legal black hole. Anything can be done there by the security forces including arrest, seizure of property and even killing, without any of the usual legal safeguards.
“It is absolutely untrue that the Prime Minister has absolute power” thundered the Bill’s proponents. But the clear wording of the Bill contradicts them. They are set out below for the readers to judge for themselves.
Section 18(1) provides :
Where the Council advises the Prime Minister that the security in any area in Malaysia 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 of Malaysia, and requires immediate national response, the Prime Minister may, if he considers it to be necessary in the interest of national security, declare in writing the area as a security area.
Section 18(3) provides :
A declaration made under subsection (1) shall, but without prejudice to anything previously done by virtue of the declaration, cease to have effect upon the expiration of six months from the date it comes into force.
But Section 18(4) goes on to say :
Notwithstanding subsection (3), a declaration in force may be renewed by the Prime Minister from time to time for such period, not exceeding six months at a time, as may be specified in the declaration.
The upshot of these three provisions is that the Council’s role is merely advisory, and the Prime Minister is not obliged to take their advice. Furthermore, the Prime Minister, without reference to the Council, may in his sole discretion extend the declaration ad infinitum.
If this is not absolute power in the hands of the Prime Minister, then what is? If one studies the Bill carefully, it appears to provide “checks and balances”, but on closer scrutiny we can see they are anything but that.
Surely giving one person all powers over security with no checks and balances does not enhance security but could in fact compromise security.
The claim that there is Parliamentary oversight is equally flawed as Clause 18(6) only requires that the declaration be laid (not debated) before Parliament, as soon as possible after it has been made (which is any time).
The Minister argued in Senate yesterday that the declaration under the Bill is different from an emergency proclamation under Article 150 of the Federal Constitution. The obvious differences in wording do not matter, for example a declaration of security area in the Bill as compared to a proclamation of emergency under the Constitution. What matters is that, the effect is the same. Article 150 provides for a situation of “grave emergency” whereby “the security or the economic life or public order in the Federation or any part thereof” is endangered. It allows for a proclamation to be issued even before the actual occurrence of the event (thus covering a Lahad Datu situation with no problem). The NSC Bill, speaks of “security threat” which causes or is likely to cause serious harm to the people, or territories, economy, national key infrastructure of Malaysia or any other interest of Malaysia. This appears to cover more situations than that provided under Article 150 of the Federal Constitution.
The net effect is that the NSC Bill gives absolute power to the PM to decide if there is a security threat, including what may be covered in the nebulous wordings of “any other interest of Malaysia”. Given that the Sedition Act and other laws have been used to include any statement critical of the government or the Prime Minister, there is no telling what could be included in the definition of “any other interest of Malaysia”.
The Minister sought to assuage the fears expressed by some of the Senators saying that they will ensure that the Director of Operations is not a “sadist”. This response makes no legal sense and is an inappropriate response for a Minister to make to the Senate. Any legislation passed by Parliament that gives such awesome powers to any person or persons must have safeguards and checks and balances within the Bill itself. We are familiar with assurances given by the Government that new legislation will not be abused. So far, they have carried little weight.
The proponents of the Bill have also used the usual fear inducing statements like “the security of the nation is at stake, “they are on our shores” etc etc. What the government cannot answer is what is so unique about the security situation in this country that we must have far more draconian legislation than any other democratic nation including those that have more extreme security threats than Malaysia. They have not explained why they do not trust the police with doing the job, given the awesome powers they have under POTA, POCA, SOSMA etc etc. They must answer how we admirably protected the security of ASEAN leaders at the recent summit without the National Security Council Bill. They are also mistaken to assert we are not concerned about security. Everyone is concerned about security. Unfortunately this Bill is not about security.
The constant use of Lahad Datu, which is the only basis put forward for the Bill is also misleading. Firstly, Lahad Datu took place more than 2 years ago. Why the rush for this bill now? Secondly, what is the problem in a Proclamation of Emergency through the Article 150 route if there is a Lahad Datu incident elsewhere? In Lahad Datu, ESSCOM was established pursuant to the Preservation of Public Regulations 2013 of Sabah. This regulation was made under the Preservation of Public Security Ordinance 1962 of Sabah and a declaration of emergency by the then governor which is equivalent to a Proclamation by the King today.
The Minister had also said that “if” necessary, amendments can be made and presented at the next sitting. If they could wait till the next sitting to present amendments, why the rush to pass the Bill first? Why not discuss it in full and address all concerns before presenting the Bill at the next Parliament sitting?
Make no mistake about it. This Bill, rushed through in the way that it was with no check and balances, is nothing more than a grab for absolute power. And to happen right before the very eyes of the Cabinet, our Parliamentarians, and Senators is perplexing. Were they unaware of its true effects, or did they not care, or did they agree with it? What is most astounding is that they were all prepared to give up their own powers to one person. Why?
The Rakyat wanted more time to discuss the Bill. We were deprived of this by the very people who swore to uphold the Constitution and who were duty bound to speak for the rakyat. They will in time learn the gravity of this mistake but unfortunately it will be too late. The lesson we have learnt to our detriment from the repeal of the ISA which was quickly replaced by substitutes, is that power once given, is almost impossible to remove.
How are our Members of Parliament and Senators proposing to explain the foisting of this abomination upon the country to the rakyat and to the next generation? How will they explain their role in passing a Bill in a rush that undermines our parliamentary democracy and the rule of law and puts us all in peril at the behest of one person? And worse, how will they explain why they ignored that precious document that binds us, the Federal Constitution?
On behalf of
The #TakNakDiktator Campaign Coalition
- Amnesty International Malaysia
- Centre to Combat Corruption and Cronyism (C4)
- National Human Rights Society (HAKAM)
- Pertubuhan Ikram Malaysia (IKRAM)
- Institut Rakyat
- Lawyers for Liberty
- Persatuan Promosi Hak Asasi Malaysia (PROHAM)
- Suara Rakyat Malaysia (SUARAM)