Jadi akta tanpa perkenan Agong — Syahredzan Johan

Sumber: Sinar Harian

OLEH SYAHREDZAN JOHAN

NSC_Act_2016Suatu Rang Undang-undang (RUU) telah pun diluluskan oleh Dewan Rakyat dan Dewan Negara sebelum ini yang dikenali sebagai RUU Majlis Keselamatan Negara (MKN).

Mengikut proses biasa, suatu RUU selepas diluluskan oleh Parlimen akan dikemukakan kepada Yang di-Pertuan Agong untuk diperkenankan. Ini menurut Perkara 66 Perlembagaan Persekutuan.

RUU tersebut harus mendapat perkenan Yang di-Pertuan Agong dalam masa 30 hari dari tarikh ia dikemukakan. Tetapi, RUU MKN ini adalah luar biasa kerana ia menjadi akta walaupun tanpa perkenan Yang di-Pertuan Agong. Ini tidak pernah berlaku sebelum ini.

Menurut Perkara 66(4A) Perlembagaan Persekutuan, jika sesuatu RUU tidak diperkenankan oleh YDPA dalam masa 30 hari dari tarikh RUU tersebut dikemukakan, maka RUU seolah-olah diperkenankan oleh YDPA dan menjadi akta, secara ‘automatik’.

Ini boleh ditafsirkan bahawa YDPA tidak bersetuju dengan Akta MKN ini. Malahan, Majlis Raja-Raja sebelum ini menyatakan bahawa beberapa peruntukan dalam RUU tersebut harus diperhalusi.

Selepas Majlis Raja-Raja membuat pengumuman sedemikian, Peguam Negara sendiri menyatakan bahawa beberapa peruntukan RUU MKN ini akan dikaji semula. Namun, seperti yang disahkan oleh peguam negara sendiri melalui laporan media, tidak ada pindaan yang dibuat kepada RUU MKN yang menjadi akta ini.

Kita tidak tahu apakah sebab YDPA dan Majlis Raja-Raja berbuat sedemikian. Tetapi apa yang kita tahu, banyak pihak telah mengkritik undang-undang ini. Read more

A precedent but no blanket pass — Shad Saleem Faruqi

Source: The Star

BY SHAD SALEEM FARUQI

Article 66 (4A) permits the King to be bypassed but cannot apply to other institutions and agencies with constitutional role in law-making.

FOR the first time in the history of our Constitution, a Bill became law without the consent of the Yang di-Pertuan Agong. This was when the National Security Council Act 2016 (NSC Act), passed by the two Houses last December, was gazetted on June 7 without royal assent.

This draws attention to the complex constitutional procedures for enacting laws and specifically to Article 66 (4A), which permits the Government to bypass the King.

Bypassing the King: Under Article, 44 Parliament consists of the Yang di-Pertuan Agong, Dewan Rakyat and Dewan Negara. In normal circumstances, royal assent is needed for a Bill to become law.

However, in the event that the Yang di-Pertuan Agong refuses or delays assent, Article 66 (4A) provides that the Bill shall become law 30 days after it is presented to the King.

Chequered history: The Merdeka Constitution imposed no time limit for signifying royal assent but in August 1983, a Constitution Amendment Bill sought to insert a new Clause to provide that “if for any reason whatsoever the Bill is not assented to within 15 days of the Bill being presented to the Yang di-Pertuan Agong, he shall be deemed to have assented to the Bill and the Bill shall accordingly become law”. Read more

Sleepwalking towards dictatorship — Mariam Mokhtar

Source: The Heat

BY MARIAM MOKHTAR

How did we get from being a carefree, rich, diverse, multicultural and secular nation, to one that is fraught with tension, profligate, increasingly polarised and extremist?

Prime Minister Datuk Seri Najib Razak rolled out the National Security Council (NSC) Bill, at a time when we were distracted by PAS President Datuk Seri Hadi Awang’s Hudud Bill. Was Hadi’s role to distract us from the NSC Bill? Najib claimed that the NSC bill was to fight terrorism but we have our doubts. We have laws, to fight any potential terrorist threat.

National Human Rights Society (Hakam) head Datuk Ambiga Sreenevasan did not mince her words when she said that the NSC Bill was a grab for absolute power, when it was rushed through parliament.

We falsely believed we had one last line of defence, when the Bill was presented to Yang Dipertuan Agong and the Conference of Rulers (CoR), on 17 February, for their approval.

Last Tuesday, our fears were realised when the national gazette showed that the NSC Bill had been automatically passed on 18 February, the day after the CoR sent it back for amendment.

The Agong’s wishes were dismissed. This does not bode well for Malaysia. Read more

Law Code Changes Threaten Rights — Human Rights Watch

Source: Human Rights Watch

Phil Robertson, deputy director of Human Rights Watch's Asia division. — AP File Pic

Phil Robertson, deputy director of Human Rights Watch’s Asia division. — AP File Pic

Bangkok – Malaysia’s Senate should reject the government’s proposed legal changes that would undermine the rights of criminal suspects, Human Rights Watch said today. Amendments to the country’s Code of Criminal Procedure passed the lower house of parliament on May 19, 2016, and will be debated by the Senate in the session starting on June 13.

The proposed amendments are being made at a time when the government of Prime Minister Najib Razak has intensified its crackdown on criticism by civil society activists, Human Rights Watch said. The code changes would limit the discretion of judges to impose more lenient sentences, allow for previously inadmissible testimony by unidentified witnesses and written testimony, and allow the denial of bail for a broader range of political and other offences. Read more

NSC Act gazette no good without date, lawyers say

Source: The Malay Mail Online

The National Security Council (NSC) Act 2016 will remain dormant for as long as it is not gazetted with an enforcement date - MMO File pic

The National Security Council (NSC) Act 2016 will remain dormant for as long as it is not gazetted with an enforcement date – MMO File pic

KUALA LUMPUR, June 10 ―National Security Council (NSC) Act 2016 will remain dormant for as long as it is not gazetted with an enforcement date, lawyers said today.

They said the current gazette was issued without stating when the law will come into effect, noting that the requirement was also specifically stated in Section 1(2) of the Act.

“The gazette date is not the coming into force date. So there must be another government gazette to inform the date of coming into force,” Firdaus Husni, the Bar Council’s former constitutional law committee chairman, told Malay Mail Online. Read more

NSC is now a reality and here to stay until further notice

Source: Mkini

Source: Mkini

JUNE 09 — The National Security Council Bill has has been gazetted as law yesterday and is now the National Security Council Act 2016. The legislation did not receive royal assent, as provided by Article 66(4A) of the Federal Constitution –  a bill becomes law at the end of the 30 day period without the Yang di-Pertuan Agong’s assent.

The conference of Rulers in February said that some provisions in the bill should be refined. However, despite coalitions such at #TakNakDiktator reminding the Government that they should honour the request by the Council of Rulers, the National Security Council Bill was passed without the amendments.

Various human rights group, civil society organisations and the Malaysian Bar have voiced concerns over the wide ranging powers of this controversial legislation which would effectively give the Prime Minister unprecedented power over military command. Read more

Putrajaya’s new security law now gazetted without royal assent

Source: The Malay Mail Online

The National Security Council (NSC) Act 2016 was gazetted as law Tuesday, but the controversial legislation which gives the government emergency powers did not receive royal assent. — MMO file pic

The National Security Council (NSC) Act 2016 was gazetted as law Tuesday, but the controversial legislation which gives the government emergency powers did not receive royal assent. — MMO file pic

KUALA LUMPUR, June 9 ― The National Security Council (NSC) Act 2016 was gazetted as law Tuesday, but the controversial legislation which gives the government emergency powers did not receive royal assent.

The Bill became law at the end of the 30-day period without the Yang di-Pertuan Agong’s express assent, as permitted by Article 66(4A) of the Federal Constitution.

The article states that even if a Bill does not receive the King’s formal endorsement, it will automatically become law after 30 days as if the assent was given. As such, royal assent was considered to have been given for the NSC Act on February 18, 2016. Read more

The National Security Council Bill: A Colorable Exercise of Power — Malik Imtiaz Sarwar & Surendra Ananth

THE NATIONAL SECURITY COUNCIL BILL:
A COLORABLE EXERCISE OF POWER
[2016] 2 MLJ cxix

by

MALIK IMTIAZ SARWAR

LLB (Hons) IIUM; LLM (HK); M St (Oxon)
Advocate and Solicitor, High Court of Malaya

and

SURENDRA ANANTH

LLB (Hons) UKM
Advocate and Solicitor, High Court of Malaya[1]

 

INTRODUCTION

The National Security Council Bill 2015 (the ‘Bill’) was moved by the Minister in the Prime Minister’s Department, Dato’ Seri Shahidan bin Kassim, on 1 December 2015, in the Dewan Rakyat. In moving the Bill, the Minister invoked art 74(1) of the Federal Constitution (‘the Constitution’) and positioned the Bill as concerning matters that were within the Federal List under the Ninth Schedule of the Constitution. The Bill was passed by the Dewan Rakyat on 3 December 2015 and was subsequently passed by the Dewan Negara on 22 December 2015. In the ordinary course, by virtue of art 66(4A) of the Constitution, the Bill would have become law on 21 January 2016. However, for reasons that are not immediately apparent, the Bill was placed before the Conference of Rulers, which has since remitted the Bill back to the Government for review. The nature of their review sought has not been made public.[2]

The passage of the Bill through Parliament was not without controversy.[3] For immediate purpose the most relevant concerns raised by parties opposed to the Bill were whether the Bill was constitutional in light of provisions of the Bill allowing for the contravention of guaranteed fundamental liberties under Part II of the Constitution, and whether the Bill allowed for the usurpation of the exclusive powers of the Yang di-Pertuan Agong (‘YDPA’) under art 150 of the Constitution.

Close consideration of the Bill reveals that the said concerns are not misplaced. It further becomes evident that, additionally, the Bill violates the Constitution for having been enacted in a manner not countenanced by the same.

This article seeks to support these conclusions by demonstrating that the legislative power under art 74 of the Constitution could not have been justifiably invoked for the enacting of the Bill, or any law of a nature similar to it. It will be shown that key provisions of the Bill infringe Part II of the Constitution, and that Parliament could only enact a law containing such provisions as exceptional legislation under arts 149 or 150(5) of the Constitution. It will also be shown that the effect of the Bill is to unlawfully arrogate powers that are exclusively vested in the YDPA by art 150 of the Constitution to the Executive. Finally, in light of these mattes, it will be argued that the Bill is the product of a colorable exercise of power by Parliament. Read more

The National Security Council Bill: A Colorable Exercise of Power — Malik Imtiaz Sarwar & Surendra Ananth

THE NATIONAL SECURITY COUNCIL BILL:
A COLORABLE EXERCISE OF POWER
[2016] 2 MLJ cxix

by

MALIK IMTIAZ SARWAR

LLB (Hons) IIUM; LLM (HK); M St (Oxon)
Advocate and Solicitor, High Court of Malaya

and

SURENDRA ANANTH

LLB (Hons) UKM
Advocate and Solicitor, High Court of Malaya[1]

 

pdfINTRODUCTION

The National Security Council Bill 2015 (the ‘Bill’) was moved by the Minister in the Prime Minister’s Department, Dato’ Seri Shahidan bin Kassim, on 1 December 2015, in the Dewan Rakyat. In moving the Bill, the Minister invoked art 74(1) of the Federal Constitution (‘the Constitution’) and positioned the Bill as concerning matters that were within the Federal List under the Ninth Schedule of the Constitution. The Bill was passed by the Dewan Rakyat on 3 December 2015 and was subsequently passed by the Dewan Negara on 22 December 2015. In the ordinary course, by virtue of art 66(4A) of the Constitution, the Bill would have become law on 21 January 2016. However, for reasons that are not immediately apparent, the Bill was placed before the Conference of Rulers, which has since remitted the Bill back to the Government for review. The nature of their review sought has not been made public.[2]

The passage of the Bill through Parliament was not without controversy.[3] For immediate purpose the most relevant concerns raised by parties opposed to the Bill were whether the Bill was constitutional in light of provisions of the Bill allowing for the contravention of guaranteed fundamental liberties under Part II of the Constitution, and whether the Bill allowed for the usurpation of the exclusive powers of the Yang di-Pertuan Agong (‘YDPA’) under art 150 of the Constitution.

Close consideration of the Bill reveals that the said concerns are not misplaced. It further becomes evident that, additionally, the Bill violates the Constitution for having been enacted in a manner not countenanced by the same.

This article seeks to support these conclusions by demonstrating that the legislative power under art 74 of the Constitution could not have been justifiably invoked for the enacting of the Bill, or any law of a nature similar to it. It will be shown that key provisions of the Bill infringe Part II of the Constitution, and that Parliament could only enact a law containing such provisions as exceptional legislation under arts 149 or 150(5) of the Constitution. It will also be shown that the effect of the Bill is to unlawfully arrogate powers that are exclusively vested in the YDPA by art 150 of the Constitution to the Executive. Finally, in light of these mattes, it will be argued that the Bill is the product of a colorable exercise of power by Parliament. Read more

Rulers want NSC bill refined, #TakNakDiktator reminds gov’t

Source: Taknakdiktator / Malaysiakini

TakNakDiktator-AmbigaSreenevasan

Pic — Malaysiakini

The #TakNakDiktator campaign coalition today reminded the government to honour the Conference of Rulers’ call for the National Security Council (NSC) bill to be refined.

Their statement comes ahead of the next Parliament session which begins on Monday.

Speaking on behalf of the group, former Bar president Ambiga Sreenevasan also thanked the Malay rulers for not signing off on the bill as yet.

“We note that according to the federal gazette, the Yang Di Pertuan Agong has not yet given his royal assent to the NSC Bill even though it has been over two months since the bill was passed by the Dewan Negara.

“We welcome the prudence of the Conference of Rulers to uphold the separation of powers that is essential to preserving democracy in Malaysia,” she said in a statement today. Read more