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OPINION, Dec 10 — After the National Security Council (NSC) Bill was tabled, it was met with condemnation by civil society especial human rights groups, the Malaysian Bar Council and many netizens.
The NSC Bill was said to be insidious, unconstitutional and violates human rights, a “tool for repression”, “an assault on democracy” and “an abuse of human rights”.
Against the backdrop of recent events relating to 1Malaysia Development Berhad (1MDB) and the “RM2.6 billion donation”, exacerbated by the prosecution of critics and whistleblowers, there is fear that the NSC Bill will establish a “dictatorship rule” or a “police state.”
Minister in the Prime Minister’s Department Shahidan Kassim, in defending the Bill, said that it does not contravene basic human rights and enables better coordination and a uniform response in the event the country is faced with security threats.
A reading of the NSC Bill will reveal the following:
a) It does not accord human rights and constitutionally-guaranteed fundamental liberties to affected persons in ‘security areas’ when martial-law like measures are imposed: curfews, evacuation, arrests, searches and seizures without warrants etc. The affected human rights under the NSC Bill include right to life and liberty, freedom of movement, right to property, freedom of speech, assembly and association.
b) It enables more than ‘coordination’; it enables ‘control’. The control and coordination powers by the NSC are exercisable as soon as the NSC is established as long as it concerns national security operations and matters of national security.
Imperative to question
Because of its monumental repercussions, it is imperative that every Malaysian questions the government for introducing this proposed set of laws.
What is the scope of the ‘national security’ the NSC bill purports to oversee? What urgent mischief does the NSC Bill seek to address? How are current laws insufficient to address the mischief? How will the NSC Bill benefit Malaysia’s citizens?
The Explanatory Statement to the Bill does not reveal any answers to these questions. Further, why the haste in bulldozing such a substantive, controversial bill through Parliament?
Can Parliament through the NSC Bill hand over to the prime minister and the NSC unbridled powers to control and coordinate all and any government body, both federal and state, in matters of national security operations? 107 Members of Parliament voted YES.
With the magic passwords ‘national security threat’ and ‘security area’, can the NSC take away constitutionally guaranteed human rights? 107 Members of Parliament voted YES.
107 voted YES to the NSC Bill
Never mind that the NSC Bill is flawed and unconstitutional. Aside from conflicts with fundamental rights guaranteed by the Federal Constitution, the NSC Bill appropriates constitutional provisions dealing with emergency powers.
Martial law-like measures may be imposed without going through any proclamation of emergency. Emergency powers vested in the Yang di-Pertuan Agong under the Federal Constitution are usurped by the NSC.
Never mind what the Federal Constitution and other laws may say, the NSC can direct any government entity (both federal and state) on matters concerning ‘national security’.
For ‘operations concerning national security’, the NSC can take over control of any such government entity [e.g., Bank Negara, Malaysian Anti-Corruption Commission (MACC), Attorney General’s MACC, AG’s Chambers, Election Commission, state treasuries — and even the local government parking ticket office if it chose to do so!].
There is no requirement that these powers be exercised only in the event of a threat.
Never mind that ‘national security’ is not defined in the NSC Bill, neither are ‘operations’ and ‘matters’ concerning ‘national security’ set out in the NSC Bill. If the scope of “operations” is anything like that shown in “Enemy of the State”, we are all in for a nightmare and there is no waking up.
Never mind what the Constitution and other laws may say, the NSC will determine policies and dictate measures on the undefined ‘national security’, including matters of sovereignty, territorial integrity, defence, socio-political stability, economic stability, strategic resources, national unity and other interests relating to national security.
Never mind that the PM can declare any area — big or small, private or public — as a “security area” and thereafter impose martial law-like measures for curfews, evacuation and relocation, appropriation properties and assets etc.
Never mind what the Federal Constitution and other laws may say, the NSC has power to conduct arrests, searches and seizures without warrants in ‘security areas’.
Never mind that the PM may unilaterally make regulations for security areas — to move anyone or anything, to prohibit any act or activity, to take possession any property (lands, buildings, movable assets included) and to destroy any buildings or structures.
Never mind that in making such regulations, the PM may also make any previously legal act or omission an offence punishable by a fine not more than RM100,000 and/or imprisonment of not more than five years.
Never mind what the Federal Constitution and other laws may say, if one was killed (regardless of how or why) in a security area, investigation on the cause of death may be refused by a magistrate on grounds that the person died as a result of the security forces (police/army) operations to enforce any written laws.
Never mind that the NSC comprises the PM and seven other persons whom he can appoint and sack.
Never mind that the NSC is not subject to any oversight.
Never mind that no one can take any legal action against the NSC and its officers (including Security Forces) as long as the NSC or the person had acted in good faith in their capacity in NSC.
Never mind that there is no ‘sunset’ clause in the NSC Bill — once set, up, the NSC is here to stay. Is Malaysia is in a perpetual state of war, emergency or under constant and immediate threats that the NSC is consistently needed? [Compare this to Mageran shelf life]
It has been written that NSC Bill should “scare the living daylights” out of any Malaysian. It should. It is laws like the NSC Bill that by their very nature, challenge and undermine the foundation by which our nation was built as a free parliamentary democracy.
Our nation’s security
National security should be defined in the context of our people’s safety, welfare and happiness, founded on principles of liberty and justice (as declared in Tunku Abdul Rahman’s Independence Speech in 1957) and which essential elements are enshrined in the Federal Constitution.
The Federal Constitution guarantees the rights and prerogatives of the Rulers, our fundamental rights and liberties and the essential checks and balances for parliamentary democracy. The protection of rights and the preservation of the checks and balances of power as set out in our Federal Constitution are key to our national security.
These rights, checks and balances have over the past 30 years been trimmed bare by the Executive — through numerous constitutional amendments (of most devastating was the amendments in 1988 to Article 121 which curtailed the powers and jurisdiction of the High Court) and legislation like the recent Prevention of Terrorism Act 2015 (POTA), the Security Offences (Special Measures) Act 2012 (SOSMA), the Multimedia and Communications Act 1998, the Universities and University Colleges Act 1971 and amendments to the Sedition Act 1948.
Our national security is at risk because the Rakyat’s constitutional rights and liberties are continuously being stripped and shredded. Freedoms of expression, equality, justice and dignity are no longer guaranteed.
Our national security is at risk because our economy is sabotaged by corruption and theft. The clear and present danger to our nation, the real threat to our national security lies in the rise in failing state institutions, corruption and crime, racism, religious bigotry and contempt for intellectual public discourse.
I’ll end with the words of Benjamin Franklin: “They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety”.
And, yes, the NSC Bill must be aborted.
* Robyn Choi is secretary-general of the National Human Rights Society (HAKAM)
HAKAM-MMO Human Rights Day 2015 project
Since 1950, the world marks December 10 as Human Rights Day. It is a day to create awareness to fundamental human rights set out in the Universal Declaration of Human Rights (UDHR) as the common standard of achievement for all peoples and all nations.
This year, the National Human Rights Society, in collaboration with Malay Mail Online, is publishing seven articles over seven days to bring attention to seven specific interest areas concerning human rights in Malaysia.