The true effects of a declaration as a 'security area' under NSC Act 2016 — Puthan Perumal

JUNE 17 — We know now that the  National Security Council Bill 2015 has  now become law, National Security Act 2016 (Act 776) (hereinafter referred to as “the Act”).

However, what  is  it about  this  piece  of  legislation  that  has  got Malaysians  all so worried . Let us look.

The National Security Council (hereinafter referred to as ‘the Council’) set up under the Act, empowers the Prime Minister, upon advice by the Council, to declare certain area in Malaysia as a security area. Who heads the said Council you might ask? It’s the Prime Minister. What is the definition of ‘security area” you might ask? No  one knows as it is not defined in the Act.

So, in what circumstances can the Prime Minister declare an area as a security area? I don’t  know why but in my mind, the words ‘opposition area’ keeps appearing as security area. It must be a figment of my imagination.

Section 18 of the Act states that 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 for the purpose of national security, declare in writing the area as a security area.

This section also provides that the declaration is only valid for six months subject to renewal being made by the Prime Minister for such period not exceeding six months at a time. It seems to suggest that a particular area can be declared as a security area indefinitely.

Special powers are given to the Security Forces in the security area.

Section 20 of the Act  empowers the Council to appoint a Director of Operations to be the person in charge of the operations in a security area. The Director of Operations shall be responsible to the Council.

Section  22  empowers the Director of Operations to exclude, by order in writing, any person from the security area or any part of the security area for a certain period as specified in the order.

The Director of Operations may also order any person or group of persons to be evacuated from the security area or any part of the security area, and resettled to an area as determined by the Director of Operations. Any person who fails to comply with this exclusion or evacuation order commits an offence.

Section 23  empowers the Director of Operations to issue a curfew order in the security area. Any person who fails to comply with this curfew order commits an offence.

Section 24  empowers the Director of Operations to direct any member of the Security Forces to control the movement of any person or any vehicle, vessel, aircraft or conveyance in and out of the security area, to control or prohibit the use of any road or water-way in, or air space above, any security area, and to close any road or water-way in the security area. The Security Forces are also given the power to stop and search any vehicle, vessel, aircraft or conveyance in the security area.

Section 25  provides the members of the Security Forces with the powers to arrest, without warrant, any person found committing, alleged to have committed or reasonably suspected of having committed any offence under any written laws in the security area.

Section 26  provides the members of the Security Forces with the powers to stop and search, without warrant, any individual, vehicle, vessel, aircraft or conveyance in the security area if the members of the Security Forces suspect that any article or thing being evidence of the commission of an offence is likely to be found, and to seize any article or thing so found.

This section also provides the power to enter and search, without warrant, any premises or place if the members of the Security Forces suspect that any article or thing being evidence of the commission of any offence is likely to be found on the premises or place, and to seize any article or thing so found.

Section 27 gives power to  any member of the Security Forces to enter into and search the premises and to seize anything found if he believes on reasonable grounds that there is a dangerous thing on any premises in the security area and it is necessary as a matter of urgency to make the dangerous thing safe or prevent it from being used.

Section 28  provides the members of the Security Forces with the power to search any person in the security area for dangerous things in the person’s possession.

Section 29  provides for the powers of the members of the Security Forces to seize any vehicle, vessel, aircraft or conveyance in the security area if the members suspect that the vehicle, vessel, aircraft or conveyance is likely to be connected with the commission of an offence.

If there was some crazy dude wielding a machine-gun and is in hiding somewhere, or some lunatics have indicated a bomb threat, or situations to that effect, it would seem that these powers are not so bad after all. Because once the ‘threat’ has been removed from a particular security area, so can the declaration as a security area.

But that is not all, however.

Section 30 gives  power to the Director of Operations or any person authorized by the Director of Operations to take temporary possession of any land, building or movable property in any security area in the interest of national security, or for the accommodation of the Security Forces.

Any person aggrieved by reason of the taking possession of the land, building or movable property may, within fourteen days after possession has been taken, give notice of his objection to an advisory committee.

The advisory committee shall consider the objection made by the aggrieved person and shall forward its recommendations to the Director General.

The Director General shall, after considering the recommendations of the advisory committee, give such directions as he thinks fit. If any land, building or movable property in any security area is taken possession under  section 30, compensation shall be paid to the aggrieved person.

Section 31  empowers the Director of Operations or any person authorized by him to demand any resources to be utilized in preserving national security in the security area and compensation shall be paid to the person whose resources are demanded under  section 31.

Section 32  provides that where temporary possession is taken of any land, building or movable property under section 30, or resources are demanded to be utilized under section 31, compensation in respect of the possession or utilization shall be as assessed by the Director General.

Section 33  empowers the Director of Operations or any person authorized by him to destroy or authorize the destruction of any building or structure left unoccupied in a security area if the building or structure is likely to be used by any person who intends, or is about, to act or has recently acted in a manner prejudicial to national security or by any other person who is likely to harbour any such person, and if it is impracticable in any other way to prevent such use.

Compensation shall be paid in respect of the destruction of any building or structure if the aggrieved person satisfies the Director General on certain requirements. Compensation payable under this clause shall be as assessed by the Director General.

Section 34  allows any member of the Security Forces in a security area to use such force against persons and things as is reasonable and necessary in the circumstances to preserve national security.

The member of the Security Forces is prohibited to use such force which is likely to cause the death of, or grievous bodily harm to, the person unless the member of the Security Forces believes on reasonable grounds that doing such action is deemed necessary to protect the life of, or to prevent serious injury to, another person (including the member), and to protect the security area or any part of the security area against a threat of armed attack.

The use of force against a person which subjects the person to greater indignity than is reasonable and necessary in the circumstances is also prohibited.

Section 35 deals with the power of a Magistrate or coroner to dispense with death inquiry or inquests on the dead body of any member of the Security Forces on duty in a security area or on the body of any person if the Magistrate or coroner is satisfied that the person has been killed in the security area as a result of operations undertaken by the Security Forces for the purpose of enforcing any written laws.

Section 38  provides for the protection of the Council, any committee, any member of the Council or committee, the Director of Operations, or any member of the Security Forces or personnel of other Government Entities in respect of any act, neglect, default or omission done or omitted by it or him in good faith in such capacity. No action, suit, prosecution or any other proceedings shall lie or be brought, instituted or maintained in any court.

Section 42 seeks to empower the Prime Minister to make regulations under this Act. 

This includes regulations  (a) to control the movement of persons, vehicles, vessels, aircrafts and conveyance in any security area; (b) to prescribe any prohibited action and activities during the period of the declaration made under section 18; (c) to prescribe the procedures for the taking possession of land, buildings and other movable property, and the procedures for demand for use of resources in any security area; and (d) to prescribe the procedures for the destruction of buildings and other structures in any security area.

Learned scholar Emeritus Professor Datuk Dr. Shad Saleem Faruqi had indicated the following:-

“My reservations about the Act are that it is like an Article 149 or 150 law. It suspends fundamental rights.  It  does not contain the mandatory formulae  that Articles 149 and 150  laws  must  contain. Procedurally it is an ordinary law, not a  law against  subversion and emergency. But content wise it suspends  fundamental  rights in the manner of laws against subversion and emergency.”

 The learned Prof Shad is absolutely right and on point. Our fundamental rights and liberties enshrined in Part II of the Federal Constitution can only be suspended if the Federal Constitution itself allows for it. No Act of Parliament should be empowered to do  suspend our fundamental rights.

It would also seem  that  this  Act is empowering the Prime Minister to ‘take over’ the Yang di-Pertuan Agong’s  constitutional  powers under Article 150 of  the  Federal  Constitution  to  issue a Proclamation of  Emergency  where the Yang di-Pertuan  Agong  is  satisfied  that  a grave emergency exists whereby the security, or  the  economic  life, or public order in the Federation or any part thereof is threatened.

Ultimately, it would definitely seem like there is much to be worried about when it comes to the enforcement and application of this Act in the not too distant future.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.