HAIL THE NEW 'DICTATOR': How bad is Najib's National Security Council (NSC) Bill?

What are anti-terrorism laws?

Laws enacted to circumvent terrorism by allowing authorities to limit personal freedom for society’s collective security.

Terrorists operate in secrecy and this makes it hard to detect. Therefore, society has to give up some freedom in order to allow authorities to weed out these terrorists. Although this compromise is broadly agreed, the extent of scrutiny by authorities might impede on fundamental human rights, especially individual privacy.

Everyone knows there is a price to pay in privacy for collective security. The question is: how much?

Terrorist attacks like 9/11, Boston Marathon bombing, and the recent Paris shooting, had pushed anti-terrorism laws to the centre again.

Malaysian Anti-Terrorism Laws

In the past, we had the Internal Security Act 1960 (repealed in 2012) which enable authorities (Home Minister) to detain a person for a period, if they were believed to be a threat to national security. Later, the Emergency Ordinance 1969 (http://www.vertic.org/media/National%20Legislation/Malaysia/MY_Emergency_Public_Order_Ordinance.pdf) (repealed in 2013) upon the Yang Di-Pertuan Agong emergency declaration, police has full rights to detain, arrest, question, and search individuals without a warrant.

The recent Security Offences (Special Measures) Act 2012 (SOSMA) allowed detention up to 28 days and also tracking devices to be placed onto released suspects.

On the other hand, Prevention of Terrorism Act 2015 (POTA), allows for detention, without warrant, up to a maximum of 60 days if a person falls under the suspicion of terrorist activities.

Anti-terrorism laws around the world

1. United States: Patriot Act (http://www.justice.gov/archive/ll/highlights.htm)

This Act allows the President to seize property of any foreigners suspected of war or attack on US, surveillance by interception of telephone calls (most controversial) and tighter border control. It may also require banks to stop terrorist money-laundering.

2. United Kingdom: Anti-Crime, Terrorism and Security Act 2001 (http://www.legislation.gov.uk/ukpga/2001/24/contents)

It allows for indefinite detention of foreign nationals suspected of terrorism without trial and freezing of assets.

The highest court in UK expressly disapproved of this legislation as it contravenes human rights, with Lord Hoffmann famously quoted as saying, "The real threat to the life of the nation ... comes not from terrorism but from laws such as these.”

3. Canada: Anti-Terrorism Act 2001 (http://laws-lois.justice.gc.ca/eng/acts/a-11.7/)

Allows for 'secret' trials, preemptive detention and expansive security and surveillance powers. Many sunset provisions expired, but was renewed in the Combating Terrorism Act 2012 after Boston bombing.

It was amended to include crimes for leaving Canada to join terrorist groups, with increased maximum prison sentence.

National Security Council Bill 2015

The Bill was passed in Parliament on Thursday, 3rd December 2015. Primarily intended to combat terrorism, a National Security Council (NSC) will be established and headed by the Prime Minister under the law. It encompasses broad powers to declare ‘security areas’ and arrest, detain and seize property without warrant.

Why are we concerned?

1. Wide powers under clauses - lack transparency, accountability and respect for individual rights

Clause 6: NSC consists of PM, DPM, Minister of Defence, Minister of Home Affairs, Minister of Communication and Multimedia, Chief Secretary to the Government, Chief of Defence Forces, and the Inspector General of Police. All are appointed by PM and report directly to the PM.

Clause 18 (1): PM has full discretion to decide where is ‘security area’

Clause 18 (3) and (4): Initial declaration of ‘security area’ lasts for 6 months but may be renewed by PM indefinitely

Clause 22 - 30: security forces can arrest without warrant; stop and search; enter and search premise; take possession of any land, building or movable property.

Clause 37: All NSC’s affairs are done is absolute secrecy

Clause 38: No action or lawsuit can be brought against NSC

The term “national security” was not clearly defined. It can be ‘economic stability’, ‘national unity’, or ‘political stability’.

2. Hasty passage of the Bill

The Bill was presented to Parliament and passed within 2 days. Member of Parliaments, lawyers and human rights activists have raised concerns over the lack of consultation. Alor Setar MP called it the ‘death to democracy in Malaysia’. (http://www.theedgemarkets.com/my/article/national-security-council-bill-%E2%80%98death-sentence%E2%80%99-democracy-says-pakatan)

3. Constitutional validity - overstepping Yang Di-Pertuan Agong (YDPA)’s powers?

The Bill effectively provides the PM emergency powers without the need to declare a state of emergency under Article 150 of the Federal Constitution, which was a power previously exclusive to the YDPA. The extensive powers also mimic those under the Emergency Ordinances, a law that was repealed by the parliament in 2011.

Conclusion

The potential abuse of the law is unsettling. Never had we a law that provides wider and unfettered powers in the hands of a few executive elites. Since there are already enough laws to combat terrorism in Malaysia, a new law that further encroaches on individual liberty is grossly alarming.

The rash manner in which it was passed only fuels speculation on the real basis behind it. We strongly urge the government to withdraw the National Security Bill 2015.

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