The Dewan Negara is scheduled to debate the proposed National Security Council Bill 2015 (NSC Bill) on Monday, Dec 21, 2015. It was hurriedly passed by the Dewan Rakyat on Dec 11, 2015.
We already have a National Security Council, known in Bahasa Malaysia as the Majlis Keselamatan Negara (MKN). On Feb 23, 1971, the cabinet agreed to establish the MKN. It was formally constituted on July 7, 1971. In the document 83/750/71 of the Cabinet meeting of July 31, 1971, the role of the MKN was summarised as follows:
“Since the future racial peace in this country depends on how well the government handles the sensitive issues, it is suggested that the NSC shall be the body to look into the matter.”
According to the MKN website, the source of the MKN’s authority is Arahan MKN No.1 which is dependent on the Emergency (Essential Powers) Act 1979.
MKN in jeopardy
If this is correct, then immediately the legal basis for the continuing existence of the MKN is placed in serious jeopardy.
When Prime Minister Najib Abdul Razak sought to recapture the political initiative by announcing on Sept 15, 2011 the repeal of the three Proclamations of Emergency that had been declared in 1966, 1969, and 1979 respectively, and which were still in existence, he set of a chain of events that has led to this hurried push to pass the NSC Bill.
Following on from this announcement, the Dewan Rakyat on Nov 24, 2011, annulled the three Proclamations of Emergency. On Dec 20, 2011, the Dewan Negara did likewise. Thus, pursuant to Article 150(3) of the Federal Constitution, the three Proclamations of Emergency ceased to have effect on Dec 20, 2011. This started a legislative countdown of six months, pursuant to Article 150(7) of the Federal Constitution:
“At the expiration of a period of six months beginning with the date on which a proclamation of emergency ceases to be in force, any ordinance promulgated in pursuance of the proclamation and, to the extent that it could not have been validly made but for this Article, any law made while the proclamation was in force, shall cease to have effect, except as to things done or omitted to be done before the expiration of that period.”
On June 19, 2012, all emergency ordinances and any laws that were made that could not have been validly made but for the provisions of Article 150, would cease to have effect. Around mid-2012, Parliament passed several new laws to re-legislate the subject matters of ordinances that were about to cease to have effect. We saw, for example, the Territorial Sea Act 2012 to replace the Emergency (Essential Powers) Ordinance No7 of 1969, which delimited Malaysia’s territorial waters, and the Malaysia Volunteer Corps Act 2012 to replace the rules that set up the Ikatan Relawan Rakyat or Rela under the Emergency (Essential Powers) Act 1964. (See the article about Rela being in legal limbo published on Malaysiakini on May 30, 2012.)
What appears to have been overlooked is that the Emergency (Essential Powers) Act 1979 would also cease to have effect, and with it, the legal basis for the MKN. If this is correct, then the MKN has been operating without any legal basis for almost three-and-a-half years since June 19, 2012.
Why the haste to pass the bill?
The government should come clean and let us know if this is indeed the case. It owes Parliament and the people an explanation - why the indecent haste to pass the NSC Bill. It cannot simply be about terrorism, since the government has more than enough laws to deal with the threats.
The NSC Bill is clearly being used to address this legal lacuna, as can be seen by the provisions of Clause 43 of the NSC Bill. The Explanatory Note mysteriously fails to explain the rationale of Clause 43. It would appear that the government is hoping to use the occasion of the proposed new law not only to quietly retroactively legitimise the MKN but also to create the MKN as a fully-fledged statutory body with its own department, director of operations, director-general and bureacracy.
However, in its desire to do so, it is missing the opportunity to set up a forward-looking agency that would identify and coordinate intelligence in relation to national security and provide the government of the day with critical advice on dealing with national security. Rather than setting up a professional and modern advisory MKN, it is hell-bent on creating an alternative power structure that would act as an implementor of political objectives rather than an initiator of policy options.
The powers being given to the MKN are similar to that given to the National Operations Council during the two years following the May 13, 1969 race riots. Even a fair amount of the language and terminology used in the NSC Bill has been lifted directly from Emergency Ordinances, as though someone has done a hasty ‘cut and paste’ job. This is not what is needed.
The two models of a national security council to which the government has repeatedly referred to, that of the United States and the United Kingdom, are not operational organisations. Rather, they are coordinating bodies which bring together all key personnel and agencies so that national security policy may benefit from complete integration and comprehensive intelligence. Operational issues are still left to the various agencies, working within their respective scope and terms of reference, and under their respective laws.
Checks and balances
Neither do the national security councils of the United States and United Kingdom exist or act in isolation. Both are under the oversight of Parliament, via bipartisan intelligence and security committees of the House of Representatives and the Senate in the United States Congress and the House of Commons. This means accountability to both government and opposition members of Parliamentary select committees.
In Malaysia, conveniently, we do not have such committees. This is therefore the appropriate time to put into place such committees, which the Speaker of the Dewan Rakyat, the opposition and civil society have all called for, and which the government has repeatedly ignored. This must be done before the MKN is re-legitimised.
Defining national security strategic objectives Lam Choong Wah, senior fellow at the thinktank Research for Social Advancement (Refsa), has said that while he agrees with the institutionalisation of the MKN, he is of the view that we have yet to clearly define what our national security strategic objectives are. He spoke at Friday's Bar Council forum on the proposed NSC Bill.
As a parallel, the United Kingdom’s National Security Council, which was only set up in 2010 by Prime Minister David Cameron, was the result of and response to the many security and defence issues facing the United Kingdom which had been the subject of hearings by the House of Commons Foreign Affairs Select Committee. Numerous policy and position papers, security assessments and risk reviews had preceded it.
Policy vacuum on national security
In Malaysia, there has been no proper debate on national security strategic issues or publication of risk assessments of Malaysia by the government for discussion in Parliament. There is a policy vacuum.
Lam’s argument is that when one looks at the United States or the United Kingdom, their NSCs clearly focus on foreign policy and defence objectives. Malaysia’s Foreign Minister is not even a member of the MKN.
It is self-evident that the current proposed NSC Bill is a confusing conflation of different objectives. In one and the same piece of legislation, you find provisions for the setting up of the MKN, the purposes of the MKN and the powers of the MKN. Dangerous for democracy, the MKN advises the prime minister, not the cabinet.
One of the powers of the MKN is to control and coordinate government entities. This means that it can effectively take over ministries, department and agencies of any state government, rather than merely coordinate with them.
Then the NSC Bill shifts from policy to making provisions for operational issues within a security area declared by the prime minister on the advice of the MKN. The director of operations is tasked with establishing unified commands of the security forces, and to supervise, control and co-ordinate their deployment. This is highly irregular since operational issues should remain the purview of the relevant agencies, and the MKN should only have powers of coordination.
Sweeping powers
The MKN is therefore set up as an alternative executive structure not accountable either to the cabinet or Parliament. Only the prime minister can declare a security area. Only he can decide to extend the duration of declaration of a security area. Only he can make regulations.
Security forces operating within a security area are given sweeping powers of search, arrest and seizure without warrant, brushing aside legal and constitutional protections. They can order the evacuation and resettlement of communities, and then destroy unoccupied property. The director of operations can exclude individuals from a security area, impose restrictions on movement including declaring a curfew, and commandeer the use of property.
Without for once ever using the word ‘emergency’, the MKN is designed to operate like the National Operations Council (NOC) set up during the 1969 Emergency, which was headed by Najib’s father, former prime minister Abdul Razak Hussein.
However then, there was at least a proclamation of an emergency by the Yang di-Pertuan Agong under Article 150 of the Federal Constitution and the token delegation of executive power of the federal government under Article 39 of the Federal Constitution to the NOC by way of an Emergency Ordinance.
Today, even those legal and constitutional niceties have been ignored. The declaration of a security area does not require a proclamation by the Yang di-Pertuan Agong.
Another concern that has been raised is that command and control authority of the armed forces in a security zone would be compromised; it would be removed from the Yang di-Pertuan Agong, pursuant to Articles 41 and 137 of the Federal Constitution, and placed in the hands of the MKN, chaired by the prime minister. This gives the prime minister unlimited power to direct the use of the armed forces and the police.
Security forces operating in a security zone would have absolute immunity from legal consequences for any act or omission done in good faith. Security forces may also use reasonable and necessary force proportional to the perceived threat. Any death occurring within a security area, whether of a member of the security forces or a civilian, would not require a death inquest if a magistrate decides in his sole discretion not to hold one. The provision for this uses the exact language of a 1969 Emergency Ordinance. Security forces can therefore act with impunity.
Need coherent policy
For the reasons articulated above, the NSC Bill, as it currently stands, is misguided and mistimed. It is a mish-mash of multiple and mixed motives. A badly-drafted, poorly thought-through piece of legislation as this will not solve problems, only create more.
The rakyat should call for a reconsideration of the NSC Bill by Parliament. The Dewan Negara should defer discussion and deliberation of the NSC Bill until a more cogent and coherent national security policy has been articulated and agreed.
ANDREW KHOO is co-chair of Bar Council Malaysia’s Human Rights Committee. He writes in his personal capacity. -Mkini
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