Politics behind the NSC Bill

In a land where the government is clothed with so much legal power, where political power is centralised to an incredible degree in the Office of the Prime Minister and where there are no checks and balances, why is there a necessity for a law like the National Security Council Bill?

Although the draftsman cunningly never uses the word “emergency” in the NSC Bill, the right of the prime minister to declare a “security area” and the frighteningly wide powers given to the director of operations and others in such an area clearly indicate that, as a matter of substance and reality, such wide powers are akin to emergency powers expressly provided under Part XI of the Federal Constitution, that is Articles 149 to 151. In effect, the NSC Bill is an emergency law.

On two grounds, the source of the legal power of the NSC Bill is, however, not Articles 149 to 151 of the Federal Constitution. First, because the events listed in Article 149 (1), which must as a condition be recited in an Act of Parliament enacted under Part XI, just do not exist.

Objectively, there are no conditions in Malaysia remotely close to or warranting the imposition of emergency rule. Secondly, because Article 150 (1) provides that only the Yang di-Pertuan Agong, after being “satisfied that a grave emergency exists”, may issue a Proclamation of Emergency.

The NSC Bill circumvents these two protective mechanisms that have so far been the basis of our emergency laws. It is therefore unconstitutional. It is a great lie to say that the government lacks sufficient legal power to deal with ISIS or foreign invasions or indeed, any other threat.

The best example of foreign invasion was during the Indonesian Confrontation of 1963 to 1966. The country coped. Internally, we dealt with the Communist insurrection, both before and after Merdeka, the May 13 riots of 1969, Memali and the Lahad Datu incidents. Despite amassing massive executive and legislative power, these incidents happened, suggesting a failure of intelligence, operational inadequacies or otherwise, but never because of a lack of legal power.

Carte blanche for the prime minister

The NSC Bill gives unlimited powers to the prime minister to declare any part of the country a security area as long as he is satisfied that “security… is threatened…” by four specific events or a catchall ground: “any other interest”. The latter expression is a “carte blanche” to the prime minister, whose public prosecutor has already charged persons who called on the prime minister to step down.

Thus, in the eyes of the public prosecutor, the prime minister is inter-changeable with the nation, and his interests represent the national interests. Based on the present record of this administration, the survival of the prime minister would be “any other interest” under Section 18.

There is a fiction of a National Security Council. But that is chaired by the prime minister. He has with him four cabinet members, the chief secretary to the government, the chief of defence forces and the inspector-general of police. None of the incumbents of these seven offices have so far shown any independence. The National Security Council will be a rubber stamp at the prime minister’s bidding.

The awesome powers of the director of operations (acting upon the directions of the prime minister or the National Security Council) include the power to exclude, evacuate, banish, arrest persons and search, seize, take possession of property, use resources and use necessary force in a security area.

Secrecy protects all communications

The director of operations can impose curfew and control the movements of persons. If death occurs, an inquest may be dispensed with. Secrecy protects communications among all persons acting under the NSC Bill. As the term “security area” has not been defined, it is sufficiently wide to allow the prime minister to declare the whole of Malaysia a “security area”.

Thus, “security area” is not confined to a town, village, state or region. Once a declaration is made, a security area is subject to these draconian laws for six months, but the prime minister can renew it indefinitely for six- month periods. Thus, it can remain for as long as the prime minister wants.

There is a notional safeguard: the two Houses of Parliament can revoke the declaration at any time. But the prime minister-led coalition controls Parliament through the whips. Political reality ensures that Parliament will not revoke any decision of the prime minister.

Why does the prime minister want this law to add to his already impressive armoury of supreme power? So that he also has an option to defer indefinitely the holding of the next general election, which would have to be held by August 2018, by declaring the whole or large parts of the nation a “security area”, which would then pave the way for elections to be delayed?

This NSC Bill is to arm the prime minister with further legal power to remain in office as long as he wishes, without having to face the electorate.

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TOMMY THOMAS is a prominent lawyer specialising in corporate litigation and insolvency, and commercial and public law. He has appeared in litigation involving bonds and other sophisticated financial instruments and has dealt with administrative, labour and constitutional cases. -Mkini