LAMENTING MISREPRESENTATION OF THE NSC ACT

Faidhur Rahman Abdul Hadi, Malay Mail Online

It saddens me that although the National Security Council Act 2016 (“NSC Act”) has been duly passed, gazetted and came into force last 1 August, it continues to receive flak from various quarters, local as well as international. The former Opposition leader’s filing of an originating summons to declare the NSC Act unconstitutional struck me as particularly bizarre (Anwar files suit to declare NSC Act ‘unconstitutional’, stop council, Malay Mail Online, August 3, 2016).

While I have no comment on the main thrust of that application, i.e. the contention that Article 66(4) of the Constitution is unconstitutional, I note that the same Malay Mail Online reports quoted several other PKR lawmakers including Batu MP Chua Tian Chang, Subang MP R. Sivarasa and Padang Serai MP N. Surendran as saying that it was ‘an inevitability that the law would be used, as there was no reason to enact a piece of legislation if there was no intention to use it.’

Contrary to their claims, there are laws on the statute book that have never been used. The Public Order (Preservation) Act 1958 (POPA), for example, which is, as I had pointed out in an earlier article, very much the same as the NSC Act in that it too, allows for the proclamation within any area a state of danger to public order much like the declaration of a security area under the NSC Act. But yet I can find no instances in which POPA has ever been used in all its 68 years (and counting) in force.

Security areas were also able to be declared under the repealed Internal Security Act 1960 (ISA). But while they were certainly declared, no party appears to have ever objected to them. The only concern ISA detractors ever had was detention without trial under its provisions. They seemed content with all the other parts of the now repealed law, including declarations on security sectors.

Many quarters have expressed the concern that this kind of power shouldn’t be in the hands of the Prime Minister as, according to one Member of Parliament, N. Surendran, there is a reason why only the King has the power to declare security zones under Article 150 of the Constitution or the repealed ISA, and it is ostensibly to prevent abuse of executive powers and safeguard fundamental liberties (MP: There’s a reason why only Agong should have power to declare security zones, Malay Mail Online, July 28, 2016).

This kind of reading of the law clearly departs from the clear wording of Article 40(1) of the Constitution, which provides that in the exercise of his functions under the Constitution or federal law (and this includes the repealed ISA and Article 150 of the Constitution), the Yang di-Pertuan Agong shall act in accordance with the Cabinet or of a Minister acting under the general authority of the Cabinet, except as provided by the Constitution. This exception concerns only matters relating to the appointment of the Prime Minister in Article 43 of the Constitution and incidental matters, no more, and certainly does not involve any declaration of the sort envisaged by the repealed ISA or Article 150. So any exercise of power purported to have been done pursuant to the ISA or Article 150 would have, in actuality, been effectively of the Cabinet’s doing.

Further, were the MP to be correct, then surely the provisions of POPA must be worse, for unlike that of the NSC Act it is not the Prime Minister who makes a proclamation under POPA, but the Minister for Home Affairs. And unlike the Prime Minister, who must consult the National Security Council, this Minister has sole discretion under subsection 3(1) of POPA. Under subsection 3(6), this power can even be delegated further downwards to any Menteri Besar or Chief Minister of a State!

All this and more, including explicit allowing of the use of lethal weapons to disperse assemblies (as contained in subsection 5(2)) contained in an Act of Parliament enacted on 5 December 1958, just over a year after our Federal Constitution came into force on 31 August 1957. Are the present PKR lawmakers now saying that lawmakers of the time (which included our forefathers such as Tunku Abdul Rahman, Tun Tan Cheng Lock and Tun Sambathan, amongst others) clearly did not understand the Constitution nor its provisions, even though the same had been newly enacted back then? To suppose so would be absurd indeed, and would be a thoroughly contemptable questioning of their collective wisdom.

Detractors of the NSC Act should really ask themselves this question: If I care so much about the liberties of others, and this is the reason why I oppose the NSC Act, then why wasn’t I aware of or opposed to a fundamentally similar law that has been in existence for the past 68 years? Also, why am I concerned about a concept (declaration of security areas) that existed and was used under a previous law (the ISA) without objecting to the same?

The answer would seem to be in that these sort aren’t particularly concerned whether the people enjoy liberty after all, hence the misrepresentation of the NSC Act by them. Once again, pure partisan politics, and not genuine concern for the rakyat, is at play, and as usual, the rakyat has fallen victim to these politicians.

These unscrupulous politicians, as well as their allies, in particular those who sit on the executive committees of certain statutory bodies supposedly committed to human rights and impartial championing of justice without fear nor favour, but at a time when the people need clarification on the NSC Act provisions and similar related laws, choose to maintain a deafening silence in relation thereto.

* Faidhur Rahman Abdul Hadiis a lawyer and a member of Young Professionals (YP), a non-governmental organisation formed for the purpose of defending the supremacy of constitutional ideals in the determination of public affairs.