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The
Malaysian Bar is appalled that the National Security Council Act 2015
(“NSC Act”) – which was passed by the Dewan Rakyat on 1 December 2015
and the Dewan Negara on 22 December 2015 – was gazetted on 7 June 2016.
The
NSC Act has made legislative history, as it appears to be the
first-ever legislation to be gazetted without having received Royal
Assent from the Yang di-Pertuan Agong. It became law on 18 February
2016 under Article 66(4A) of the Federal Constitution, which states: “If
a Bill is not assented to by the Yang di-Pertuan Agong within [thirty
days after it is presented to him], it shall become law at the
expiration of [thirty days] in the like manner as if he had assented
thereto”.
According
to news reports, Attorney General Tan Sri Dato’ Sri Haji Mohamed Apandi
bin Haji Ali (“Tan Sri Apandi”) had briefed the Rulers on the NSC Act
at the 240th Conference of Rulers held at the Istana Negara
on 17 February 2016.[1] The Office of the Keeper of the Rulers’ Seal
then issued a statement on the same date, stating that the Malay Rulers
were of the opinion that the Prime Minister and Tan Sri Apandi should
study and review some of the clauses in the NSC Bill.[2] The following
day, Tan Sri Apandi told the media that certain provisions would be
scrutinised again.[3]
The
NSC Act was nevertheless gazetted on 7 June 2016. It is worrying that
this draconian piece of legislation has been dealt with in such a hasty
and peremptory manner. There has also been no explanation as to why the
NSC Act was gazetted despite the reservations of the Rulers.
It
is also shocking that the Government has chosen to resort to Article
66(4A) of the Federal Constitution. It is an extreme constitutional
provision that bypasses the procedure for express assent of the Yang
di-Pertuan Agong, and consequently diminishes the inherent system of
checks and balances provided by our constitutional monarchy. The
Government’s actions are particularly glaring, given the widespread
public outcry over the NSC Act.
The
NSC Act confers and concentrates vast executive powers in the National
Security Council (“NSC”), which is chaired by the Prime Minister and
functions at his dictates. The Cabinet is subordinated to the NSC,
which is able to exert control over regulatory authorities such as Bank
Negara Malaysia, Securities Commission, and the Malaysian
Anti-Corruption Commission. Even the authority of State Governments can
be overridden.
The
NSC’s scope of authority over matters of “national security” is
expansive. As the term “national security” is not explicitly defined in
the NSC Act, the NSC would be able to treat almost any matter as one of
national security.
Further,
the NSC (and in effect the Prime Minister) has extremely wide
discretion to declare an area as a security area. The Prime Minister
may also extend the period of such declaration for an unlimited number
of times, and therefore for an indeterminate duration that could extend
for years.
The
NSC Act enables the Prime Minister, either unilaterally or through the
NSC, to exercise authoritarian executive powers. These powers are in
effect emergency powers, but without the need for a proclamation of an
emergency under Article 150 of the Federal Constitution. This usurps
the powers vested in the Yang di-Pertuan Agong in, and violates the
provisions of, Article 150 of the Federal Constitution. The Act is
therefore of questionable constitutional validity.
Moreover,
the extensive powers under the Act effectively resurrect the powers
granted to the Government under the Emergency Ordinances, which were
repealed by Parliament in 2011.
The
Government’s refusal to engage meaningfully with critics of the NSC
Act, and its disregard for constitutional safeguards, are ominous. These
have all the hallmarks of authoritarianism.
Steven Thiru
President
Malaysian Bar
15 June 2016
[1] “Rulers feel some provisions of security bill should be refined”, Borneo Post, 18 February 2016.
[2] “Govt to review controversial bill: Apandi”, My Sin Chew, 19 February 2016.
[3] Ibid.
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