27
Dec
15

NSC Bill issue: Every legal power must have legal limits

VIEWPOINT: The proposed National Security Council (NSC) Bill 2015 takes away all constitutional guarantees and fundamental rights of citizens in respect of arrest, search and seizure of property which (if passed) can be ignored or suspended.

“This is a grave infringement of the Federal Constitution,” argued Malaysian Bar Council president Steven Thiru, adding the powers and independence of federal ministries, government departments and its agencies would be restrained and compromised on operations or matters concerning national security.

This means instrumentalities of the federal government or state governments – which could include Bank Negara Malaysia, the Securities Commission and the Malaysian Anti-Corruption Commission – would be made subservient to the NSC.

NSC members are appointed by and report directly to the prime minister. It’s not an independent body and would function at the dictates of the prime minister.

“The NSC’s scope of authority is broad, as “national security” is not defined in the bill. This provision is open to abuse, as the NSC would be able to treat almost any matter as one of national security,” Thiru said.

By definition, the NSC is empowered to advise the prime minister to declare any area in Malaysia as a “security area” if the NSC is of the view that the security in that area is “seriously disturbed or threatened by any person, matter or thing which causes or is likely to cause serious harm to the people, or serious harm to the territories, economy, national key infrastructure of Malaysia or any other interest in Malaysia, and requires immediate national response.”

“The provision gives the NSC (and in effect the prime minister) extremely broad discretion to declare an area as a security area given the variety of circumstances, which may not be genuine national security concerns at all, such as peaceful public rallies or protests,” he warned.

The declaration is for an initial six months and “may be renewed by the prime minister from time to time for such period, not exceeding six months at a time.”

This unbridled power allows the prime minister to extend the period for an unlimited number of times.

Upon a declaration, the NSC may issue executive orders that would include the deployment of security forces (such as the police and the armed forces) in the security area and may appoint a director of operations answerable only to it.

The bill does not provide for the qualifications of the director of operations, who has enormous and unrestricted powers, such as the power to remove any person from the security area, impose curfew, and control movement of persons or vehicles.

The deployed security forces, “may, without warrant, arrest any person found committing, alleged to have committed or reasonably suspected of having committed any offence under any written laws in the security area.”

Further, there is power to dispense with inquests in respect of members of the security forces and persons killed within the security area, as long as a magistrate “is satisfied that the person has been killed in the security area as a result of operations undertaken by such forces for the purpose of enforcing any written laws.”

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, and violates the provisions of Article 150.

The bill is therefore of questionable constitutional validity.

The Malaysian Bar urged the government to withdraw the bill and to respect the rule of law and Federal Constitution.

…more
NSC Bill issue: Every legal power must have legal limits
by K Harinderan
22 Dec 2015 – Ant Daily

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