Why the NSC Bill should scare the living daylights out of you

Khairie Hisyam Aliman
Malay Mail Online
Thursday December 3, 2015

DECEMBER 3 ― On Tuesday, minister Datuk Seri Dr Shahidan Kassim dropped a bombshell by way of the National Security Bill 2015 ― furore immediately erupted over the allegedly excessive powers this Bill seeks to confer to a sitting prime minister if it is passed into law.

But what are these powers exactly and what implications do they bring to us? On Wednesday, a copy of the Bill became available for download on the Parliament website, so I indulged my curiosity (because I have an unnatural reading preference).

In simple terms, the Bill seeks to set up a National Security Council with eight members, namely the sitting prime minister as chairman; the deputy prime minister as deputy chairman; the ministers in charge of defence, home affairs and communication/multimedia respectively; the chief secretary to the government; the chief of the armed forces; and the Inspector General of Police.

The council’s powers under the Bill can be summarised into two broad areas: to control and co-ordinate government entities on operations concerning national security as well as to issue directives to any government entity on matters concerning national security.

But that’s where the problem begins, because….

1. National security can be anything

While what “national security” is not explicitly defined in this Bill, Clause 4 which deals with the functions of the Council offers an indirect definition.

Among others, the Council will function to “formulate policies and strategic measures on national security, including sovereignty, territorial integrity, defence, socio-political stability, economic stability, strategic resources, national unity and other interests relating to national security.”

Think about that long sentence for a minute. Notice that the quote above explicitly includes “socio-political stability”, “economic stability” and “national unity” as part of what it says constitute “national security.”

This implies that matters of national security under this Bill may extend to a very wide spectrum of subjects which are not strictly limited to threats of terrorism and violence as we may think of it. Such vagueness only opens room for potential abuse.

Will socio-political stability be deemed threatened if members of Umno threaten to overthrow an incumbent president as part of an internal power struggle, for example? Will socio-political stability be deemed threatened if there is public discourse over Bumiputera rights and the position of Islam-related institutions such as Jakim?

Will national unity be deemed threatened if Malaysians gather for another public rally similar to those organised by Bersih, for example? Will national unity be deemed threatened if Malay leaders are criticised for their mistakes, even if such criticism are based on verifiable facts and sound logic?

Will economic stability be deemed threatened if members of the public publicly criticise government policies or actions concerning the economy and business environment, for example?

We don’t know where “national security” really ends, which means we don’t know where the jurisdiction of this Council really ends. For all intents and purposes, this Council seems empowered over anything and everything it thinks is covered by the phrase “national security.”

And that raises another question….

2. Vaguely wide powers over the whole country

Clause 5, which deals with the powers of the Council, states: “Notwithstanding any other written law, the Council shall have the power to do all things necessary or expedient for or in connection with the performance of its functions…”

Note the word “notwithstanding”, which Oxford Dictionaries interpret as “in spite of.” In layman terms, the Council can do anything it thinks is necessary in respect to its functions (see (1) above) regardless of whatever any other existing law of the country says.

That is essentially carte blanche for the Council, which the same clause further defines as including the authority to control and co-ordinate government entities on operations concerning national security as well as the power to issue directives to any government entity on matters concerning national security.

So what does “government entities” mean? The Bill defines this as any ministry, department, office, agency or any other body under the federal or state governments, any local authorities as well as the police and the army.

Couple this with the vaguely subjective definition of “national security”, this implies that the Council has potential influence on all aspects of governance nationwide. In other words, the Council may be able to do anything anywhere in the country so long as it believes national security is under threat.

The wording of Clause 4 suggests this pervasive authority will remain in place at all times without even declaring any area as a security area.

Speaking of which…

3. A security area is up to PM

An immediate focus of criticism in this Bill had been the powers of the prime minister to declare any area in the country as a “security area.” Any such declaration carries big implications because a lot of power is then conferred onto officers appointed to the Council to do as they think necessary.

But first, the security area declaration. This seems to hinge a lot on the prime minister’s discretion ― he may make any such declaration, on advice of the Council, if he believes national security in an area is seriously disturbed or threatened and requires an immediate national response.

Bear in mind that national security seems open-ended. The prime minister, as the wording of Clause 18 seems to imply, has full discretion to make such a declaration and it will take effect immediately.

This means the prime minister, in theory at least, can make any such declaration for any area where he thinks national security is under threat for whatever reason. That is a troubling amount of subjective judgment call by one person.

And as some observers have noted, this may overlap into the power of the Yang Di-Pertuan Agong to declare a state of emergency under Article 150 of the Federal Constitution.

A security area declaration will last for a maximum of six months but the prime minister can renew the declaration for another six months without any specified limitation on how many times such renewals can be done.

Further, while any declaration must be gazetted and presented to Parliament immediately, a declaration does not seem to require Parliamentary approval. Rather the only thing Parliament can do is to pass a resolution to cancel it ― if the Senate also passes a similar resolution, then the declaration is annulled.

Realistically, such cancellations are unlikely because the prime minister enjoys support of the majority of Parliament at least. By contrast a cancellation seems to require both Houses to pass a resolution to that effect and may not be valid if only one House votes in favour of annulling a declaration.

In other words, if the prime minister declares a security area, there is slim to none chance of that declaration being cancelled.

So what happens in a security area? Well…

4. Troubling powers in security areas

After an area is declared as a security area, the Council is empowered by Clause 19 to issue executive orders. These orders may include deploying the armed forces or any instructions to any government entity as defined above.

The Council is also empowered by Clause 20 to appoint a Director of Operations to be in charge of operations in the security area. And this position comes with wide-ranging discretionary powers.

First, Clause 21 specifies the Director of Operations’ duties to include doing anything the Council instructs him or her to do. Further, the same Clause gives the director “the power to do all things necessary or expedient for or in connection with the performance of his duties in the security area.”

In other words, there may be no limit to what the director may be empowered to do within a security area. If the Council wants something ― which can be anything ― done in the belief that it is relevant to the vaguely defined national security, the director is compelled to do it and is given legal power to do it.

Further clauses add more specific powers. For example, Clause 22 empowers the director to forcibly bar anyone from entering a security area or evacuate anyone already within to anywhere the director thinks proper.

This power is augmented by Clause 24 which gives the director powers to block roads, waterways and airspace to any vehicle and persons vis-a-vis the security area. Security forces may also seize any vehicle in the security area that is “likely to be connected” to any offence being committed against any law.

Clause 23 empowers the director to impose a curfew in a security area except on the Yang Di-Pertuan Agong, any police, military or government personnel on duty or anyone given exemption by the director.

Anyone who is convicted of failing to comply with these orders will be liable for a fine of up to RM100,000 or up to three years of jail time.

Further, Clause 25 allows any member of the security forces in a security area to arrest anyone without warrant if suspected of having committed an offence under any law. They may also stop and search any individual, vehicle or premises without warrant if there is suspicion that an offence had been committed against any law.

Clause 30 even empowers the director to take temporary possession of or even destroy any building or other assets in a security area if this is believed to be in the interest of national security. In doing this, the same clause permits security forces to do whatever is needed and to use “such force as appears to him to be reasonably necessary.”

There are more such discretionary powers accorded to the director and the security forces within a declared security area. The worrying part is that the exercise of such powers depend much on the discretion and personal judgment of the officers involved ― the room for potential abuse is too vast for comfort.

And that leads us to…

5. Will there be checks and balances?

With such great discretionary powers up in the air, can we expect a comprehensive check-and-balance mechanism to ensure there is absolutely no abuse of power? That’s a problematic proposition because, firstly, Clause 11 stipulates that the Council will determine its procedures and how it works on its own.

That means the Council is likely able to decide for itself how it should use its powers ― again, much riding on subjective discretion. And then there is Clause 37, which imposes absolute secrecy on any Council member or anyone with any knowledge of information relating to the Council’s affairs.

About this secrecy, Clause 37 does provide exceptions for the purposes of any civil or criminal proceedings, among others, but then again Clause 38 immediately says this:

“No action, suit, prosecution or any other proceeding shall lie or be brought, instituted or maintained in any court against the Council, any committee, any member of the Council or committee, the Director of Operations, or any member of the Security Forces or personnel of other Government Entities in respect of any act, neglect or default done or omitted by it or him in good faith, in such capacity.”

This implies that no court can help you if you have any issues with what the Council or its appointed officers does.

To summarise here, not only do we not know what exactly will be the procedure through which the Council uses its terribly vast discretionary powers and whether these procedures will be reasonable for the public, but we may also not know of any checks and balances the Council decides should be in place because it is allowed to keep things secret.

Unless of course the Council decides in its wisdom that the public should know. What if it decides that the public shouldn’t know in the interest of safeguarding national security?

So how?

These general concerns from the current form of the Bill raises a grave question. Do we even need this Council?

The thing is, we already have people looking after our national security, even if we overlook the fact that there is an existing National Security Council (although without powers as great as this Bill intends to confer).

First, we have the Ministry of Home Affairs, under which we have our Royal Malaysian Police Force which takes care of internal security ― bear in mind the police also have its own intelligence unit to sniff out potential threats. The ministry even has a unit dedicated to combat terrorism financing.

The ministry’s own corporate objectives, available on its website, even explicitly states that it seeks to “ensure the continuous maintenance and preservation of national security and public order through strict enforcement of the laws and efficient implementation of policies for programmes that are based on the core services of the Ministry of Home Affairs.”

And then we also have the armed forces, which come under the Ministry of Defence. According to the ministry’s website, it seeks to manage national defence efficiently and effectively.

So we already have a large portion of the public service corps dedicated to preserving national security.

Should this Bill be passed into law, it may effectively lead to the rise of a second and potentially redundant layer of bureaucracy because Clause 15 empowers the Council to appoint an unlimited number of officers to carry out the Bill’s provisions.

And it goes without saying that all this means a lot of extra expense for the government ― Clause 14 requires the government to provide enough money annually for the Council to operate and at present it is not yet known how much extra financial expenditure is required, according to the Bill.

Furthermore, the Bill itself may prove to be undemocratic and detrimental to Parliamentary democracy because of the provisions that effectively excludes the executive branch wielding this power from the reach of the judiciary (see 5 above).

This immunity compromises the underlying idea of separation of powers among the three branches of government in a democratic setting, although it is hard to argue that this compromise isn’t already here.

This is before we even mention that the Bill’s provisions ultimately place a lot of discretionary powers onto the sitting prime minister where there is already a disproportionate amount of power concentrated today. In turn this raises a lot of concerns on potential abuses that may arise which we may be wise to simply avoid altogether.

The overarching conclusion here is that if this Bill is passed into law, it may compromise the overriding interests of the average Malaysian in having a system of checks and balances in government to prevent power abuses and further worsening of corruption.

And this is simply why it is a matter of urgent national and public interest that this Bill should be withdrawn immediately and not be passed into law.