{mosimage}This item has been updated since initial publication.
The Malaysian Bar is appalled that the National Security Council Act 2016 (“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.