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Malaysia: National Security Council Act Comes into Force

(Aug. 4, 2016) On August 1, 2016, the National Security Council Act 2016 came into force in Malaysia.  (National Security Council Act 2016 (Act 776) (NSC Act), e-Federal Gazette website (official portal); National Security Act 2016 Appointment of Date of Coming into Operation, P.U. (B) 310, FEDERAL GOVERNMENT GAZETTE (July 14, 2016), e-Federal Gazette website.)  The Act, which was passed in December 2015, has been the subject of controversy due to the extent of the powers that it assigns to the new National Security Council, chaired by the Prime Minister, and to security forces.  (Sumisha Naidu, Malaysia’s Controversial National Security Council Act Kicks In, CHANNEL NEWS ASIA (Aug. 1, 2016).)

Provisions in the Act

The membership of the National Security Council consists of the Prime Minister (Chairman), Deputy Prime Minister (Deputy Chairman), the Minister responsible for defense, the Minister responsible for home affairs, the Minister responsible for communication and multimedia, the Chief Secretary to the Government, the Chief of the Defence Forces, and the Inspector General of Police.  (NSC Act, § 6.)  The Council has the power “to do all things necessary or expedient for or in connection with its functions,” notwithstanding any other written law, including controlling and coordinating government entities with respect to national security operations and issuing directives to such entities on matters concerning national security.  (Id. § 5.)

The Act gives the Prime Minister the power to declare an area to be a national security area, based on the advice of the Council.  Such an area is one where security is “seriously disturbed or threatened by a person, matter or thing which 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 of Malaysia, and requires immediate national response.”  (Id. § 18(1).)  The declarations remain in force for six months and may be renewed for six months at a time.  (Id.  18(3) & (4).)  Once a declaration is in place, the Council may issue executive orders, which could include the deployment of any security forces or relevant government entities to the area.  (Id. § 19.)  A Director of Operations would be appointed to be in charge of operations in a security area.  (Id. § 20.)

The Director of Operations has various powers in relation to a security area.  For example, he or she may exclude any person from the area for a specified period; evacuate any person or group from the area; impose a curfew; and direct the security forces to control the movement of any person or vehicle, vessel, or aircraft in and out of the security area.  (Id. §§ 22-24.)  Other powers relate to taking temporary possession of any land, building, or moveable property in the security area, including through the use of force if necessary, where this appears to be necessary or expedient in the interest of national security or for the accommodation of security forces.  (Id. § 30.)  The Director of Operations may also order the destruction of any unoccupied building or structure.  (Id. § 33.)  The Act includes provisions on compensation for property owners, which is to be determined by the Director General of National Security.  (Id. §§ 30(11), 31(2), 32, & 33(2)-(4).)

In addition, members of the security forces may, without warrant, arrest any person found or suspected of committing any offense under the laws that apply in the security area.  (Id. § 25.)  They may also, without warrant, stop and search any person or vehicle in the area, or enter and search any premises, if it is suspected that evidence of an offense is likely to be found.  (Id. § 26.)  The Act also contains provisions on the use of force and enables magistrates or coroners to dispense with the holding of an inquest upon the body of a member of the security forces or someone killed as a result of operations in the security area.  (Id. §§ 34 & 35.)

Regulations

In July 2016, the Prime Minister, Najib Razak, exercised his regulation-making powers under the NSC Act to promulgate two sets of regulations.  One concerns the actions and activities prohibited in a security area, which include demanding, receiving, or possessing any supplies “in circumstances which raise a reasonable presumption” that the person intends to act, or has acted, in a manner prejudicial to public security or maintenance of public order in a security area.  (National Security Council (Prohibited Actions and Activities Within Security Area) Regulations 2016, P.U. (A) 212, FEDERAL GOVERNMENT GAZETTE (July 29, 2016), e-Federal Gazette website.)

The second set of regulations relate to the powers to take temporary possession or property and destroy buildings or structures.  The regulations include provisions on the forms to be used to give notice to affected property owners, among other matters, and specify that compensation will be paid within 12 months of the relevant action being taken.  (National Security Council (Taking Temporary Possession (Land, Building or Moveable Property), Demand for Use of Resources and Destruction of Building or Structure) Regulations 2016, P.U. (A) 211, FEDERAL GOVERNMENT GAZETTE (July 29, 2016) e-Federal Gazette website.)

Reactions to the Act

Critics of the new legislation include human rights groups, international organizations, and opposition politicians.  Wan Saiful Wan Jan, head of the Institute for Democracy and Economic Affairs, a Malaysian think tank, said “[t]he law will definitely put fear in people planning to participate in street protests,” and ”[t]he public perception in terms of the timing of the draconian law is that Najib wants the law in order to stay in office.”  (Malaysia: Controversial National Security Act Launched, AL JAZEERA (Aug. 1, 2016).)  Najib, who has been Prime Minister since 2009 and whose party has been in power since 1957, is currently at the center of a corruption scandal related to the government-owned investment fund 1Malaysia Development Berhad, or 1MDB.  (Id.)

Amnesty International released a statement on the legislation, with the Deputy Director for South East Asia and the Pacific, Josef Benedict, saying, “[w]ith this new law, the government now has spurned checks and assumed potentially abusive powers,” and “[t]here is good reason to fear that the Act will be yet another tool in the hands of the government to crack down on peaceful protests under the guise of national security.”  (Press Release, Amnesty International, Malaysia: National Security Council Act Gives Authorities Unchecked and Abusive Powers (Aug. 1, 2016).)  Referring also to the Prevention of Terrorism Act 2015 and the Security Offences (Special Measures) Act 2012, Benedict accused the Prime Minister of “increasingly resorting to repressive new laws that are said to protect national security but in practice imperil human rights.”  (Id.; Prevention of Terrorism Act 2015 (Act 769), e-Federal Gazette website; Security Offences (Special Measures) Act 2012 (Act 747) (as of Aug. 1, 2015), Attorney General’s Chambers website.)

Human Rights Watch released a statement saying that the NSC Act is “a tool for repression that should be immediately repealed.”  (Press Release, Human Rights Watch, Malaysia: New Law Gives Government Sweeping Powers (Aug. 2, 2016).)  The statement also noted that the Act entered into force without the express assent of the head of the Council of Rulers, who is known as the Yang di-Pertuan Agong.  The Council of Rulers had reportedly called for some revisions to the Act.  (Id.)  Under the Federal Constitution, if the Yang di-Pertuan Agong does not expressly grant royal assent, that assent is deemed to have been given 30 days after the bill has been presented to him.  (Federal Constitution (as of Nov. 1, 2010), art. 66(4A), Attorney General’s Chambers website; Shaila Koshy, Controversial NSC Act is Now Law, THE STAR (June 9, 2016).)

Leaders of the opposition coalition, Pakatan Harapan, called for the legislation to be put on hold, saying that it blurs “the inviolable lines that separates [sic] the Executive, Legislative and Judiciary.”  In addition, they stated that “[t]he constitutional separation of military power from the office of the Prime Minister must be upheld in order for Malaysian democracy to be safeguarded for generations to come.”  (Freeze It, Says Pakatan Harapan as NSC Law Takes Effect Today, MALAYSIA DATELINE (Aug. 1, 2016).)  On August 2, 2016, it was reported that opposition leader Anwar Ibrahim, who is currently in prison, had filed an application in the High Court seeking an injunction to stop the implementation of the NSC Act and a ruling that article 66(4A) of the Constitution, related to deemed royal assent, is invalid.  (Melissa Goh, Malaysia’s Anwar Seeks to Nullify National Security Council Act, CHANNEL NEWS ASIA (Aug. 2, 2016); Hidir Reduan, Anwar Launches Lawsuit to Strike Down NSC Act, NEW STRAITS TIMES (Aug. 2, 2016).)