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Draconian Bill opens door for unprecedented abuse

December 4, 2015

Terrorists may be kept at bay but the personal freedoms and rights of Malaysians will be severely threatened under the National Security Council Bill.

COMMENT

national-securityby Malaysian Progressives United Kingdom

KUALA LUMPUR: The National Security Council (NSC) Bill was passed yesterday after a short two-day reading in Parliament. Let us see what it really means and how it has been framed to combat threats to national security and what other implications it has.

Firstly let us discuss anti-terrorism laws and what these are like in other countries.

Anti-terrorism laws are laws enacted to circumvent terrorism by allowing authorities to limit personal freedom for society’s collective security.

Terrorists operate in secrecy and this makes it hard to detect. Therefore, society has to give up some freedom to allow authorities to weed out terrorists. Although this compromise is broadly agreed with, the extent of scrutiny by authorities might impede on fundamental human rights, especially individual privacy.

Everyone knows there is a price to pay in privacy for collective security. The question is: how much?

Terrorist attacks like 9/11, the Boston Marathon bombing, and the recent Paris shootings, pushed anti-terrorism laws to the centre again.

Malaysian Anti-Terrorism Laws

In the past, we had the Internal Security Act 1960 (repealed in 2012) which enabled authorities (Home Minister) to detain a person for a period, if they were believed to be a threat to national security. Later, the Emergency Ordinance 1969 (repealed in 2013) upon the Yang Di-Pertuan Agong’s emergency declaration, gave police the full right to detain, arrest, question, and search individuals without a warrant.

The recent Security Offences (Special Measures) Act 2012 (Sosma) allows detention for up to 28 days and for tracking devices to be placed onto released suspects.

On the other hand, the Prevention of Terrorism Act 2015 (Pota), allows for detention, without warrant, up to a maximum of 60 days if a person is suspected of terrorist activities.

Anti-terrorism laws around the world

1. United States: Patriot Act.

This Act allows the President to seize the property of any foreigner suspected of war or attack on the US, surveillance by interception of telephone calls (most controversial) and tighter border control. It may also require banks to stop terrorist money-laundering.

2. United Kingdom: Anti-Crime, Terrorism and Security Act 2001

It allows for indefinite detention of foreign nationals suspected of terrorism without trial and freezing of assets.

The highest court in UK expressly disapproved of this legislation as it contravened human rights, with Lord Hoffmann famously quoted as saying, “The real threat to the life of the nation … comes not from terrorism but from laws such as these.”

3. Canada: Anti-Terrorism Act 2001

Allows for ‘secret’ trials, preemptive detention and expansive security and surveillance powers. Many sunset provisions expired, but were renewed in the Combating Terrorism Act 2012 after the Boston bombing incident.

It was amended to include crimes for leaving Canada to join terrorist groups, with increased maximum prison sentences.

National Security Council Bill 2015

The Bill was passed in Parliament on Thursday, December 3, 2015. Primarily intended to combat terrorism, a National Security Council (NSC) will be established and headed by the Prime Minister under the law. It encompasses broad powers to declare ‘security areas’ and arrest, detain and seize property without warrant.

Why are we concerned?

1. Wide powers under certain clauses lack transparency, accountability and respect for individual rights.

  • Clause 6: NSC consists of PM, DPM, Minister of Defence, Minister of Home Affairs, Minister of Communication and Multimedia, Chief Secretary to the Government, Chief of Defence Forces, and the Inspector-General of Police. All are appointed by the PM and report directly to the PM.
  • Clause 18 (1): PM has full discretion to decide where a ‘security area’ is.
  • Clause 18 (3) and (4): Initial declaration of a ‘security area’ lasts for six months but may be renewed by PM indefinitely.
  • Clause 22-30: security forces can arrest without warrant; stop and search; enter and search premises; take possession of any land, building or movable property.
  • Clause 37: All NSC’s affairs are done in absolute secrecy.
  • Clause 38: No action or lawsuit can be brought against the NSC.
  • The term “national security” was not clearly defined. It can be ‘economic stability’, ‘national unity’, or ‘political stability.’

2. Hasty passage of the Bill

The Bill was presented to Parliament and passed within two days. Members of Parliament, lawyers and human rights activists have raised concerns over the lack of consultation. One MP called it the ‘death to democracy in Malaysia.’

3. Constitutional validity: Overstepping the Yang Di-Pertuan Agong (YDPA)’s powers?

The Bill effectively provides the PM emergency powers without the need to declare a state of emergency under Article 150 of the Federal Constitution, which was a power previously exclusive to the YDPA. The extensive powers also mimic those under the Emergency Ordinances, a law that was repealed by the parliament in 2011.

Conclusion

The potential abuse of the law is unsettling. Never have we had a law that places wider and unfettered powers in the hands of a few executive elites. Since there are already enough laws to combat terrorism in Malaysia, a new law that further encroaches on individual liberty is grossly alarming.

The hurried manner in which it was passed only fuels speculation on the real basis behind it. We strongly urge the government to withdraw the National Security Bill 2015.

Malaysian Progressives United Kingdom are a group of concerned Malaysians who keep abreast of developments in the country and speak out against injustice.

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