National security and security areas in Malaysia: a realm of endless possibilities

By Michelle Yesudas

The National Security Council Bill 2015 was bulldozed through the Dewan Rakyat (Malaysia’s House of Representatives) on Dec 3, 2015. If passed through the Senate and assented by the Yang di-Pertuan Agong, the law “gives excessive powers to the Prime Minister and endangers civil liberties”, according to Parti Keadilan Rakyat MP N. Surendran. The President of the Malaysian Bar Council Steven Thiru notes that it may place Malaysia at the cusp of the “abyss of authoritarian rule”.

The Bill, which was unveiled by Minister in the Prime Minister’s Department Shahidan Kassim barely a couple of days before it was tabled and voted on at the Dewan Rakyat, could possibly allow the National Security Council (the NSC) to exercise similar powers of the Yang di-Pertuan Agong under Article 150 of the Federal Constitution, including emergency-like powers of arrest, detention, search and seizure, the use of violence and deadly force, order of curfew and control of movement.

This Bill gains its legitimacy from the notion it is for national security reasons although these reasons are left as a vague.

This then begs the question – security for whom? Is the term “national security” really people-centric, taking into account the safety of the people first, ensuring their well-being at the expense of their own personal freedoms that they have given up willingly through a democratic process?

Or does the term national security actually mean a safeguard for the ruling party to accumulate political power and to protect itself from political adversaries inside and outside its territory?

It is alarming that the term “national security” is not defined in the Bill, leaving it subject to interpretation. When Shahidan Kassim was asked of the national security threats and to substantiate his claims of these threats, he took the stance that the act of revealing the details of these security threats would then undermine national security.

It would appear that the first step to protecting national security is to ensure as little information of these threats are revealed to the public as possible. We must also be mindful that any attempt to criticise these efforts of maintaining national security or the act of bringing shortcomings of these initiatives to light may also make one a “security threat”.

Although the government defends the Bill by stating that any decisions made by the NSC would involve the entire council – including the Prime Minister and his deputy as Chairman and Deputy Chairman respectively, the Ministers of Defence, Home Affairs and Communications and Multimedia, the Chief Secrety to the Government, Chief of the Defence Forces and the Inspector General of Police – it must be noted that those in these roles are traditionally handpicked by, and answerable to, the Prime Minister.

The NSC does not appear to come with an accountability mechanism, both within and outside of the council.

The Bill states in plain language that the Prime Minister has the power to declare any area as a security area and there is no limit, recourse or avenue to review these decisions once they are made. He – the sitting Prime Minister – merely has to meet the vague, ill-defined standards set in the Bill, which will also allow him to extend the period of declaration at his own discretion.

When we look at the provisions that allow the Prime Minister to arrest any persons without a warrant in the event they “committed any offence under written laws” in the security area, among others, the question “national security for whom” keeps cropping up. In addition, security forces will also have stop, seizure and search powers, and will be able to take possession of any land, building or movable properly in the said security area.

Malaysia’s culture of impunity will be further strengthened by the cloak of immunity thrown on the NSC that protects its committees, personnel and security forces from any form of legal proceedings and does away with the requirement of holding an inquest upon a death of a person in the security area.

Our existing Criminal Procedure Code requires deaths in the custody of police, mental hospital or prison to be disclosed to the nearest Magistrate immediately and if the death is in the custody of the police, the Magistrate must hold an inquiry into the cause of death.

The stories of deaths many has questioned over the past few years – the Kugans, Aminulrasyids, and Teoh Beng Hocks – might no longer be stories of resistance and state accountability, but rather, stories that are common, untold and the norm, and they will disappear from the public eye.

This Bill excludes citizens from the framework, strips its people of their constitutional rights and have declared open season on its own people, shutting off all areas of potential recourse, shutting off the courts and public accountability mechanisms.

One would have to be so bold to ask the question that perhaps, the wellbeing of the people may not be the priority of our national security agenda.
It is shameful that this piece of legislation could become the trump card the government can play at any time, invoking national security at the highest point of its insecurity.

Once this law comes into force, all political power will be vested within the Prime Minister and the quality of our lives and freedoms will be completely dependent on the degree danger we pose to his ability to exercise political power.

It is also frightening that this Bill is being rushed through Parliament, with little explanation and little engagement with stakeholders when it is a Bill that will change the nation.

How do we survive this? The future is bleak, with the newly amended Sedition Act bobbing along the horizon, along with the TPPA negotiated in secret.

However, the more quiet and fearful we become, the faster our democratic space will disintegrate. We must not be afraid.

Michelle Yesudas is the Legal/Campaign Coordinator at Lawyers for Liberty.