The Malaysian government has just pushed through an extraordinarily draconian National Security Council Bill, which gives sweeping powers to a security council headed by the Prime Minister, Najib Razak.
The council will have the authority to designate security areas in which the authorities will be able to carry out arrests, searches, and seizures without a warrant. The bill also gives widespread immunity to the security forces.
The legislation was passed at policy stage last night (Thursday) when 107 MPs voted in favour and 74 voted against. It then went through committee stage. The Bill still has to be accepted by the Senate to become law, but this is considered now to be just a formality. It would then be presented to Malaysia’s head of state, the Yang di-Pertuan Agong, for his assent.
Lawyers say that the legislation is unconstitutional and in breach of fundamental freedoms contained in Malaysia’s federal constitution. There are sure to be challenges in court.
The Geneva-based International Commission of Jurists (ICJ) condemned the passage of the Bill and called on the Malaysian government to reform its lawmaking processes immediately.
There was a groundswell of outrage as soon as the Bill was tabled in parliament on Tuesday. It was condemned by a wide range of civil society organisations including Human Rights Watch, Malaysia’s National Human Rights Society, the Malaysian Bar, and Lawyers for Liberty. They all called on the government to withdraw the proposed Bill immediately.
Malaysia’s National Human Rights Society (HAKAM) called on all MPs to oppose the Bill.
In a statement issued by its president, Steven Thiru (pictured left), the Malaysian Bar urged the government to “step back from the abyss of authoritarian rule by respecting the rule of law and our federal constitution”. The new Bill, the Bar said, was a “lurch towards an authoritarian government”.
The deputy director of the Asia Division of Human Rights Watch (HRW), Phil Robertson, used stronger language. “Now we know what the path to Malaysian dictatorship looks like,” he said. “The people of Malaysia, and international friends of Malaysia committed to human rights, should urgently demand this Bill be withdrawn by the government, or rejected by the parliament.”
Lawyers for Liberty said: “Far from establishing matters concerning national security, the Bill is more akin to establishing a dictatorship rule.”
Former ambassador Dennis Ignatius (pictured left) was equally outraged after the Bill’s first reading. In commentary on his blog, he said the Bill was “nothing less than a prelude to dictatorship, the final step in the ‘Zimbabweization’ of Malaysia”.
He continued: “The Bill creates, in effect, a police state wherein the government and its agents are empowered, in the name of national security, to do anything they want with total impunity and without regard to constitutional constraints and obligations.”
The security council will be able to designate any location in the country a “security area” so as to protect what is described as “any interest of Malaysia”. This designation can last for six months.
Once such a declaration is made, the security forces will be able to limit freedom of movement, conduct searches without warrant for evidence of violation of “any written law”, and arrest individuals without a warrant on suspicion of committing “any offence under any written law”.
The security declaration can be renewed an infinite number of times and there are no limits as to the size of the area in question. A large part or even the whole of Malaysia could be declared a security area.
Impunity for security forces, and ‘a risk of abuse’
Both HRW and Lawyers for Liberty expressed concern about the impunity granted to the security forces under the new legislation, which protects them from any legal proceedings for actions taken “in good faith” and impose a sweeping obligation of secrecy on all those involved with the NSC.
“No-one can be held accountable and the NSC, its committees, personnel, and security forces have legal immunity from any criminal and civil proceedings, even to the extent of dispensing with holding of an inquest upon death of a person,” Lawyers for Liberty said.
The NSC is to be headed by the prime minister and composed of the deputy prime minister, the ministers of defence, home affairs, and communication and multimedia, the chief secretary to the government, the commander of the Armed Forces, and the inspector-general of police.
Speaking yesterday, before the legislation was passed, Phil Roberston said the proposed Bill was quite clearly a tool for repression. “While touted as a law to protect national security, the law provides expansive powers that could fundamentally threaten human rights and democratic rule.”
Lawyers for Liberty said the Bill was “clearly unconstitutional, a grave abuse of power, and absolutely unnecessary”, especially since Malaysia was living in peace time “with no threats of subversion, insurrection or civil unrest”.
The lawyers described the new legislation as “extremely vague, arbitrary and wide” and “a sure-fire recipe for abuse of power and human rights”.
The proposed Bill was only revealed to members of parliament on Tuesday, the lawyers said. “Unfortunately, like many other government bills, it leaves very little room and time for meaningful debates.”
It was shocking, Lawyers for Liberty said, that such a very serious Bill, with wide ranging repercussions, was prepared “surreptitiously, without any basis, publicity or consultation with opposition members of parliament, civil society and members of the public”.
Phil Robertson said that, “given the incredible range of broad and abusive laws already being used by Prime Minister Najib and his government to arrest and harass government critics”, the breadth of the new Bill’s language was truly frightening.
“The law is far broader than can be justified by any real threat to Malaysia’s national security, and creates a real risk of abuse in the hands of Prime Minister Najib and his embattled government.”
Ignatius said the proposed legislation was more about “consolidating power, silencing dissent, stifling the opposition and intimidating the people” than anything else.
“It is a power grab plain and simple, the end game in UMNO’s strategy of acquiring absolute and total power. It will crush what’s left of our democracy. It will institutionalise kleptocracy. It will bring us closer to the day when we will once again be ruled by a national operations council. It will make peaceful change impossible.”
UNMO (the United Malays National Organisation), which has been in power for the past 58 years, is the dominant party in the ruling Barisan Nasional (BN) coalition.
Ignatius described the new legislation as “an act of desperation by a government fearful of its own people and terrified of change”.
‘Legislation by ambush’
In his analysis of the legislation, opposition MP and lawyer N. Surendran (pictured left) pointed to the extensive powers that would lie in the hands of the director of operations appointed by the council. These powers would include evacuating the public from their homes and resettling them, imposing curfews, and wide powers of arrest, search and seizure that include entering and searching people’s homes.
Surendran said the passage of the Bill through parliament was “legislation by ambush”, and he questioned the repeated need for Bills to be rushed through the House.
The new legisation leads to an excessive concentration of powers in the hands of the prime minister, Surendran says. “It is unacceptable under our democratic system that the prime minister is given such powers.”
Surendran says the new legislation infringes the sacrosanct right to property and may be in breach of Article 13 of the federal constitution. The dispensing with holding an inquest could encourage abuse of power by the security forces, including custodial abuse, and is in clear breach of Article 5 of the constitution, he says.
The ICJ said it deplored the manner in which the government steamrollered the Bill to passage. “The same rushed manoeuvres occurred when the Prevention of Terrorism Act and amendments of the Sedition Act were hastily passed in parliament earlier this year,” said the ICJ’s senior international legal adviser for Southeast Asia, Emerlynne Gil.
In its statement, the Malaysian Bar said: “We would remind the government that it has more than enough laws giving it more than enough draconian powers to address security concerns.
“The proposed legislation extends those draconian powers even further, allowing the government to restrict movement, abandon civil liberties, and administer areas centrally and directly, bypassing state and local government. It avoids public scrutiny and proper accountability, and promotes unfettered discretion and an environment of impunity.”
The NSC’s scope of authority is broad and unchecked, the Bar states, as “national security” is not defined in the new legislation. “This provision is therefore open to abuse by the NSC, as the NSC would be able to treat almost any matter as one of national security”.
Ignatius described the new legislation as “so patently and blatantly undemocratic in its intent that it staggers the imagination that any government in this day and age would even contemplate it”.
He said the Bill was “a new low from a government that has consistently and increasingly disregarded the spirit of our constitution and trampled upon the rights of the people with callousness and impunity in order to cling to power”.
Steven Thiru said in his statement: “The NSC will have the power to ‘control’ and ‘issue directives’ to ‘any ministry, department, office, agency, authority, commission, committee, board or council of the Federal Government, or of any of the State Governments, established under any written law or otherwise’ on operations or matters concerning national security.”
Thus, Thiru says, a whole host of instrumentalities of the federal government or state governments – which could include Bank Negara Malaysia, the Securities Commission and the Malaysian Anti-Corruption Commission – would be made subservient to the NSC. “The independence of these entities would be restrained and compromised. The authority of state governments can be overridden.”
Article 66(4A) of Malaysia’s amended federal constitution states that a Bill becomes law thirty days after it is passed in parliament, even if the Agong does not assent to it, but experts say there are doubts about the legality of the amendment imposed by the then prime minister, Mahathir Mohamad, as it was not consented to by the Conference of Rulers as required by the constitution. Lawyers say, therefore, that it could be for the federal court to decide the fate of the new Bill.
Creating a ‘culture of fear’
Earlier this year, Malaysia’s government passed the 2015 Prevention of Terrorism Act, which permits indefinite detention without trial or the hope of judicial review.
In November 2014, Najib reneged on his promise to repeal the Sedition Act and announced that the law would instead “be strengthened and made more effective”.
In April 2015, the government pushed through amendments providing for harsher penalties and further restrictions on speech, particularly on social media.
In October, Human Rights Watch released a report entitled “Creating a Culture of Fear: The Criminalisation of Peaceful Expression in Malaysia”, which highlights what HRW calls “a disturbing trend of abuse of the legal process, including late-night arrests and unjustifiable remands, and a pattern of selective prosecution”.
The Malaysian government had gone on a binge of prosecutions of critics and was using broad and vaguely worded laws to criminalise peaceful expression, HRW said.
HRW called on the Malaysian government to drop all pending charges and investigations against those who are being prosecuted “for the exercise of their freedom of speech or their right to participate in peaceful assemblies”, halt the abuse of the legal process to harass and detain critics, and amend or repeal relevant laws to bring them into line with international human rights standards.
The anti-opposition crackdown has intensified in the past year in the face of rising public discontent over issues ranging from the imposition of a new Goods and Services Tax (GST) to the government’s response to a corruption scandal involving the government-owned 1Malaysia Development Berhad (1MDB). The 1MDB board of advisors is chaired by Najib, who is accused of siphoning off huge amounts of public money for his own use.
Anti-corruption investigators say that, in 2013, Najib received 2.6 billion ringgit (about 700 million US$) in a personal bank account, but that the money was deposited by an unnamed donor in the Middle East, and did not come from 1MDB. Najib has denied there was any wrongdoing, or personal gain, in his receipt of the money.
In February, the federal court upheld a ruling by the Court of Appeal last year, which found the de-facto leader of the opposition Parti Keadilan Rakyat (PKR, or People’s Justice Party) Anwar Ibrahim guilty of sodomising his former aide Saiful Bukhari Azlan in 2008. Anwar was sent to jail for five years.
Anwar (pictured left) says the case against him was fabricated by his political enemies and the verdict has been strongly criticised both locally and internationally.
At least 80,000 people turned out onto the streets of the Malaysian capital Kuala Lumpur on August 29 for for the first stage of a 34-hour Bersih 4 protest, which went off peacefully. The rally organisers said the protest attracted 200,000 people at its peak during the day.
The demonstrators called for Najib’s resignation. They said parliamentary democracy had to be strengthened and demanded that the right to dissent be preserved.
Najib (pictured left) said in October that further legislation was needed to protect Malaysia from terrorist threats. He said a new Act was necessary to create the NSC legislatively, as was done in several other countries. NSC “transformation measures”, he said, would strengthen the council and enable better coordination of national security policy.
The legislation that has just been passed by the Dewan Rakyat (the lower house of parliament) goes much, much further than observers envisaged.
(The security council would also include the deputy prime minister.)
Article updated on 5/12/2015.