Part 2 | The NSC Bill: Interview With Syahredzan Johan

The NSC Bill (National Security Council Bill): Is It A Threat Or A Safeguard For A Better Malaysia?

EL: Section 38 of the NSC gives you full protection from any law which can be interpreted as receiving immunity [1] and no action can be taken as long as it is done in good faith. What is meant by “good faith” in this context?

SJ: Personally, I feel that people didn’t read this the way that was intended because if you look this, this is actually replicated in other laws. For example, Suruhanjaya Hak Asasi Manusia (SUHAKAM) Act, Legal Profession Act (LPA) and etc. Basically if a member of the NSC, SUHAKAM or the Bar Council does something in good faith, then he or she cannot be sued in his personal capacity. I do agree that by reading this, it can also be interpreted to mean immunity from being challenged in regards to any decisions in the security area. The fear is that, an interpretation might be made with regards to this particular section ̶ in which it operates like an ouster clause.For instance, in the ISA, there is an ouster clause which says that the courts cannot question the decision of the Home Minister (Ministry of Home Affairs) about ISA detentions. The fear is that this would be read similar to an ouster clause which may mean that the courts will say that whatever that the NSC members do, whatever security forces do within the security area, pursuant to this act, cannot be questioned in court.

If that happens, it is really something that will give them immunity. Perhaps, it might actually bring us to the path of dictatorship. I think there is a certain degree of hyperbole as well to say that Malaysia is going to turn into a dictatorship. I would rather prefer to say that it would definitely change the character or the framework of the constitution. It would allow for a situation where Malaysia is not controlled by the government of Malaysia but by certain individuals under the guise of national security. It is difficult to prove whatever the government does is in the good faith or bad faith because it is an evidential issue.

EL: Section 26-28 of the NSC discusses the power of any enforcement officer who can search without any warrants. Do you think that there are check and balance mechanisms?

SJ: Under the Criminal Procedure Code, there are provisions for this. The main question is, why do we need to replicate this in this particular act? For example, if you are suspected of committing a seizable offence, then you can be arrested without any warrant.[2] The issue is whether there are enough safeguards. The problem is when you look at this and then looks at it how the other things work; it might mean that they have all this power that actually allows them, for example, to use reasonable and necessary force.  If you read that with other provisions, and it is read in the manner such as that we fear the most, it may mean that they can make decisions with impunity; without any sufficient safeguards, that they are doing this in proper manner. The other fear is because the bill deals with security threats, none of us would ever want to challenge something like this.  The public interest when it involves national security, may override other interests. We have seen that happen a lot in real life. The courts might say, there is a public interest in this matter but it is outweighed by the fact that this is a security threat.

From my point of view, it opens doors to actions without accountability, situations where the fundamental liberties are affected; it opens doors to a takeover of the state government. These concerns can be found directly within the four walls of the bill itself.

EL: From your point of view, why do we need the NSC?

SJ: To be honest, I don’t know. A lot of people used the Paris attack as an example. It has actually been debated in Parliament – if something like the Paris attacks actually happens in Malaysia, the government claims that we might not be able to deal with it which is not true. Back in 2013, the intrusion by followers of Jamalul Tiram (the Sultan Sulu) in Lahad Datu in eastern Sabah occurred; after that episode the whole part of Sabah was put under the security command that known as Eastern Sabah Security Command (ESSCOM). Within that security area, security was tightened. Enforcement officers stopped and searched people and they imposed curfews. They did all that without having a specific legislation such as the NSC. It clearly shows that they have the power to do it, and they can deal with a security threat akin to Paris and you don’t need this particular legislation.

Another example would be, when we do encounter a situation where there is an actual emergency like the communist insurgency or any foreign forces that come to invade us. These situations fall under Article 150[3] where it gives power to the Yang DiPertuan Agong  to declare an emergency if the Yang DiPertuan Agong is satisfied that the emergency is exists and the security, economy, life and the public order of the country is threatened. Hence, it is not necessary to implement the NSC based on our capability to deal with such emergencies like the Jamalul Tiram situation.

The question has been raised repeatedly by the Bar Council and in Parliament. It’s still being raised by civil society and the answer given by the government has not been satisfactory. No one saw this going to happen. There was no indication that they were going to table it.

EL: You mentioned Article 150 and the power of the Yang DiPertuan Agong. The NSC bill actually disregards the power of the Yang DiPertuan Agong  and gives  full power to the Prime Minister to declare an emergency. Can you elaborate on this?

SJ: There is a reason why the framers of our constitution gave that power to the Yang Dipertuan Agong instead of just giving it to the Prime Minister. There is an in-built system of check and balance. Once they declare an emergency, they can make any laws without tabling at Parliament. They can make an emergency ordinance. These laws can be contrary to certain provisions under Part 2 of the Constitution. In order to declare an emergency, there are requirements must be met under Article 150 (1). In order to do that, the government needs to satisfy the Yang DiPertuan Agong that there is an emergency. Although Yang DiPertuan Agong has to act upon the advice of the Cabinet, He can inquire about the emergency. He might feel that he may want to consult with his fellow rulers on these matters although there is no requirement in the constitution.

These are the in-built checks and balance because the framers of the constitution knew that if you give the power to the Prime Minister, then there is a possibility of him abusing it because he himself is a politician — it might be advantageous to him to misuse this power.

With this, it would appear that the emergency powers that should be reserved only for emergencies, are now given to the Prime Minister without them having to going through the Yang DiPertuan Agong . It actually bypasses the Yang DiPertuan Agong  and gives the Prime Minister the emergency powers when they may not satisfy the constitutional requirement.

EL: What kind of safeguards do you think the bill requires?

SJ: First of all, we can’t give this exhaustive power to declare a security area to the Prime Minister. That is the first problem. You need to ensure that the power is given to someone who is more neutral. That’s why the constitution gives it to the Yang DiPertuan Agong.  The other safeguard is of course, the powers given to all enforcement officers to arrest a person. To make an arrest, the power should be addressed to a higher ranking officer and there should be a need for authorization to make an arrest.

After all, for all the reasons stated above, I do believe that there is nothing in this bill that I can agree with to be completely honest. It is a handy law to have. They might not necessarily use it all the time. However, it is a good law to have just in case. However, as citizens, we should question the need for this bill and not be easily satisfied with the explanation given by the government.

[1] Section38 of NSC Bill 2015
[2] Section 23 of Criminal Procedure Code
[3] See Federal Constitution

Read Part 1 of this exclusive interview here!

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