Written by: Averroes
As of today in Parliament, the Malaysian government has presented amendments toward the National Security Council (NSC) which is not their first time. Initially the Act was passed in the Dewan Rakyat in December 2015 where the Prime Minister could decide what area is to be a security zone where security forces could search any person as well as inspect a vehicle or building without a warrant as under section 26, 27, 28, 29, 30. Though, the Act later actually came into force on 1st August of 2016. Though, the Preamble of the Act did not specify it was made pursuant to article 149, one may argue this to be unconstitutional.
This Act also provides the body to fabricate and create policies which was conferred onto them as of the Act (776). This act alongside with SOSMA, the Penal Code, POTA, POCA and among other laws exist to curb terrorist or violent activities that may affect the sovereignty and peace of our beloved country, Malaysia. National Security according to Malaysia is defined as a state of being free from any threat, whether internally or externally, to its core values).
As among the founding fathers of ASEAN, Malaysia fully upholds the ASEAN Charter for the non-proliferation of force and to maintain neutrality in our Southeast Asian atmosphere. Malaysia is a member of the ASEAN Regional Forum (ARF), ASEAN Defence Ministerial Meeting (ADMM) and the Five-Power Defence Agreement (FDPA) to protect our national interests in terms of regional security and defences against all odds.
Many issues have burgeoned and this Act and its policies will cater to these following problems that had immensely pummeled Malaysia at an unprecedented rate, ever since the Communist Insurgency of Malaya, the 13th May riots and declarations of emergencies across Malaysia that have not even been revoked. (The following are examples of national security.
1) Interracial miscommunication
2) Undemocratic democratic practices
3) Illegal influx of immigrants and refugees.
4) Territorial disputes (such as the Natuna, Pedra Branca, Sipadan & Ligitan, Eastern Sabah and Limbang)
5) Extremism and Terrorism
6) Cyber Security
7) Natural Disasters
8) Crisis
9) Transnational Crime
10) Pandemics and Infectious Diseases (including the Covid-19 Outbreak);
The Prime Minister as under section 42(1) and (2) of the Act allows him to create regulations which includes control of movement, whether it is by persons, vehicles, vessels, aircraft, conveyance in any security area and to prescribe any prohibited action and activities during the period of the declaration made under section 18. The author speculates this to be the roadblocks, travelling abroad and inter-state travel previously imposed as it this is likely from regulations from the Prevention and Control of Infectious Diseases Act 1988 and the Police Act 1967,
Though, the author has not found any regulation was made under the Act due to the prohibited activities, the NSC did state a list of prohibited activities such as mass gatherings and how people interact to abide by the SOPs.
Section 42(3) then further states that the regulation allows penalties not exceeding RM100,000 or imprisonment not exceeding five years of both. Though,the author have not found any regulations or declarations of certain security areas by the NSC and cases where people were charged for it, the Prime Minister, Tan Sri Muhyiddin Yassin did say that he will preside over the council and discuss certain regulations and SOPs to be implemented. Though, what regulation it was, most likely it is the regulation made under the Prevention and Control of Infectious Diseases Act 1988 and Police Act 1967 as well.
The only visible action made by the NSC scrutinised by the author is where the NSC opined to make the use of the MySejahtera application mandatory in certain premises and entered meetings with the Attorney-General Chambers and the Ministry of Health on regulations which was not mentioned who actually made them.
11) Energy Security
12) Food Security
13) Incremental numbers of Nuclear Warheads and Arms Race programmes
From above, we can say Malaysia is in a geographical nest for incursions from terrorist groups, such as the Sulu pirates, Pattani succesionists and ISIS as well as among others throughout our history. Though, some parties consider them as the warriors of independence and liberators of the faith, violence and death should not be glorified and their activities are to be condemned.
Back to story, the proposed amendments exists to limit the Prime Minister's powers to declare areas or certain places to be security zones as it is unlimited as under section 18 of the NSCA 2016. This proposed amendment, known as the NSC Act (Amendments) 2020 was brought forth by the Minister in the Prime Minister's Department, Takiyuddin Hassan for the first reading, together with the second and third readings for the current session.
However, previous proposals were slated away from the preceding administration. If the proposal were to materialize, then it decrease the powers given to the Prime Minister and increase heavier punishments. It is also equally important to note that, the Prime Minister will still remain as the NSC Chairman as under section 6, but to designate an area as a security zone is the prerogative of the Yang Di-Pertuan Agong with the advice of the council as interpreted in the Act. This can be found as under section 4 and 5 of the NSCA 2016.
According to Tun Dr. Mahathir, supports the latter as of now, the power to declare an emergency has been stripped away from the Yang Di-Pertuan Agong as he has such discretion as under article 150 of the Federal Constitution.
Although, as in the case of Teh Cheng Poh v Public Prosecutor, Stephen Kalong Ningkan v Government of Malaysia and Abdul Ghani bin Ali @ Ahmad & Ors v Public Prosecutor, the Yang Di-Pertuan Agong has to follow the advice of the Prime Minister and the Collective Voice of the Cabinet as under article 40(1) and (1A) of the Federal Constitution. Therefore, it would still be meaningless if the Yang Di-Pertuan Agong may declare a zone as a security area as he would follow the advice of the Prime Minister eventually.
Other politicians including Datuk Seri Anwar Ibrahim had also brought this case to court to review its constitutionality.
We may view this as in the case of Datuk Seri Anwar Ibrahim v Government of Malaysia. The case was appealed to the Federal Court from the High Court as found under section 84 of the Court of Judicature Act 1976 which states that, "
The plaintiff filed an Originating Summons in the High Court to seek for the reliefs that these provisions were unconstitutional, null and void;
a) Section 12 of the Constitution (Amendment) Act 1983
b) Section 2 of the Constitution (Amendment) Act 1984
c) Section 8 of the Constitution (Amendment) Act 1994
More reliefs were sought which were also the following that were;
a) Articles 66(4) and (4A) of the Federal Constitution were unconstitutional,
b) The National Security Council Act 2016 is unconstitutional,
c) An injunction to restrain the National Security Council from instigating further action and implementation of the NSCA,
Overall, the issues that were posed in the case was firstly, whether the amending provisions were unconstituional, null and void which had no effect on the ground that it violated the basic structure of the Federal Constitution. Secondly, whether the NSCA was unconstitutional, null and void as its effect was an upshot from those unconstitutional amendments, not made pursuant to article 149 of the Federal Constitution and it infringed a persons' personal liberty of freedom of movement, vouchsafed as under article 9(2) of the Federal Constitution.
It was later held that, by the majority judgement by Nallini Pathmanathan FCJ, Azahar Mohamed CJM, Zawawi Salleh, Abang Iskandar Abang Hashim and Idruss FCJJ concurred on the matter that they refused to answer the issues and grant the reliefs in which it is remitted back to the High Court.
This is because, the issues or questions presented by the plaintiff was rendered to be an abstract or an academic one which there was no actual controversy surrounding the rights and interests of the parties. The court will not intervene unless there are radical effects and unyielding outcomes from the enforcement of a law and its alleged constitutional perversions.
The plaintiff did not show how the NSCA and the amendments had materially affected his rights and privileges in whatsoever way as he was only brought and imprisoned at the time of the action and that he brought it as a citizen of Malaysia. The court states that the NSCA did not target a certain group, nor did it even deprive the rights of the Plaintiff. It did not even cause prejudice to the plaintiff's personal life or any other person. Just because he is a Malaysian citizen, it does not mean that his rights had been violated.
To conclude, most of the regulations are made by under Prevention of Infectious Disease Act 1988 and the Police Act 1967. That includes the RM1,000 compound and imprisonment up to six months. The author highly supports further discussions to review over the NSCA as this law may have the similar effects of causing demise to certain individuals' fundamental rights and their political aspirations. To challenge the Act, one must actually have a locus standi and prove that his rights were adversely affected by the provisions and amendments of the constitution.
References,
https://www.pmo.gov.my/wp-content/uploads/2019/07/English-National_Security_Policy.pdf
https://www.freemalaysiatoday.com/category/nation/2020/08/18/govt-re-tables-amendments-to-nsc-act/
https://www.cljlaw.com/files/bills/pdf/2015/MY_FS_BIL_2015_38.pdf
https://www.pmo.gov.my/2020/03/perutusan-khas-yab-perdana-menteri-mengenai-covid-19-16-mac-2020/
https://www.pmo.gov.my/2020/05/lets-together-free-malaysia-from-covid-19-pm-muhyiddin/
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