Saturday, 5 December 2015

We can still stop the NSC Bill - Dr. Aziz Bari

'Power tends to corrupt, and absolute power corrupts absolutely'
Lord Acton

Calling the National Security Council (NSC) bill an affront to the Constitution, law expert Dr Abdul Aziz Bari said that Malaysians could still stop the council from becoming a reality even though the bill was passed in the Dewan Rakyat on Thursday. 

The Universiti Selangor (Unisel) lecturer said there were three lines of defence that opponents to the bill can count on to prevent Malaysia from falling into a dictatorship and becoming a police state. 

"The first line of defence is the Senate. It may delay the bill for 12 months during which debates and activities to highlight the controversial provisions of the bill may be organised to enlighten the public," Aziz told The Malaysian Insider last night. 

However, he added that under Article 68 of the Constitution, the Dewan Negara had no power to throw away the bill, which he said gave extensive powers to the prime minister through the NSC, and thus, would impact the Constitution. 

He said that once the bill was passed at the upper house, the (second line) next line of defence would be the Yang di-Pertuan Agong, as it would be presented to him for his assent under Article 66(5) of the Constitution. 

While Article 66(4A) of the Federal Constitution states that a bill will become law after 30 days, even if the Agong does not assent to it, Aziz said this was arguable. "The Agong may refuse to sign the bill and this will provoke a crisis. 

This is because, in 1994 Tun Dr Mahathir Mohamad amended the Constitution allowing Parliament to bypass the Agong. "But the problem with that 1994 amendment was that it was not consented to by the Conference of Rulers as required by the Constitution.

"Hence, there are doubts over the legality of the amendment imposed by Dr Mahathir. But it is good to have a crisis so that we can re-open the debate as to what was done by Dr Mahathir during his rule." 

Aziz said that should the Agong decline to intervene, then Malaysians (third line) would have to rely on the Federal Court to declare the bill illegal. He warned that if all these methods failed and the bill became law, 

Datuk Seri Najib Razak may create his own "cocoon" with the council if he felt he was in danger of losing his power. 

According to the NSC bill, the council will consist of the prime minister, deputy prime minister, home minister, defence minister, communications and multimedia minister, chief of defence, chief secretary to the government, and inspector-general of police. 

"The ostracised prime minister may even sideline the Cabinet, which under the present constitutional system underpins the framework of responsible government; namely the accountability of Cabinet as the nucleus of government to Parliament," said Aziz. 

The bill was tabled in the Dewan Rakyat on Tuesday and passed just two days later in the Dewan Rakyat by a voice vote. 

The bill gives powers to the council headed by Najib to arrest anyone without a warrant once an area is declared a security area. 

The NSC bill gives the prime minister the power to impose "emergency-like" conditions, without the same safeguards as previously available in the Constitution. Under Article 150 of the Federal Constitution, the Agong must be satisfied that there is a need for a declaration of emergency. 

The NSC Bill does not require the Agong’s consent for an area to be declared a security area. Opposition parties, activists, the Malaysian Bar and even an international group, Human Rights Watch (HRW), have expressed their criticism of the bill, which some see as a tool for repression that could threaten human rights and democratic rule. – December 5, 2015. 

I am very strongly against the NSC Bill exactly for these reasons as LKS wrote in his blog titled:


The National Security Council Bill is the most monstrous piece of legislation that I have seen since my election to Parliament 46 years ago in 1969, for it would confer the Prime Minister with dictatorial powers, and in areas which are declared as “security areas”, the Prime Minister’s National Security Council would be able to do whatever it deems necessary (which is completely unheard-of in modern democratic governance) but also confers immunity for whatever violations and atrocities against human rights, even involving deaths, committed under the auspices of the National Security Council.

This is because the National Security Council Bill specifically provides that there would be no accountability whatsoever (everything will be protected under the Official Secrets Act) and there is even no need for post mortems in cases of mysterious deaths in security areas.

The most objectionable part of the National Security Council bill is that it would vest the Prime Minister with dictatorial powers at the expense of the constitutional provisions about the prerogative of the Yang di Pertuan Agong to proclaim an emergency, the powers of the Cabinet which must decide whether the Prime Minister should advise the Yang di Pertuan Agong to declare an emergency, and the autonomy rights of Sarawak and Sabah.

In fact, the National Security Council Bill confers on the Prime Minister the powers and prerogative to evade the constitutional position of the Yang di Pertuan Agong as the Prime Minister would be conferred the statutory authority to exercise emergency powers without a proclamation of emergency by the Yang di Pertuan Agong.

The National Security Council Bill is a preposterous and monstrous law for the definition of “national security” is so open-ended that it covers virtually all issues under the sun, and not confined to strictly security issues like the threats from Islamic State (IS) or intrusion from Sulu terrorists from southern Philippines.

“National security” under the National Security Council Bill includes “sovereignty, territorial integrity, defence, socio-political stability, economic stability, strategic resources, national unity and other interests relating to national security”.

Read the full blog post here.

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