Malaysian lawyers and human rights activists continue to condemn in the harshest terms a new Bill that has been pushed through parliament and will give sweeping powers to a security council headed by the Prime Minister, Najib Razak.
The government rushed the Bill through the lower house in early December, allowing minimal time for debate and no opportunity for civil society input, and, on Tuesday, senators voted in favour of the legislation without making any amendments.
After the vote in the Dewan Rakyat (lower house), a campaign against the Bill was launched under the banner #TakNakDiktator (No to dictatorship).
Opponents of the Bill say the campaign against it will continue. Campaigners will approach Malaysia’s Council of Rulers and the office of the head of state, the Yang di-Pertuan Agong. They are calling on the Agong to refuse to give his assent to the Bill and for the Council of Rulers to speak out against the legislation.
There will also be legal challenges to the proposed legislation, mainly focused on arguments that the Bill is unconstitutional.
Critics of the Bill say it places too much power in Najib’s hands and opens the way to further abuses of human rights in a country where there is already heavy suppression of dissent.
After Senate approval, legislation goes to the Agong for his consent. The Agong can refuse to give his assent, but Article 66(4A) of Malaysia’s federal constitution states that if there is no assent within thirty days of a Bill’s approval by the Senate, the government can then proceed with gazetting and implementation.
While constitutional amendments prevent the Agong from rejecting the Bill outright, lawyers say, “his refusal to assent would send a clear signal that the Bill is fundamentally flawed and should be done away with”.
It would be a huge rebuke if the Agong refused to assent to the Bill, the executive director of Lawyers for Liberty, Eric Paulsen, said.
Paulsen said civil rights groups would continue to engage with the Malaysian people to explain the real effects of the Bill.
Arrests, searches, and seizures without warrant
If the Bill becomes law, the security council will be empowered to designate security areas in which the authorities will be able to carry out arrests, searches, and seizures without a warrant and impose curfews.
The security forces will be able to take temporary possession of any land, any building or part of a building, or any movable property within a designated security area, and even destroy “certain unoccupied buildings”.
The director of operations will be able to evacuate people from a security area and resettle them in an area he determines.
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.
Yes vote no surprise
The human rights NGO Suara Rakyat Malaysia (Voice of the People, or SUARAM) says parliamentary representatives have failed to fulfil their oath to protect the rights of Malaysians.
“As the representatives of the peoples of Malaysia, they have clearly turned their back on the oath they have taken when they failed to safeguard the rights of Malaysians and wilfully participated in the destruction of these rights,” SUARAM’s executive director, Sevan Doraisamy, said.
The NSC Bill would render null and void the rights and liberties guaranteed to all Malaysians under the federal constitution and the Universal Declaration of Human Rights, Sevan added.
Even though several senators raised concerns that certain provisions in the Bill may be unconstitutional – and the Democratic Action Party (DAP) senator Chandra Mohan filed a motion for a special committee to look at improving the Bill – the yes vote came as no surprise. Both houses of parliament are dominated by the ruling Barisan Nasional coalition.
The dominant party in the coalition, the United Malays National Organisation (UMNO), has been in power for the past 58 years.
The DAP parliamentary leader Lim Kit Siang said Tuesday’s debate in the Dewan Negara (upper house) was a “parliamentary charade”.
The MP for Gelang Patah said that the senators’ actions proved his earlier suspicions that the upper house of parliament was “no more than just a rubber stamp”, just like the Dewan Rakyat.
Writing in the Malaysian Insider, Thulsi Manogaran, from Malaysia’s National Human Rights Society (HAKAM), said: “It would go down in history that the Senate came to life yesterday. Many senators called for amendments to specific sections recognising the dangers lurking in those loosely worded sections.
“Unfortunately, it would also go down in history that, despite all the robust arguments, the same senators easily said yes to the Bill when it came to voting. The same senators voted no to a motion to refer the bill to a select committee.”
The same senators who asserted that they refused to act as mere rubber stamps did just that, Manogaran wrote. “Democracy is not just about having a vote. It involves the strengthening of citizens’ possibility and capacity to participate in law- and policy-making.”
‘A legal black hole’
Also writing in the Malaysian Insider, the president of HAKAM, Ambiga Sreenevasan (pictured left), said it would have been in the interests of the nation to have had further discussion about the NSC Bill, “yet the government remained stubborn and did not even show a willingness to listen to reason”.
Ambiga wrote: “What we had was a government acting in haste, willing to overlook clear constitutional and legal impediments to the Bill, and taking the attitude that they know best.
“This should have triggered alarm bells. It was therefore irresponsible, to say the least, to deliver them this Bill, unaltered.”
The NSC Bill, Ambiga says, “gives absolute power to the prime minister to declare somewhere a security area. Once a “security area” is declared, she says, it becomes a legal black hole. “Anything can be done there by the security forces, including arrest, seizure of property and even killing, without any of the usual legal safeguards.”
Under the Bill, Ambiga says, the security council’s role is merely advisory, and the prime minister is not obliged to take their advice. “Furthermore, the prime minister, without reference to the council, may in his sole discretion extend the declaration ad infinitum.”
If one studies the Bill carefully, it appears to provide checks and balances, Ambiga says, “but, on closer scrutiny, we can see they are anything but that”.
Giving one person all powers over security with no checks and balances could compromise security rather than enhancing it, Ambiga says.
“The net effect is that the NSC Bill gives absolute power to the prime minister to decide if there is a security threat, including what may be covered in the nebulous wordings of ‘any other interest of Malaysia’.”
Opponents of the NSC Bill say it hands over to the prime minister powers that are currently held by the defence and home ministers. Also, while the word “emergency” is not specifically used in the new Bill, it effectively grants Najib similar powers to those now held by the Agong, who is the only person currently empowered, under the constitution, to declare a state of emergency.
Thulsi Manogaran asked of the senators who passed the Bill: “Did you know that more than 22,000 Malaysians have signed a petition against the passing of this Bill? Did it not occur to you to investigate in detail why they were signing the petition?”
Manogaran asked Senator Abdul Rahim: “How could the Senate pass a bill when you and several other senators have agreed and admitted that there are sections in the Bill that contravene the federal constitution.”
Senator Abdul Rahim had argued, Manogaran points out, that Clause 21(2) needed to be amended because of possible abuse. “You argued that the director of operations has too much power.”
Senator Rahim also argued that the word “temporary” in Clause 30 made the clause vague and more clarity was needed. “You also said that a fair mechanism needs to be in place to look into payment of compensations,” Manogaran wrote.
Manogaran also highlighted the concern of Senator Johari Mat that there was no definition of national security in the Bill. “He also said that the functions of the council under Clause 4 is wide and unlimited.”
Limitations needed to be inserted into the Bill to avoid misinterpretation in future, Manogaran wrote.
Senator Johari also asked why the powers granted to security personnel under Clause 34, enabling the “reasonable use of force”, were so subjective and wide.
Senator Norliza Abdul Rahim pointed out that there were no checks and balances in the section of Clause 18 that refers to the declaration of a security area.
Senator Lihan Jok from Sarawak proposed that Clause 21(2) be amended to read that the director of operations be allowed to do anything so long as it is consistent with the federal constitution, Manogaran wrote.
Many other senators had debated commendably on the Bill, pointing out flaws that needed to be amended, so why did they vote in favour, Manogaran asks.
Ambiga asked: “How are our members of parliament and senators proposing to explain the foisting of this abomination upon the country to the rakyat (people), and to the next generation?
“How will they explain their role in passing a Bill in a rush that undermines our parliamentary democracy and the rule of law and puts us all in peril at the behest of one person?”
‘Blatant power grab’
The government has promised that it will improve on any shortcomings in the controversial bill, but many observers consider the legislation to be a blatant power grab by Najib, who is accused of siphoning off huge amounts of public money for his own use and has faced repeated calls for his resignation.
“This bill, rushed through in the way that it was with no checks and balances, is nothing more than a grab for absolute power,” Ambiga said.
There are allegations of large-scale corruption within the government-owned 1Malaysia Development Berhad (1MDB), whose board of advisors Najib chairs.
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.
Former ambassador Dennis Ignatius (pictured left) said the NSC Bill 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.”
The new Bill, Ignatius says, is “nothing less than a prelude to dictatorship, the final step in the ‘Zimbabweization’ of Malaysia”.
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 government says the new Bill doesn’t contravene the federal constitution and has drawn a comparison between the Malaysian NSC Bill and the British National Security Council, chaired by Britain’s prime minister. However, opponents of the legislation point out that the British NSC is a Cabinet committee for the formulation of policy, not an enabling legislation with draconian powers like the NSC Bill.
‘Nail in the coffin of democracy’
After the vote in the lower house, the Sarawak state assemblyman for Ba’kelalan, Baru Bian (pictured left), said the passing of the NSC Bill was the final nail in the coffin of democracy in Malaysia.
Baru pointed to the risks for Sarawakians: “All Malaysians should be very worried about the wide and vague definition of ‘national security’. Sarawakians should be on high alert.”
Malaysia’s ruling regime, Baru says, has been used to a compliant and pliable Sarawak government under the previous administration, but things have changed under the new chief minister, Adenan Satem, who has called for twenty percent of oil royalties for Sarawak and for autonomy in education in the state, and has declared English to be an official language of Sarawak.
“Will the prime minister abuse this law to cower Sarawakians who are fighting for Sarawak’s rights?” Baru asked. “What if the prime minister decides that what we are asking for is a threat to ‘national security’?”
In a statement issued by its president, Steven Thiru, 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, said the NSC Bill was “a trapdoor to dictatorial rule, opening the real possibility of perpetually deepening rights abuses in Malaysia”.
He added: “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 Bill’s language is truly frightening.”
In a recent report, HRW said a “culture of fear” had already been created in the country, and there was “a disturbing trend of abuse of the legal process, including late-night arrests and unjustifiable remands, and a pattern of selective prosecution”.
The organisations spearheading the #TakNakDiktator campaign are Lawyers for Liberty; Amnesty Malaysia; SUARAM; HAKAM; the Coalition for Clean and Fair Elections (Bersih); the Centre to Combat Corruption and Cronyism, known as C4; and Institut Rakyat, the policy think-tank established by the Parti Keadilan Rakyat (People’s Justice Party or PKR).
They say the NSC Bill represents “a quantum leap towards a dictatorship and a military-police state”.
(The security council would also include the deputy prime minister.)