THE National Security Council Act 2016, also known as Act 776, came into force earlier this month. The distinctive feature of this new law is that while the draft legislation (the National Security Bill) was passed by both the Dewan Rakyat and Dewan Negara (on Dec 3 and Dec 22 last year, respectively), it did not get the royal assent of the Yang di-Pertuan Agong.
The NSC bill was tabled in the Dewan Rakyat on Dec 1 last year by Minister in the Prime Minister’s Department Datuk Seri Shahidan Kassim. It was passed by both Houses of Parliament within three weeks.
On Feb 17, Attorney-General (A-G) Tan Sri Mohamed Apandi Ali briefed the Council of Rulers. According to the Keeper of the Rulers’ Seal, the rulers wanted some provisions to be refined.
On Feb 18, Apandi told the media that some provisions would be scrutinised again. However, no action was taken to have the bill amended.
The day after the bill was tabled in the Dewan Rakyat, opposition member of parliament from Padang Serai, N. Surendran, said the new law was a matter of grave concern to all Malaysians.
Arguing that “there are no existing threats to our nation, whether internal or external, that even remotely justify these drastic new powers”, he said the new law was unnecessary.
He said we had enough laws to deal with serious threats to the nation, such as the Prevention of Terrorism Act (POTA) and Security Offences (Special Measures) Act (SOSMA).
Earlier, on Oct 20, Prime Minister Datuk Seri Najib Razak told the Dewan Rakyat that in light of “surrounding geopolitics”, there was a “real threat to Malaysia” and the government must quickly address such threats.
He said the new law would strengthen the National Security Council’s role by giving it the force of law, similar to what was done in the United States, Japan, Thailand, the Philippines and Britain.
He said the new National Security Policy would be completed by this year.
Thus, in practical terms, the law (Act 776) has preceded the policy. Some of us may prefer it the other way around — establish the policy first and then formulate the legislative framework.
With the law already in force, the scope and depth of the policy (still being worked out) cannot go beyond its limits — otherwise, the implementation of that policy may give rise to issues of ultra vires.
On July 27, Najib said Act 776 was necessary to protect Malaysians who faced a real threat from global terrorist groups.
Reminding Malaysians of the “first IS attack on us” (the grenade attack at the Movida Pub in Puchong, Selangor, on June 28), he said: “My government will never apologise for placing the safety and security of the Malaysian people first.”
The long title of Act 776 states that it is an act “to provide for the establishment of the National Security Council, the declaration of security areas, the special powers of the Security Forces in the security areas and other related matters”.
Spread across seven parts and containing 44 sections, the act establishes the Security Council (Part II, Sections 3 to 14), describes the duties and powers of the director- general of national security and government entities (Part III, Sections 15 to 17), the declaration of a security area, and the duties and powers of the Director of Operations (Part IV, sections 18 to 21), special powers of the Director of Operations and security forces deployed in a security area (Part V, Sections 22 to 36), general provisions (Part VI, Sections 37 to 42), and savings (Part VII, Sections 43 and 44).
Section 18 states that if the NSC believes that the security in any area in Malaysia “is seriously disturbed or threatened” by any person and likely to cause “serious harm” to the people, the territory, economy or infrastructure or any other interest, and advises the prime minister accordingly, the latter may if he considers it “necessary in the interest of national security” declare in writing the area as a security area. Such a declaration shall expire after six months, unless renewed (for periods of six months at a time). The declaration, which must be published in the Gazette and laid before Parliament, will come to an end if a resolution is passed by both houses of Parliament annulling it.
On June 23, a short video clip was uploaded on social media showing Islamic State terrorist Malaysian Mohd Rafi Udin (also known as Abu Aun al-Malysi) calling on Malaysian youths, who could not go to Mindanao (south Philippines), to launch their own “jihad” here by using whatever means at their disposal.
“You have a car, knock them down. You have a weapon or a knife, even a small one, stab them in the chest. Do not be afraid,” he said.
The impact of similar video clips on young impressionable minds to carry out “lone-wolf attacks” (especially on soft targets) should not be underestimated.
Rafi (who had not been seen since 2014 when he left the country to join IS fighters in Syria) recently appeared in an IS propaganda video (together with an Indonesian and Filipino). In that video clip, the three terrorists were seen beheading a Middle Eastern-looking prisoner.
According to Bukit Aman Special Branch Counterterrorism Division head Senior Assistant Commissioner Datuk Ayub Khan, “The ramifications of this video are huge. This could possibly encourage IS sympathisers in Malaysia to carry out beheadings here”.
It is against such threats (among others) that Act 776 has been passed. On July 28, Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi said it was no longer a question of “if” but “when” a terrorist attack in the country would take place.
“We have to be alert and we have to be together to make sure our country is safe.”
Former Central Intelligence Agency officer Michael Scheuer rightly said one of the great intellectual failures of the American intelligence community was “to assume if someone hasn’t attacked us, it is because he can’t or because we’ve defeated him”. Let us not make that mistake here.
The writer, Salleh Buang formerly served the Attorney-General’s Chambers before he left for private practice, the corporate sector and the academia. He can be reached via sallehbuang@hotmail.com