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Saturday, December 5, 2015

National Security Council Bill

Social media in Malaysia was suddenly abuzz with the phrase words "National Security Council Bill". Out of nowhere, it was mentioned that National Security Council Bill would be tabled, and it was passed without much fight from the Opposition party.

The Opposition were crying murder, claiming the bill had been pushed through without them having much chance to go through reading it.

Frankly, I'm not sure how true is their claim. Too much politicking had been seen these lately, and I don't want to fall into another political gimmick (I had fallen to their tricks a few times too, accepting their version of the story till I got to understand them better).

So instead of relying on the words from any both sides, I decided to look into the Bill itself.  For the purpose of comparison, I will also compare the bill against Emergency Ordinance 1969 which had since been repealed and also against the Federal Constitution.




What do we need the Bill?
Before we go into the details of the Bill, it is best that we understand the purpose of having the Bill in the first place.

Lahad Datu Intrusion
During the Lahad Datu intrusion, much of the defence followers community debated on the issue who was supposed to be responsible to handle the intruders.  Was it a police issue?  Or was it a military issue?  The rules set back then was the affair should be handled by primarily by the police force and supported by the Armed Forces.

When the first two officers were killed in battle against the dastard terrorists, the blame game began, blaming the Government for endangering lives of police officers who were trained for policing duties, not war. And the call became louder by the weekend when another 6 police officers were killed in an ambush in Kampung Siminul Jaya. That single attack resulted in the highest number of security personnel deaths in an operation since the communist insurgency era and had shocked the public at large. The Government's ability to handle the situation came into being questioned.

Technically, the Government had followed the book in the incident by letting the police force to handle the situation and the Armed Forces in supporting role. They had followed what had been set in place in the past where the police leads in counter-insurgency operations, thus denying the enemy the legitimacy it much sought for.

However, the Government failed to realize the police force in 2013 is no longer like the police force during the insurgency era.  It had since lost much of its paramilitary capabilities due to the Police Field Force (PFF) had been restructured into General Operations Force (GOF).

The changing landscape also saw the police force focusing more on urban policing. Concurrently, the changing nature of threat had almost resulted in PDRM chopping off VAT69 due to budget constraints. They were nearly made redundant and being absorbed into UTK.

Luck was on our side as the former IGP, Tan Sri Musa Hassan had managed to get PDRM to be part the main recipient of National Blue Ocean Strategy (NBOS). Armed Forces personnel were deployed together with PDRM to patrol the streets, thus building a strong rapport between both forces. At command level, both police and military even had a national-level table-top joint exercise in 2011, the first time since the last of Op Gonzalez (Op Gonzalez was a military Op disguised as an exercise).

Not wanting to be caught with our pants down again, National Security Bill was promulgated.

The Da'ish and al-Shabaab Connection
Back in 2012, the war in Syria had gotten worse. Sectarian war had erupted. Some Malaysian youths had managed to find their ways to leave the country and ended up in the battlefield in Syria.  During the Perdana Peace forum held in 2011, a (French perhaps?) Catholic nun was quoted to have said that she had met many young gun-totting militia from Malaysia when she was running her monastery in Syria. It was immediately downplayed by the Government, but it did not do them well as at least 2 Malaysians were later revealed to be arrested in a Middle-East country planning to join the militia in Syria. The only face-saving grace was the arrest of former al Qaeda operative, Yazid Sufaat and two other suspects. Even that, they had managed to bungle up as one of the suspect later turned missing. She is still at large as at today.

With the first Malaysian suicide bomber in Iraq and several other Malaysians being identified fighting for Da'ish, the Government had begun taking action of arresting suspected Da'ish sympathizers.

In March 2015 during the ASEAN Defence Ministers summit, the Government was informed of attempts by Da'ish sympathizers to kidnap the PM, Defence Minister and Home Minister.

And in Sept 2015, intercepted signals indicated Jalan Alor was targeted by terrorist elements for an attack.

al-Shabaab also came into the picture as several of their operatives had been arrested by Bukit Aman's Counter-Terrorist unit. This also became a major concern as al-Shabaab is one of the few terrorist organizations known to be able to launch terror attacks beyond their home ground.  The mall attack in Mombasa, Kenya is a prime example.

A question that would come to the mind of many people is the threat real? I noted some pro-opposition individuals had voiced out that these were merely attempts by the Government to scare the public, say to create a boogeyman that would scare the public into accepting that there's a real and present threat to our public security.

While I do hope the threat is not real, unfortunately the threat is very real.

As at today, the Government had identified at least 5 known terrorist groups in the region that is believed to have pledged loyalty to Abu Bakar al-Baghdadi, the self-appointed Caliph of Da'ish.  All these terrorist groups are well-armed and have experienced fighters.

Okay, let us get back to the bill.

Establishment of a National Security Council
While National Security Council or Majlis Keselamatan Negara (MKN) is already in existence, it's scope is not clearly defined. The Bill is expected to rectify this by getting the council formalized. The newly energized body will now be the central authority in handling matters concerning national security (Section 3(2)).

What I am very interested in here is Section 4(a). For the first time after almost 20 years (perhaps longer), this is the first attempt from Government to redefine and to implement the concept of Total Defence or Pertahanan Menyeluruh (HANRUH). The rather belated recognition that total defence should include non-defence elements is encouraging.

The bill also defined who are supposed to be members of this council (Section 6) and the frequency of meetings to be held, which is every 3 months (Section 7). Members of the Council are:
  1. PM;
  2. Deputy PM;
  3. Defence Minister;
  4. Home Affair Minister;
  5. Minister for Communication and Multimedia;
  6. Chief Secretary to the Government;
  7. Chief of Defence Force;
  8. IGP.

One of the point of contention highlighted by Opposition and human rights activist is the Council does not have representatives from Attorney-General Office and Judiciary. Frankly, I doubt even if both offices have representatives in the council would help. In fact, having a representative from Judiciary would be tantamount of breaching separation of power doctrine as Judiciary would be part of the executive body decision-making process.

Anything to be compared with?
None. The MKN that we have today is much more secretive. Nothing much is known of the body. Thus, the formalization of the body is to me a very much welcomed.

Duties and Powers of NSC 
The Director General's duties and powers is also defined clearly. What is most interesting to me is Section 16(2)(d), which gives the DG the authority to be the central clearing house for all intelligence apparatus. By giving the Council the access to all intelligence collected by other government agencies, this will give the DG most if not all the pieces of the puzzle. Despite the access given, the DG does not have operational control over security forces assets, which means both Police Special Branch and Military Intelligence are still free to perform their current function (Section 15(3)).

Declaration of Security Area
Section 18 is on declaration of security zone. The declaration will result an area being gazetted as security zone for at least 6 months. Section 18(4) talks about extension of the area as security zone. While 18(6) gives power to the Parliament to nullify the PM's declaration. This is significantly different from YDP's power.

Wording-wise, it is quite similar to Article 150 of the Federal Constitution. However, Article 150(8) clearly states that notwithstanding any other provisions in the Constitution, no one can nullify His Majesty's declaration made in view of Article 150(1) and 150(2b).

The act also does not give the PM the right to pass laws unilaterally, which is provided for to YDP in Article 150(2A), 150(2B) and the 150(2C).

Therefore, I am in opinion that the proposed bill does not confer power to the PM to override His Majesty the King.

I am quite interested in the controls provided in Section 18(6). Section 18(6) provides the Parliament as a control entity to ensure any security announcement made by the PM as the chairman of NSC is due to actual situation. Our Parliament meets every quarter. Therefore, each Security Area decree would have had at least 2 Parliamentary meetings being held in between. If the security decree had been found to be political in nature, surely the Parliament have sufficient time to ensure the decree to be nullified.

Wide Powers of Security Forces
The powers provided to security forces is vast. But before I deliberate over their powers, security forces is defined (as defined under Interpretation in Section 2):
(a) Royal Malaysian Police, Royal Malaysia Police Volunteer Reserve and Auxiliary Police as defined under Police Act 1967;
(b) Armed Forces as defined as in Armed Forces Act 1972;
(c) any force which is a visiting force for the purposes of Part I of the Visiting Forces Act 1960 [Act 432]; or
(d) the Malaysian Maritime Enforcement Agency established under the Malaysian Maritime Enforcement Agency Act 2004 [Act 633].

This definition is interesting as this opens up the possibility of joint operations in Malaysian territories with foreign forces. If any of you recall during the days leading to Lahad Datu incident, I recalled reading British govt had offered some assistance to Malaysia. As East Malaysia (Sabah and Sarawak) are not covered under FPDA (Five Power Defence Agreement which consist of UK, Australia, New Zealand, Singapore and Malaysia), this had to be turned down (not that we would accept anyway). The possibility of certain threats that may require us to request for foreign military assistance other than from FPDA countries is now a possibility too.

Powers Vested to the Council
The powers are:
(1) power to exclude and evacuate people from security area (Section 22).
In view of Lahad Datu incident, this gives the Council the right to forcibly evacuate the residents to another location for safety purpose and to smoothen up field operations.

(2) to declare curfew (Section 23).
While this may be seen as restricting civil rights, it is better than being shot for being wrongly identified as combatant in a security zone. During the Lahad Datu intrusion, there were at least incidents of under-age individuals were shot dead by security forces. In one incident, the family was identified as part of the intruders and the boy was found dead after the shootout, while in another case, a boy was shot dead while another man was badly injured when they were heard trying to evade a military position. In both cases, military had been correctly cleared of criminal intent.

(3) power to control movement and road (Section 24).
This gives power to the security forces to stop movement of vehicles and prevent vehicles being commandeered by enemy personnel. The bill also allows security force to use necessary force to prevent enemy movements.

(4) power of arrest (Section 25).
This allows all security forces personnel to formally arrest any suspects found in area of operation without the need of having the arrest formalized with presence of police personnel.

(5) Power to search and seize (Section 26).
Security personnel can now confiscate any items they suspect can be used to aid enemy action.

(6) power to search premises for dangerous things (Section 27).
Due to fluid nature of security action, this allow security personnel to take necessary action without the need of a warrant. While this may be seen intruding human rights, there's no more human rights if you're dead.

(7) power to search premises for dangerous things (Section 28).
Interestingly, items found to be dangerous but not being used in action against security personnel and the owner can be trusted, the item can be returned to its owner under Section 28(4). This would likely refer to weapons belonging to licensed owners who are not aligned to enemy personnel and are likely needing the weapons for personal security.

(8) power to seize vehicle, vessel, aircraft or conveyance (Section 29).
Nothing special and just normal police duty.

(9) power to take temporary possession of land, building or movable property(Section 30).
During operations, security forces may temporarily take possession of land, building or property for their operations. In this context, the property is being appropriated as location for field HQ. The owner is given the right to protest in Section 30(6). Now the good news is, owners will be compensated by the Council for use of his property.

(10) demand for use of resources (Section 31).
This is to me a very critically important section. The fact that our security forces is now under-equipped means many of the military needs require the government to request assistance from private sector. For example, during the Lahad Datu crisis, the military had to engage private sector to transport Adnan ACV all the way from Kuantan to Semporna. This section allows the NSC to take control of civilian assets to be deployed for security purpose. The owners of such asset are given right to request for compensation (Section 32).

(11) power to order destruction of certain unoccupied buildings (Section 33).
During the battles at Kampung Tanduo, the terrorists had been found using civilian structure as their hideouts.

I'm not sure if there is specific legislation before this that permits NSC to compensate the owners of their loss. Therefore, the proposed bill technically is ensuring these house owners get compensated for the destruction of their abode.

Use of reasonable and necessary force (Section 34)
In the course of ensuring security of our nation, security forces personnel often had to make split second decision. At times, the decision to shoot at a target may result in unintended casualty, such as the kid that I had highlighted above.

This act gives legal protection to our security personnel from being persecuted for political expediency, like that of Police Corporal Jenain Subi found himself in the shooting of Aminulrasyid Amzah. This is reiterated again in Section 38 which protects our security personnel from legal proceedings.

On the other hand, the bill had also considered the dignity of suspects arrested (Section 34(2)b). No Jack Bauer moment for our security personnel.

Power to dispense with inquests, etc. (Section 35)
The Bill has also allowed for dispensing of the need for having inquest. This is critical as inquest is required where deaths are unnatural. This particular requirement had during the Lahad Datu incident placed many of our Forensic specialists in the line of fire when they tried to extract bodies of dead terrorists buried inside a common grave.

Most important is the act is to dispense off the requirement for deaths of security personnel and enemy combatants that is directly attributable to combat actions at the security area. Therefore this will not protect other types of unnatural deaths.

Conclusion
I believe the bill once it comes to being, while it provides a sweeping power to those in power, is far too important to live without. In this age where terrorism seems to be the way to make a statement, this bill will serve to protect the people.

In the mean time, I wonder those who are afraid of this bill. Do they have something to hide?

Credit to the following:
Lukman Sheriff, Zul Rafiq and Partners.
Lim Sian See, friend whom I can rely on.


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