International Federation
for Human Rights

The National Security Council Bill, hastily introduced in Parliament by Minister in the Prime Minister’s Department Shahidan Kassim on 1 December, was approved by the Lower House (Dewan Rakyat) on 3 December by a 107-74 vote at the third and final reading after a six-hour debate.

Malaysia’s Upper House (Dewan Negara), controlled by the ruling coalition Barisan Nasional (BN), is expected to discuss the bill in the current meeting, which runs until 22 December. If passed by the Upper House, the bill will be submitted to the Yang di-Pertuan Agong (King) of Malaysia for approval.

The National Security Council Bill establishes the National Security Council (NSC), a central authority responsible for the oversight of matters concerning “national security” – a concept that the bill fails to define.

The eight-member council, headed by the Prime Minister, also includes: the deputy Prime Minister, the Defense Minister, the Home Affairs Minister, the Communication and Multimedia Minister, the Chief Secretary to the government, the Chief of Defense Forces, and the Inspector-General of police.

Article 18 of the draft bill authorizes the Prime Minister to declare a “security area” in any area of the country that the NSC considers “is seriously disturbed or threatened by any person, matter or thing which causes or is likely to cause serious harm to the people.” The declaration of a security area is initially valid for a period of up to six months and may be renewed indefinitely in six-month extensions. The declaration of security areas - and its subsequent extensions - must be approved by both houses of Parliament.

In designated ‘security areas’, Article 25 of the draft bill gives members of the security forces the power to arrest “any person found committing, alleged to have committed or reasonably suspected of having committed any offense under any written laws” without a warrant. Similarly, Article 26 gives members of the security forces the power to stop and search individuals and search premises without warrant.

The overly broad criteria that form the basis for the designation of a ‘security area’ make the law subject to abuses in the form of arbitrary arrests and detentions, arbitrary searches and seizures, and restrictions on the right to peaceful assembly. The draft bill does not contain any provisions to protect the rights of individuals arrested under Article 25, such as the right to be promptly informed of the charges, the right to a lawyer, and the right to be brought before a judge. Article 36 only prescribes that those arrested should be handed over to the officer-in-charge of the nearest police station “without unnecessary delay.” The lack of safeguards increase the risk of abuses committed during custody, including torture and enforced disappearance.

In blatant contradiction with international standards, Article 34 of the draft National Security Council Bill authorizes the use of “reasonable and necessary” force by members of the security forces “to preserve national security.” The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials state that law enforcement officials should apply non-violent means before resorting to the use of force. According to the Principles, only when the use of force is unavoidable, it should be “proportional to the seriousness of the offence” – a requirement missing from Article 34 of the draft National Security Council Bill.

Finally, Article 38 of the draft bill grants immunity from prosecution to various authorities and officials (including members of the NSC and the security forces) for acts committed in the exercise of their functions.