The recently-gazetted National Security Council (NSC) Act is clearly bad law.

Numerous columns and articles covering its unholy haste through the Dewan Rakyat and Dewan Negara in December last year, and now in the wake of its passage into law without the Yang di-Pertuan Agong’s express assent, have discussed in detail and extensively why and how this piece of legislation is extremely problematic.

Besides allowing for extensive curtailing and further restrictions on constitutionally guaranteed freedoms and civil liberties, the breadth of broad coverage, lack of definition and specificity of offences, and the subjective and arbitrary nature of the law are ingredients for future unjust judgments.

Let me share why I think the government of Malaysia deemed it necessary to enact this legislation in the first place and the ‘instant coffee’ approach that it has taken to do it.

Let me state that what I suggest here is purely speculative and due to the lack of transparency and opaqueness in which Malaysia’s government operates, particularly on security matters, it would be hard to corroborate some of these points.

So here we go.

Despite the claims contained in the popular rhetoric, outcry and denunciation by members of Malaysia’s opposition parties and activists, I don’t believe the legislation is actually aimed at them. One reason being that government already has a surfeit of security and criminal laws and tools to deal with outspoken, pesky and irritating members of the opposition, activists, media and the occasional graphic designer.

Certainly, the Najib administration might make use or take advantage of this new law and it won’t be shy about it but I believe that the original intent of the NSC Act lies elsewhere.

With the sunset of the Barack Obama administration fast approaching, one outstanding promise from the presidential campaign of 2008 remains unfulfilled by the outgoing president, namely the closure of the detention facility at Guantanamo Bay, Cuba.

First established in January 2002 in the wake of the Sept 11 attacks, the declared purpose of the prison camp as stated by then-secretary of defence Donald Rumsfeld, was to “detain extraordinarily dangerous people, to interrogate detainees in an optimal setting, and to prosecute detainees for war crimes”.

For more than a decade, this notorious facility has been a stain on the American consciousness and human rights record which was once described by in 2005 by Amnesty International as “the Gulag of our times”.

Several times during the course of his administration, Obama has attempted to close Guantanamo but to no avail. In February this year, he presented to the US Congress what was likely to be his final plan to achieve this objective.

He stated that the detention centre not only does not advance the US national security agenda, it actually undermines the latter. Obama emphasised that the continued existence of the facility was “contrary to our values” and he emphatically stated that he didn’t want to pass this problem to the next president.

The closure of the Guantanamo Bay detention facility would be a tremendous achievement, add on to his already significant legacy and end a dark chapter in US history.

This plan involves the relocation of a number of remaining Guantanamo detainees (those deemed too dangerous) to US-based detention facilities while the majority would be transferred for incarceration in other countries.

This is not new. Hundreds of detainees have already been transferred prior to Obama’s February announcement to more than 58 countries around the world which have included France, Britain, Saudi Arabia, Jordan, Germany, Australia and Yemen.

In December 2014, Prime Minister Najib Abdul Razak and President Obama infamously hit the links at the Marine Corps Base in Hawaii. The former was soundly criticised for continuing to golf while the worst flooding in decades hit the Malaysian countryside.

What lit my curiosity was that months later, two Tunisian and three Yemeni detainees were transferred to Kazakhstan. It is no secret that the US government has been looking for locations which would be able to take in the remaining Guantanamo detainees.

Obama did not repeatedly visit Malaysia over the course of two years for his love of satay, rojak, char koay teow and the temperamental weather. He certainly wasn’t trying to boost his popularity rating at home by cosying up to a South-East Asian leader with challenging issues of his own.

I believe that besides the critical discussions related to the Trans-Pacific Partnership Agreement (TPPA), the issue of whether Malaysia would be able to take in Guantanamo detainees was also raised in between the 18 holes of the Hawaiian golf course and during his visits to Malaysia Truly Asia.

Laying the groundwork?

Was Obama laying the groundwork, allaying concerns and obtaining the support and agreement of the Malaysian government to be the first South-East Asian country to take in detainees from Guantanamo?

Think about it. Malaysia fits the profile of a country suitable for this exercise. It is a relatively stable Muslim majority country with a democracy that is perceived to be moderate, progressive and friendly to the US. It has been seen by Washington to be a regional player which is tough and aggressive in combatting terrorism and extremism.

It is certainly not faint-hearted or shy in enforcing draconian anti-terror and security laws.

Consider Part V of the NSC Act.

Under the new law, the prime minister in his capacity as the chairperson of the National Security Council is empowered to designate and declare a specific geographical location as a security area (which could include physical structures such as a prison or detention facility) for six months at a time.

Within the security zone, a situation akin to a state of emergency would exist, allowing for the Prime Minister, the National Security Council and members of the uniformed services to have wide-ranging extrajudicial powers and immunity from prosecution for their actions. The right to a writ of habeas corpus would almost certainly be non-existent.

Arguably such legal conditions must exist before a detainee from a jurisdiction such as Guantanamo were to be relocated into a Malaysian detention facility. It would allow sufficient legal cover and scope for necessary actions to be taken for their continued incarceration.

After all, these are non-citizens who have been detained without charge or trial, arrested and imprisoned on foreign soil, and have not committed any crime under Malaysian law. Some were victims of rendition.

The haste in which this piece of legislation has been written, approved and now brought into law, in the absence of the Yang di-Pertuan Agong’s express assent, runs parallel to Obama’s timetable to close the Guantanamo detention facility before his term ends.

We might actually be helping President Obama fulfil his campaign promise.

Think about it.

AZRUL MOHD KHALIB is a social activist who works on HIV/AIDS, sexual reproductive health and human rights issues.