COMMENT This opinion piece seeks to demonstrate that Parliament did not have the power to enact the National Security Council Act (the ‘Act’) under Article 74(1) of the constitution. This piece is essentially a summary of an article entitled “The National Security Council Bill: A Colorable Exercise of Power” which was published in the Malayan Law Journal with the citation [2016] 2 MLJ cxix. That article can be obtained here.

Contravention of Part II (Fundamental Liberties) of the constitution

It is clear that the provisions in the Act contravene certain key fundamental rights in the constitution. This is explained in page cxxvii of the article. The issue here is whether Parliament had legitimately restricted the said fundamental rights.

Parliament’s power to make law

Article 74(1) of the constitution provides Parliament with the general power to make laws on matters in the Federal and Concurrent List. However, Parliament must conform to the constitution as a whole when enacting laws under Article 74(1) (see Ah Thian v Government of Malaysia [1976] 2 MLJ 112 at p.113).

As noted at the outset, the Act was purportedly passed pursuant to Article 74(1) of the constitution. This is significant as, leaving aside the enacting of laws aimed at amending the constitution, that instrument envisages three separate and distinct spheres of legislative process by Parliament. Broadly speaking, these are the legislative process under Article 74(1), that under Article 149 and lastly, under Article 150(5).

In the first or ordinary sphere, Parliament makes such law that is necessary in the usual course. In the second and third sphere, due to extenuating circumstances, defined by Articles 149 and 150 of the constitution, Parliament is empowered to enact extraordinary legislation even where such legislation is inconsistent with certain fundamental liberties guaranteed under Part II of the constitution.

The rationale of these exceptional legislative powers is that extreme measures may be required to safeguard essential national interests such as where an emergency has been declared. That these extraordinary powers were meant to be exceptional, and as such limited, is beyond doubt (see Federation of Malaya Constitutional Commission Report (‘Reid Commission Report’) at paragraphs 172-175). The critical part of the Reid Commission Report reads:

“The Federation must have adequate power in the last resort to protect these essential national interests. But in our opinion infringement of fundamental rights or of State rights is only justified to such an extent as may be necessary to meet any particular danger which threatens the nation.”

The legislative power of Parliament to make laws under Article 74(1) of the constitution is circumscribed by other provisions of the same (see Article 74(3) of the constitution). Considering the intention of the Reid Commission noted above, it is plain that Article 74(3) was intended to confine the legislative power of Parliament under Article 74(1) to matters in the Federal and Concurrent Lists, and to disentitle it from legislating on matters falling within the ambit of Articles 149 and 150, save as permitted by those provisions.

This reading of Article 74(3) is further reinforced by the principle that fundamental liberties guaranteed by the Constitution can only be abridged in the manner provided for by the Constitution (see the dicta of Raja Azlan Shah, FCJ in Loh Kooi Choon vs Government of Malaysia [1977] 2 MLJ 187 (‘Loh Kooi Choon’) at p. 189).

The Act is aimed at denying key fundamental liberties guaranteed under Part II of the constitution, albeit in the so-called national interest. Understood in the light of Article 74(3) and dicta of Raja Azlan Shah in Loh Kooi Choon, it is this author’s respectful view that Parliament did not have the power to enact the provisions of the Act in issue.

Parliament could have only enacted the Act, and similar laws, under Articles 149 (pre-condition of identifying a threat to national security and including the same in a recital) and Article 150(5) (as emergency law during an emergency period).

Usurpation of Agong’s power

The Act purports to vest powers that are the exclusive domain of the Yang di-Pertuan Agong (‘YDPA’) in the prime minister. The relevant provisions, and their legal effect, are summarised in page cxxxviii of the article.

The powers conferred on the Agong under Article 150 of the constitution are exclusive to his royal highness (see Johnson Tan Han Seng vs Public Prosecutor [1977] 2 MLJ 66 at p. 76). This is in line with the doctrine of separation of powers.

It stands to reason that Parliament had encroached upon the exclusive powers of the Agong in enacting certain provisions as identified in the article. It had purported to arrogate to the prime minister such powers of the Agong in a manner that goes beyond what the Agong is permitted to do.

The Act places no limits on the prime minister’s power to declare an area as a security area. It further seeks to allow for those powers to be exercised in an unlimited and unaccountable manner.

It had further effectively amended the constitution by creating an authority that was parallel in status to the Agong, vesting in its powers that transcended those vested in the Agong under Article 150. A law amending the constitution requires the vote of not less than two-thirds of the members in either House of Parliament (see Article 159(3) of the constitution), and must be enacted by way of the process set down in Article 159(3) of the constitution (see Loh Kooi Choon at p.190). This was not done.

Colourable exercise of power

A constitutional authority cannot do indirectly what it is not permitted to do directly. If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge. That would be clearly a fraud on the constitutional provision. Parliament cannot transgress its legislative power in a covert or indirect manner (see DC Wadhwa and Ors vs State of Bihar AIR 1987 SC 579 at pp. 589-560).

Parliament had covertly used its power under Article 74(1) of the constitution to bypass the requirements of Article 149 and 150 of the constitution. The Act puts in place a stratagem which is repugnant to the constitutional scheme as it would enable the prime minister to exercise powers which are vested in the Agong.

As such, the passing of the Act by the Dewan Rakyat and Dewan Negara was a colourable exercise of power (see Mamat Bin Daud & Ors vs Government of Malaysia [1988] 1 MLJ 119 at pp.123-124).

Conclusion

Though there may be some value in the establishment of a council playing an advisory role, the establishment of the National Security Council as contemplated under the Act goes well beyond that.

The Act serves to concentrate untrammeled powers in the hands of the prime minister in a manner that can in no way be reconciled with democracy and the Rule of Law, not least for it suppressing, if not wholly obliterating, the necessary limits and checks and balance that such vast powers require. As Raja Azlan Shah FCJ (as he then was) said in Loh Kooi Choon at p. 188;

“The constitution is not a mere collection of pious platitudes. It is the supreme law of the land embodying three basic concepts: One of them is that the individual has certain fundamental rights upon which not even the power of the State may encroach. The second is the distribution of sovereign power between the States and the Federation, that the 13 States shall exercise sovereign power in local matters and the nation in matters affecting the country at large. The third is that no single man or body shall exercise complete sovereign power, but that it shall be distributed among the Executive, Legislative and Judicial branches of government, compendiously expressed in modem terms that we are a government of laws, not of men.”

(This article is a summary of an article written by Malik Imtiaz and the author which was published in the Malayan Law Journal.)

SURENDRA ANANTH is an advocate and solicitor in the High Court of Malaya, and also the co-deputy chair of the Malaysian Bar Constitutional Law Committee.