The National Security Council (NSC) Act that authorises the council to declare an emergency has disrupted the “chain of command” from the Yang di-Pertuan Agong, lawyer Andrew Khoo asserted today.
Speaking at the civil society conference on national security here, Khoo said that the NSC Act was not accompanied by a legislation that passes on the emergency declaration powers from the Agong to the council.
“There is no legislation that passes the authority of the Agong to the NSC. The chain of command has been disrupted, but there is no legal document that provides for that switch,” he said.
This was because the NSC Act does not provide the need to refer to the Agong before the declaration of emergency.
“The question now is why we need to have two different frameworks in dealing with the framework of national security,” he said.
The Federal Constitution grants the power of declaring emergencies to the Agong.
Under the now repealed Emergency Ordinance (EO), the executive are still required to seek the consent of the ruler before emergency can be declared.
“There are certain things about a constitutional monarch where the monarch has to follow the advice given by the cabinet,” Khoo said.
“But emergency declaration is one of the areas where the Agong actually has personal discretion,” he added.
Khoo also said that the NSC Act might have been rushed through Parliament because NSC, which has been in operation since 1971 under the now abolished EO, operated without a legal protection for four years.
“This was because when the EO and related laws were abolished in 2012, NSC technically should not have been in operation as well. But it continued operating until July 31, 2016 without a legal framework,” he said.
The NSC Act came into force on August 1 despite not receiving royal assent.
The Act has come under criticism for providing wide ranging powers to the council, chaired by the prime minister, to declare a security area and command military forces.