1 PART I PRELIMINARY-1. Short title and commencement.

(1) This Act may be cited as the National Security Council Act 2016 .

(2) This Act comes into operation on a date to be appointed by the Prime Minister by notification in the Gazette .

EDITORIAL COMMENT AND ANNOTATION

Whether the National Security Council Act 2016 (NSCA) is a subversive law that needs to be enacted under art 149 of the Federal Constitution (FC)

Refer to Datuk Seri Anwar Ibrahim v. Kerajaan Malaysia & Anor [2021] 6 MLRA 42 where Federal Court stated that:

" The mere fact that the word "security" is used and the mere fact the inclusion of special power to deploy personnel in a security area, do not in my view make the NSCA a law against subversion as envisaged by art 149 of the FC. The word "security" itself has a very wide meaning. F

2 PART I PRELIMINARY-2. Interpretation.

In this Act, unless the context otherwise requires:

  "armed forces"  has the meaning assigned to it in the Armed Forces Act 1972 [Act 77] ;

  "dangerous things"  includes firearms, ammunition, explosive substances, weapons or any other thing that is reasonably likely to be used to cause serious damage to property, or death or serious injury to a person;

  "Government Entities"  includes:

(a) any ministry, department, office, agency, authority, commission, committee, board or council of the Federal Government, or of any of the State Governments, established under any written law or otherwise;

(b) any local authorities; and

(c) the Security Forces;

  "security area"  means any

3 PART II NATIONAL SECURITY COUNCIL-3. Establishment of the National Security Council.

(1) A council by the name of the "National Security Council" is established.

(2) The Council shall be the Government's central authority for considering matters concerning national security.

4 PART II NATIONAL SECURITY COUNCIL-4. Functions of the Council.

The Council shall have the following functions:

(a) to formulate policies and strategic measures on national security, including sovereignty, territorial integrity, defence, socio-political stability, economic stability, strategic resources, national unity and other interests relating to national security;

(b) to monitor the implementation of the policies and strategic measures on national security;

(c) to advise on the declaration of security areas; and

(d) to perform any other functions relating to national security for the proper implementation of this Act.

5 PART II NATIONAL SECURITY COUNCIL-5. Powers of the Council.

Notwithstanding any other written law, the Council shall have the power to do all things necessary or expedient for or in connection with the performance of its functions including:

(a) to control and coordinate Government Entities on operations concerning national security; and

(b) to issue directives to any Government Entity on matters concerning national security.

6 PART II NATIONAL SECURITY COUNCIL-6. Membership of the Council.

(1) The Council shall consist of the following members:

(a) the Prime Minister as Chairman;

(b) (Deleted by Act A1625:s.3);

(c) the Minister charged with the responsibility for defence;

(d) the Minister charged with the responsibility for home affairs;

(e) the Minister charged with the responsibility for communication and multimedia;

(f) the Chief Secretary to the Government;

(g) the Chief of Defence Forces; and

(h) the Inspector General of Police.

[Renumbering as (1) by Act A1625:s.3]

(2) The Chairman shall appoint from amongst the members of the Council a Deputy Chairman.

[(2) Ins. Act A1625:s.3]

7 PART II NATIONAL SECURITY COUNCIL-7. Meetings.

(1) The Council shall convene its meetings as often as may be necessary but which shall not be less than once in every three months.

(2) The meetings shall be held at the time and place as determined by the Chairman.

8 PART II NATIONAL SECURITY COUNCIL-8. Procedure at meetings.

(1) The Chairman shall preside at all meetings of the Council.

(2) If the Chairman is absent from any meeting of the Council, he may appoint the Deputy Chairman or, in the absence of the Deputy Chairman, any other member of the Council, to replace him as the chairman of the meeting.

[(2) Am. Act A1625:s.4]

(3) The quorum of the Council shall be five.

9 PART II NATIONAL SECURITY COUNCIL-9. Temporary exercise of functions of Chairman.

(1) The Deputy Chairman shall act as the Chairman for the period when:

(a) the office of the Chairman is vacant;

(b) the Chairman is absent from duty or from Malaysia; or

(c) the Chairman is, for any other reason, unable to carry out his functions.

(2) The Deputy Chairman shall, during the period in which he is carrying out the functions of the Chairman under this section, be deemed to be the Chairman.

10 PART II NATIONAL SECURITY COUNCIL-10. Council may invite others to meetings.

The Council may invite any person not being a member of the Council to attend its meetings to advise the Council on any matter under discussion.

11 PART II NATIONAL SECURITY COUNCIL-11. Procedures.

Subject to this Act, the Council may determine its own procedure.

12 PART II NATIONAL SECURITY COUNCIL-12. Council may establish committees.

(1) The Council may establish any committee as it considers necessary or expedient to assist it in the performance of its functions.

(2) The Council may appoint any person to be a member of any committee established under subsection (1).

(3) The Council may appoint any of its members or any other person to be the chairman of the committee established under subsection (1).

(4) The committee shall be subject to and act in accordance with any direction given by the Council.

(5) The committee shall meet as often as may be necessary at the time and place as the chairman of the committee may determine.

(6) The committee may regulate its own procedure.

(7) The committee may invite any other person to attend any meeting of the committee for the purpose of advising the committee on any matter under discussion.

13 PART II NATIONAL SECURITY COUNCIL-13. Secretary to the Council.

(1) The Director General shall be the

(2) The Secretary shall be responsible:

(a) for the overall administration and management of the functions and the day-to-day affairs of the Council; and

(b) for the carrying out of any other duties as directed by the Council.

(3) The Secretary shall, in carrying out his responsibilities, act under the direction of the Council.

14 PART II NATIONAL SECURITY COUNCIL-14. Fund.

The Government shall provide sufficient funds for the Council annually to enable the Council to perform its functions under this Act.

15 PART III DUTIES OF THE DIRECTOR GENERAL OF NATIONAL SECURITY AND GOVERNMENT ENTITIES-15. Appointment of the Director General of National Security and officers.

(1) The Prime Minister shall, upon the recommendation of the Chief Secretary to the Government, appoint a person from amongst the public officers to be the Director General of National Security.

(2) There shall be appointed Deputies Director General of National Security and such number of other officers and servants from amongst the public officers as is considered necessary or expedient for the purposes of carrying out and giving effect to the provisions of this Act.

(3) The Director General shall be responsible to the Council in the performance of his duties under this Act.

(4) The Deputies Director General and such other officers and servants referred to in subsection (2) shall be subject to the general direction and supervision of the Director General.

16 PART III DUTIES OF THE DIRECTOR GENERAL OF NATIONAL SECURITY AND GOVERNMENT ENTITIES-16. Duties and powers of the Director General.

(1) The Director General shall have such duties and powers as may be imposed or conferred upon him by the Council.

(2) Without prejudice to the generality of subsection (1), the Director General shall have the following duties:

(a) to implement the policies and strategic measures on national security formulated by the Council;

(b) to coordinate and monitor the implementation of the policies and strategic measures on national security by the Government Entities;

(c) to advise and make recommendations to the Council on strategic measures concerning national security;

(d) to collect, evaluate, correlate and coordinate the information and intelligence from all Government Entities, and to disseminate the information and intelligence to the Government Entities as may be essential in the interest of national security;

(e) to supervise and monitor the impl

17 PART III DUTIES OF THE DIRECTOR GENERAL OF NATIONAL SECURITY AND GOVERNMENT ENTITIES-17. Duties of Government Entities in relation to information or intelligence.

(1) In the interest of national security, the Government Entities shall immediately report to the Council through the Director General any information or intelligence that affects or is likely to affect national security together with the assessment of the credibility of such information or intelligence.

(2) Upon direction by the Council, any Government Entity or any person shall immediately make available any information or intelligence in its or his possession which relates to national security to the Council through the Director General.

(3) For the purposes of this section, the Council may issue a directive to facilitate the sharing of information and intelligence between the Government Entities.

18 PART IV DECLARATION OF SECURITY AREA-18. Declaration of security area.

(1) Where the Council advises the Yang di-Pertuan Agong that the security in any area in Malaysia is seriously disturbed or threatened by any person, matter or thing which causes or is likely to cause serious harm to the people, or serious harm to the territories, economy, national key infrastructure of Malaysia or any other interest of Malaysia, and requires immediate national response, the Yang di-Pertuan Agong may, if he considers it to be necessary in the interest of national security, declare in writing the area as a security area.

[(1) Am. Act A1625:s.5]

(2) A declaration made under subsection (1) shall:

(a) apply only to such security area as specified in the declaration; and

(b) cease to have effect upon the expiration of the period specified in subsection (3) or upon the expiration of the period of renewal specified in subsection (4), or in accordance with su

19 PART IV DECLARATION OF SECURITY AREA-19. Executive order of the Council.

(1) Upon a declaration being made under section 18, the Council may issue an executive order to the Director of Operations or such Government Entities as the Council deems necessary in relation to the security area in the interest of national security.

(2) The executive order issued by the Council may include the deployment of any Security Forces or any other relevant Government Entities to the security area.

(3) The Council may amend, replace or revoke the executive order issued under subsection (1).

(4) The executive order shall remain in force until it is revoked by the Council but notwithstanding this it shall cease to have effect if the declaration made under section 18 ceases to have effect or is revoked.

20 PART IV DECLARATION OF SECURITY AREA-20. Director of Operations.

(1) The Council shall appoint a Director of Operations to be the person in charge of the operations in a security area.

(2) The Director of Operations shall be responsible to the Council.

21 PART IV DECLARATION OF SECURITY AREA-21. Duties and powers of Director of Operations.

(1) The Director of Operations shall have the following duties:

(a) to prepare strategic plans for the deployment of the Security Forces to the security area and to provide strategic direction to such Security Forces;

(b) to establish unified commands of the Security Forces in the security area;

(c) to supervise, control and co-ordinate the deployment of the Security Forces to the security area; and

(d) to perform such other functions as directed by the Council.

(2) The Director of Operations shall have the power to do all things necessary or expedient for or in connection with the performance of his duties in the security area.

(3) In the interest of national security, the Director of Operations may in relation to a security area:

(a) establish a committee as he considers necessary or expedient to assist him in c

22 PART V SPECIAL POWERS OF THE DIRECTOR OF OPERATIONS AND SECURITY FORCES DEPLOYED TO THE SECURITY AREA-22. Exclusion and evacuation of persons.

(1) The Director of Operations may, by order in writing, exclude any person from the security area or any part of the security area for a period as specified in the order.

(2) The Director of Operations may, by order in writing, evacuate any person or group of persons from the security area or any part of the security area, and resettle such person or group of persons to an area as determined by the Director of Operations.

(3) Any person who fails to comply with the order under subsection (1) or (2) commits an offence and shall, on conviction, be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to both.

23 PART V SPECIAL POWERS OF THE DIRECTOR OF OPERATIONS AND SECURITY FORCES DEPLOYED TO THE SECURITY AREA-23. Curfew.

(1) The Director of Operations may, in writing, order all persons in the security area or any part of the security area to remain indoors between such hours as may be specified in the order unless he is in possession of a written permit in that behalf issued by the Director of Operations.

(2) No order under this section shall apply to:

(a) the Yang di-Pertuan Agong, a Ruler or Yang di-Pertua Negeri;

(b) any member of the Security Forces or personnel of other Government Entities when acting in the course of his duty in the security area; or

(c) any person or class of persons exempted from the order by the Director of Operations.

(3) Any person who fails to comply with the order under subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to bo

24 PART V SPECIAL POWERS OF THE DIRECTOR OF OPERATIONS AND SECURITY FORCES DEPLOYED TO THE SECURITY AREA-24. Power to control movement, road, etc .

(1) The Director of Operations may direct any member of the Security Forces in the security area:

(a) to control the movement of any person or any vehicle, vessel, aircraft or conveyance in and out of the security area, including to direct to leave the security area and to refuse entry into the security area;

(b) to control or prohibit the use of any road or water-way in, or air space above, any security area by any person or any vehicle, vessel, aircraft or conveyance; or

(c) to close any road or water-way in the security area.

(2) If a member of the Security Forces in the security area believes on reasonable grounds that a dangerous thing is in or on any vehicle, vessel, aircraft or conveyance in the security area, the member of the Security Forces may do anything necessary to stop the vehicle, vessel, aircraft or conveyance including erecting barriers or other stru

25 PART V SPECIAL POWERS OF THE DIRECTOR OF OPERATIONS AND SECURITY FORCES DEPLOYED TO THE SECURITY AREA-25. Power of arrest.

Any member of the Security Forces may, without warrant, arrest any person found committing, alleged to have committed or reasonably suspected of having committed any offence under any written laws in the security area.

26 PART V SPECIAL POWERS OF THE DIRECTOR OF OPERATIONS AND SECURITY FORCES DEPLOYED TO THE SECURITY AREA-26. Power to search and seize.

(1) Any member of the Security Forces may, without warrant and with or without assistance, stop and search any individual, vehicle, vessel, aircraft or conveyance in the security area if he suspects that any article or thing being evidence of the commission of an offence against any written law is likely to be found on the individual or in the vehicle, vessel, aircraft or conveyance, and may seize any article or thing so found.

(2) Any member of the Security Forces may, without warrant, enter and search any premises or place if he suspects that any article or thing being evidence of the commission of an offence against any written law is likely to be found on the premises or place, and may seize any article or thing so found.

27 PART V SPECIAL POWERS OF THE DIRECTOR OF OPERATIONS AND SECURITY FORCES DEPLOYED TO THE SECURITY AREA-27. Power to search premises for dangerous things.

(1) If any member of the Security Forces believes on reasonable grounds that:

(a) there is a dangerous thing on any premises in the security area; and

(b) it is necessary as a matter of urgency to make the dangerous thing safe or to prevent it from being used, the member of the Security Forces may:

(A) enter into and search the premises;

(B) seize anything found on the premises in the course of the search that the member of the Security Forces believes on reasonable grounds to be a dangerous thing; and

(C) search any person who is at or near the premises where the search is being carried out and seize any dangerous thing found on the person whom the search member believes on reasonable grounds to have any dangerous thing in his possession.

(2) If any member of the Security Forces seizes a dangerous thing:

(a)<

28 PART V SPECIAL POWERS OF THE DIRECTOR OF OPERATIONS AND SECURITY FORCES DEPLOYED TO THE SECURITY AREA-28. Power to search persons for dangerous things.

If any member of the Security Forces in the security area believes on reasonable grounds that a person in the area has a dangerous thing in the person's possession, the member of the Security Forces may:

(a) search the person for such dangerous thing; and\

(b) seize such dangerous thing found in the search.

29 PART V SPECIAL POWERS OF THE DIRECTOR OF OPERATIONS AND SECURITY FORCES DEPLOYED TO THE SECURITY AREA-29. Power to seize vehicle, vessel, aircraft or conveyance.

Any member of the Security Forces may seize any vehicle, vessel, aircraft or conveyance in the security area if he suspects that the vehicle, vessel, aircraft or conveyance is likely to be connected with the commission of an offence under any written laws.

30 PART V SPECIAL POWERS OF THE DIRECTOR OF OPERATIONS AND SECURITY FORCES DEPLOYED TO THE SECURITY AREA-30. Power to take temporary possession of land, building or movable property.

(1) The Director of Operations or any person authorized by the Director of Operations may, if it appears to him to be necessary or expedient to do so in the interest of national security, or for the accommodation of any Security Forces, take temporary possession of any land, any building or part of a building, or any movable property in any security area and may give such directions as appear to him necessary or expedient in connection with the taking of possession of that land, building or movable property.

(2) Any member of the Security Forces may take such steps and use such force as appears to him to be reasonably necessary for securing compliance with directions given to any person under subsection (1).

(3) While any land, building or movable property is in temporary possession of the Director of Operations or any person authorized by the Director of Operations under this section, the land, building or movable property may, notwith

31 PART V SPECIAL POWERS OF THE DIRECTOR OF OPERATIONS AND SECURITY FORCES DEPLOYED TO THE SECURITY AREA-31. Demand for use of resources.

(1) If it appears to the Director of Operations or any person authorized by the Director of Operations that any resources is required in preserving national security in the security area, the Director of Operations or any person authorized by the Director of Operations may demand that such resources be utilized for such purpose.

(2) Compensation shall be paid to the person whose resources are demanded under this section.

(3) For the purposes of this section, "resources" includes utilities and assets.

32 PART V SPECIAL POWERS OF THE DIRECTOR OF OPERATIONS AND SECURITY FORCES DEPLOYED TO THE SECURITY AREA-32. Compensation.

If possession is taken of any land, building or movable property under section 30, or resources are demanded to be utilized under section 31, compensation in respect of the possession or utilization shall be as assessed by the Director General.

33 PART V SPECIAL POWERS OF THE DIRECTOR OF OPERATIONS AND SECURITY FORCES DEPLOYED TO THE SECURITY AREA-33. Power to order destruction of certain unoccupied buildings.

(1) If in any security area any building or structure is left unoccupied by reason of the operation of any order made under this Part, the Director of Operations or any person authorized by the Director of Operations may if it appears to him:

(a) to be likely that the building or structure will, if left standing, be used by persons who intend, or are about, to act or have recently acted in a manner prejudicial to national security or by any other person who is likely to harbour any such person; and

(b) to be impracticable in any other way to prevent such use, destroy or authorize the destruction of that building or structure.

(2) Compensation shall be paid to any aggrieved person in respect of the destruction of any building or structure under this section if the aggrieved person satisfies the Director General that:

(a) the building or structure was erect

34 PART V SPECIAL POWERS OF THE DIRECTOR OF OPERATIONS AND SECURITY FORCES DEPLOYED TO THE SECURITY AREA-34. Use of reasonable and necessary force.

(1) Any member of the Security Forces in a security area may use such force against persons and things as is reasonable and necessary in the circumstances to preserve national security.

(2) The use of such force against a person shall not:

(a) include anything that is likely to cause the death of, or grievous bodily harm to, the person unless the member of the Security Forces believes on reasonable grounds that doing such action is deemed necessary:

(i) to protect the life of, or to prevent serious injury to, another person, including the member; or

(ii) to protect the security area or any part of the security area against a threat of armed attack; or

(b) subject the person to greater indignity than is reasonable and necessary in the circumstances.

35 PART V SPECIAL POWERS OF THE DIRECTOR OF OPERATIONS AND SECURITY FORCES DEPLOYED TO THE SECURITY AREA-35. Power to dispense with inquests, etc .

Notwithstanding anything to the contrary in any written law, in the security area:

(a) a Magistrate or a coroner may dispense with the holding of a death inquiry or inquest on the dead body of any member of the Security Forces on duty; and

(b) where the Magistrate or coroner responsible for holding a death inquiry or inquest upon the body of any person is satisfied that the person has been killed in the security area as a result of operations undertaken by the Security Forces for the purpose of enforcing any written laws, the Magistrate or coroner, as the case may be, may dispense with the holding of a death inquiry or inquest on the body of the person.

36 PART V SPECIAL POWERS OF THE DIRECTOR OF OPERATIONS AND SECURITY FORCES DEPLOYED TO THE SECURITY AREA-36. Arrested persons and things seized to be handed over to police.

Any person arrested and taken into custody under this Act and any things seized shall be handed over to the officer-incharge of the nearest police station without unnecessary delay, together with a report of the circumstances occasioning the arrest or seizure.

37 PART VI GENERAL-37. Obligations of secrecy.

(1) Except for any of the purposes of this Act or for the purposes of any civil or criminal proceedings under any written law or where otherwise authorized by the Council:

(a) no member of the Council or committee or any person attending any meeting of the Council or committee, whether during or after his tenure of office or employment, shall disclose any information obtained by him in the course of his duties; and

(b) no other person who has by any means access to any information or document relating to the affairs of the Council shall disclose such information or document.

(2) Any person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding five years or to a fine not exceeding one hundred thousand ringgit or to both.

[(2) Am. Act A1625:s.7]

38 PART VI GENERAL-38. Protection against suits and legal proceedings.

No action, suit, prosecution or any other proceeding shall lie or be brought, instituted or maintained in any court against the Council, any committee, any member of the Council or committee, the Director of Operations, or any member of the Security Forces or personnel of other Government Entities in respect of any act, neglect or default done or omitted by it or him in good faith, in such capacity.

39 PART VI GENERAL-39. Public servant.

Every member of the Council or committee, the Director of Operations, or every member of the Security Forces or personnel of other Government Entities while discharging his duty or performing his functions under this Act in such capacity shall be deemed to be a public servant within the meaning of the Penal Code [Act 574] .

40 PART VI GENERAL-40. Public Authorities Protection Act 1948.

The Public Authorities Protection Act 1948 [Act 198] shall apply to any action, suit, prosecution or proceedings against the Council, any committee, any member of the Council or committee, the Director of Operations, or any member of the Security Forces or personnel of other Government Entities in respect of any act or thing done or committed by it or him in such capacity.

41 PART VI GENERAL-41. Prosecution.

No prosecution for an offence under this Act shall be instituted except by, or with the written consent of, the Public Prosecutor.

42 PART VI GENERAL-42. Regulations.

(1) The Council may make regulations for the purposes of carrying out or giving effect to the provisions of this Act.

[(1) Am. Act A1625:s.8]

(2) Without prejudice to the generality of subsection (1), the Council may make regulations:

[Am. Act A1625:s.8]

(a) to control the movement of persons, vehicles, vessels, aircrafts and conveyance in any security area;

(b) to prescribe any prohibited action and activities during the period of the declaration made under section 18;

(c) to prescribe the procedures for the taking possession of land, buildings and other movable property, and the procedures for demand for use of resources in any security area; and

(d) to prescribe the procedures for the destruction of buildings and other structures in any security area.

(3) The regulations made und

42A PART VI GENERAL-42A. Liability of director, etc., of company, etc.

Where any person who commits an offence under this Act or any regulations made under this Act is a company, limited liability partnership, firm, society or other body of persons, a person who at the time of the commission of the offence was a director, compliance officer, partner, manager, secretary or other similar officer of the company, limited liability partnership, firm, society or other body of persons or was purporting to act in the capacity or was in any manner or to any extent responsible for the management of any of the affairs of the company, limited liability partnership, firm, society or other body of persons or was assisting in its management:

(a) may be charged severally or jointly in the same proceedings with the company, limited liability partnership, firm, society or other body of persons; and

(b) if the company, limited liability partnership, firm, society or other body of persons is fou

42B PART VI GENERAL-42B. Liability of person for act, etc., of employee, etc.

Where any person would be liable to any punishment or penalty under this Act or any regulations made under this Act for any act, omission, neglect or default committed:

(a) by that person's employee in the course of his employment;

(b) by that person's agent when acting on behalf of that person; or

(c) by the employee of that person's agent when acting in the course of his employment by that person's agent or otherwise on behalf of that person's agent acting on behalf of that person,

that person shall be liable to the same punishment or penalty for every such act, omission, neglect or default of that person's employee or agent, or of the employee of that person's agent.

[42B. Ins. Act A1625:s.9]

43 PART VII SAVINGS-43. Existing National Security Council.

(1) Any act done or action taken prior to the commencement of this Act by the existing National Security Council established by the Federal Government shall be deemed to have been done or taken under this Act and may accordingly be continued by the Council.

(2) Any directive, order or decision made by the existing National Security Council and in force immediately before the commencement of this Act shall, upon the commencement of this Act, so far as it is not inconsistent with this Act continue to remain in force until it is revoked by the Council.

44 PART VII SAVINGS-44. Existing committees.

All committees established under the existing National Security Council and in force immediately before the commencement of this Act shall, upon the commencement of this Act, continue to remain in force until dissolved by the Council.