National Security Council (MKN) and Emergency Powers

When the Malaysian government needs to respond swiftly to a security threat, two distinct legal frameworks are often mentioned in the same breath: the National Security Council (MKN) and constitutional emergency powers. Both relate to national security, but they arise from different legal sources and carry different conditions. This article explains both neutrally and on the basis of the legal text.

What is the National Security Council?

The National Security Council was established under the National Security Council Act 2016 (Act 776). According to section 3 of the Act, the Council is “the central authority of the Government for considering matters concerning national security”.

Act 776 received royal assent on 18 February 2016 pursuant to Clause (4A) of Article 66 of the Federal Constitution, was gazetted on 7 June 2016, and came into force on 1 August 2016. Clause (4A) of Article 66 is the provision that turns a bill into law after 30 days even without an assent being signed — a feature that became one of the points of public discussion when the Act was drafted.

The functions of the Council are listed in section 4, among them formulating national security policies and strategic measures, monitoring the implementation of those policies, and advising on the declaration of security areas. Section 5 gives the Council the power to issue directions to any Government Entity in relation to matters of national security.

Who are the Council’s members and how does it operate?

Membership of the Council is set out in section 6:

Position	Role in the Council
Prime Minister	Chairman
Deputy Prime Minister	Deputy Chairman
Minister of Defence	Member
Minister of Home Affairs	Member
Minister of Communications and Multimedia	Member
Chief Secretary to the Government	Member
Chief of Defence Forces	Member
Inspector-General of Police	Member

The Council must meet at least once every three months (section 7), with a quorum of five (section 8). The Director General of National Security — appointed by the Prime Minister on the recommendation of the Chief Secretary to the Government (section 15) — acts as the Secretary of the Council (section 13).

How is a “security area” declared?

The main mechanism of Act 776 is the declaration of a security area under section 18. When the Council advises the Prime Minister that security in an area is “seriously disturbed or threatened”, the Prime Minister may, if he considers it necessary in the interest of national security, declare that area a security area in writing.

The duration conditions are clearly set out:

• The declaration ceases to be in force after six months from the date it takes effect (section 18(3)).
• It may be renewed by the Prime Minister for a period not exceeding six months at a time (section 18(4)).
• The declaration and its renewals must be gazetted and laid before Parliament; if both Houses pass a resolution to annul it, it ceases to have effect (section 18(6)).
• The Prime Minister may revoke the declaration at any time (section 18(7)).

Once a declaration is made, the Council may issue executive orders including deploying security forces (section 19), and appoint a Director of Operations who becomes the person managing operations within that area (section 20).

What are the special powers in a security area?

Part V of Act 776 grants the Director of Operations and the deployed security forces several special powers that apply only within a security area, among them:

• Arrest without warrant of any person suspected of committing an offence (section 25).
• Search and seizure without warrant of individuals, vehicles or premises (section 26).
• Curfew orders directing people to remain indoors at certain times (section 23) — with exemptions for the Yang di-Pertuan Agong, Rulers, Yang di-Pertua Negeri, and members of the security forces on duty.
• Excluding or removing persons from the area (section 22).
• Controlling movement and closing roads or waterways (section 24).
• Using reasonable and necessary force to preserve national security (section 34).

The Act also contains a provision allowing a Magistrate or coroner to dispense with an inquiry into death (inquest) in certain circumstances within a security area (section 35), as well as protection from legal action for acts done “in good faith” (section 38). An offence of breaching a curfew order may be punished with a fine not exceeding RM5,000 or imprisonment not exceeding three years, or both (section 23(3)).

How does the MKN Act differ from an Article 150 emergency?

The MKN’s powers are not the same as a constitutional emergency under Article 150 of the Federal Constitution. The main differences:

Under Article 150(1), if the Yang di-Pertuan Agong is satisfied that “a grave emergency exists whereby the security, or the economic life, or public order” is threatened, He may issue a Proclamation of Emergency. While an emergency is in force, the Yang di-Pertuan Agong may promulgate ordinances having the same force and effect as an Act of Parliament (Article 150(2B)). Such ordinances must be laid before Parliament and may be annulled (Article 150(3)).

By contrast, Act 776 allows the declaration of a security area without requiring a Proclamation of Emergency by the Yang di-Pertuan Agong — it is triggered by a decision of the Prime Minister on the advice of the Council. It is precisely this difference that became one of the sources of public debate about the Act.

The most recent example of the use of Article 150 is the Proclamation of Emergency on 12 January 2021 by the Yang di-Pertuan Agong to curb the COVID-19 pandemic, which among other things caused Parliament and the State Legislative Assemblies not to convene, and remained in force until 1 August 2021 (as reported in the Rahmat Lim & Partners commentary referenced in the list of sources).

What are the differing views on this law?

This issue involves differing views, and this article presents both sides factually.

The government’s rationale: When Act 776 was drafted, the government of the day linked it to the threat of cross-border terrorism, including an attack attributed to an Islamic State-linked group in Malaysia in June 2016 (reported in the ISEAS–Yusof Ishak Institute commentary). According to the same commentary, the Prime Minister at the time, Najib Razak, was reported to have stated that the government would not apologise for prioritising the safety of Malaysians. (The original statement was made in English; the sentence here is a paraphrased translation, not a direct quote.)

Critics’ concerns: Several civil society and human rights organisations — including Human Rights Watch and local groups — raised concerns that the Act gives broad powers to the Prime Minister, allows search and arrest without warrant, grants legal immunity for acts done “in good faith”, and permits the waiver of inquests for deaths within a security area. They also raised questions about the balance between national security and civil liberties.

Both of these views remain part of the public debate about the balance between security and liberty in Malaysia.

What’s next

To understand the framework of Malaysia’s national security powers more fully, the official texts should be consulted directly: the National Security Council Act 2016 (Act 776) and Article 150 of the Federal Constitution. This draft is descriptive and has not yet been reviewed by a human; it requires editorial review before publication, particularly because this topic is sensitive and involves differing views.