Under Section 18 of the National Security Council Act 2016 (Act 776), the prime minister is empowered to (“may”) declare any area as a security area if, after receiving the advice of the National Security Council, he considers it necessary to do so in the interest of national security.
That “advice” to the prime minister by the council must state that the security in a particular area in this country has been “seriously disturbed or threatened” by any “person, matter or thing” which causes or is likely to cause “serious harm” to the people, or territories, economy, national key infrastructure or “any other interest of Malaysia”, and that such a situation “requires immediate national response”.
The three essential elements are:
SERIOUS disturbance or threat;
CAUSING or likely to cause serious harm; and,
REQUIRING immediate response.
A declaration made under Section 18 lasts for six months but may be renewed by the prime minister from time to time for such period not exceeding six months at a time.
The declaration (and the renewal, if any) must be published in the Gazette and laid before Parliament “as soon as possible” after it has been made. The declaration will cease to have any effect if a resolution is passed by both the Dewan Rakyat and Dewan Negara annulling the declaration. Alternatively, at any time it is still in force, the prime minister can revoke it.
After a declaration has been gazetted and is still in force, Section 30 empowers the director of operations (and any other person authorised by the director) to take temporary possession of privately-owned land and buildings (as well as movable property) located in that area.
To justify that temporary taking, it must appear to the director that it is “necessary or expedient to do so in the interest of national security”.
To ensure that the taking is accomplished without difficulty, the director can seek the assistance of “any member of the security forces”. The term “security forces” has been defined in Section 3 to include, inter alia, the Royal Malaysian Police, the armed forces and the Malaysian Maritime Enforcement Agency.
After taking possession of the property, the director of operations can use it for such purpose and in such a manner as he thinks expedient in the “interest of national security”, notwithstanding any restriction imposed on the use of such land or property — Section 30(3).
For example, the property taken can be a house (residential use) but he may use it for a different purpose, such as to store weapons or equipment.
What can a dispossessed owner do after his property has been taken away from him without his consent?
Section 30 (6) states that as an aggrieved person, he can (within 14 days after he has been dispossessed), “give notice of his objection” to an Advisory Committee, whose members are appointed by the director-general of national security.
Upon receiving the note of objection from the dispossessed owner, the chairman of the Advisory Committee shall inform the director of operations — Section 30(8).
The Advisory Committee shall then consider the objections by the dispossessed owner, as well as the representations made by the director of operations. At the end of deliberations, the committee shall make recommendations to the director-general of national security.
Nothing is mentioned specifically about an oral hearing or a formal enquiry. After considering these recommendations, the director-general shall “give such directions as he thinks fit” — Section 30(10).
Section 30 (11) states that if a private property in any security area has been taken over by the director of operations under Section 30(1) or the director-general has given his directions under Section 30(10), then “compensation shall be paid to the aggrieved person”.
With regard to the amount of compensation that an aggrieved owner can expect to receive, Section 32 states that it “shall be assessed by the director-general”. No further details are mentioned as to how the assessment of compensation shall be made, unlike the manner of working out the compensation for compulsory acquisition of land under the Land Acquisition Act 1960 (Act 486).
On Aug 1 this year, a subsidiary law known as the National Security Council (Taking Temporary Possession (Land, Building or Movable Property), Demand for Use of Resources and Destruction of Building or Structure) Regulations 2016, (P.U.(A) 211) came into force. The regulations must be read together with Act 776.
The new regulations state that if the director of operations intends to take temporary possession of a private property in a security area, he must serve Form 1 on the owner or occupier of the land or building, or owner of movable property (as the case may be). If the director is satisfied that the taking is no longer necessary, he must serve Form 2.
Any owner aggrieved by the taking may object by submitting Form 3 to the Advisory Committee. Any compensation assessed by the director-general of national security must be paid to the aggrieved person within 12 months from the date of notice of taking possession of the private property.
Property rights are always “sensitive matters” to owners in this country because these rights are protected and guaranteed under Article 13 of the Federal Constitution, which states that no private property shall be compulsorily acquired or used save under law, and such law must provide adequate compensation. What is “adequate” compensation is spelt out in the First Schedule of the Land Acquisition Act 1960 (Act 486), whilst the permitted purposes of such acquisition are spelt out in Section 3(1) (a), (b), (c) and (d) of that act.
Whilst the principal focus of Act 486 is on the purposes set out in the aforesaid Section 3(1), the act also contains provisions relating to taking temporary occupation of use or land (see Part VII, Sections 57 to 61). These provisions have recently been revamped under the Land Acquisition (Amendment) Act 2016 to ensure that landowners, whose property have been temporarily taken or used by the authorities, are treated fairly and given adequate compensation when their properties are later returned or restored to them.
Whilst obviously the background circumstances are different when it comes to private properties being taken temporarily by the director of operations under Section 30 of Act 776 (as compared with private properties taken temporarily by the land administrator under Section 57 of Act 486), there will definitely be a tendency on the part of the dispossessed landowners (and their lawyers) to look to the latter legislation with an eye on getting a larger compensation at the end.
A colleague asked me recently, “If a private property located within a security area is taken temporarily by the authorities under Act 776, is the dispossessed owner precluded from invoking Part VII of Act 486?”
I replied, “That seems to be the general intention”.
With the principal act and the subsidiary legislation in place, I reckon the authorities are fine-tuning the standard operating procedures for taking private properties in a security area, if such a situation should arise in the future.
Salleh Buang formerly served the
Attorney-General’s Chambers before he left for private practice, the corporate sector and then the academia