Wednesday, September 23

Federal Court declines to answer questions on constitutionality of NSCA


PUTRAJAYA: The Federal Court here today declined to answer the constitutional questions referred by Port Dickson Member of Parliament on the constitutionality of the National Security Council Act 2016 (NSCA).

The seven-member bench, in a majority 5-2 decision, held that it was not a proper case for the Federal Court to answer the constitutional questions as the questions referred were abstract and purely academic.

Federal Court judge Datuk Nallini Pathmanathan who delivered the majority decision, ordered the case to be remitted back to the High Court to be struck out.

Justice Nallini said it has not been demonstrated that Anwar’s case falls within the exceptional category.

“It has not been shown that the very existence of the NSCA in the statute books interferes with the conduct of the plaintiff’s (Anwar) personal life or that of any other person,” she said.

Justice Nallini said the only fact stated in Anwar’s originating summons and affidavit in support was that he was imprisoned at the time of the action and that he brought the action as a citizen of Malaysia.

She said the contents of the affidavit were purely legal in nature, relating to the amendment to Article 66(4) of the Federal Constitution, the enactment of the NSCA and the alleged inconsistency with the provisions and basic structure of the Federal Constitution.

“The plaintiff (Anwar) did not assert that his rights have been affected by the amending provisions or the NSCA,” she said.

Chief Justice Tan Sri Tengku Maimun Tuan Mat who chaired the bench then set Feb 18 for mention of the case at the High Court.

Anwar had filed the originating summons in 2016 to challenge the constitutionality of the NSCA, claiming that its implementation was unconstitutional. He had named the National Security Council and government as defendants.

On March 14 last year, the Kuala Lumpur High Court allowed Anwar’s application under Section 84 of the Courts of Judicature Act 1964 to refer the matter to the Federal Court for determination of four constitutional questions.

Meanwhile, Justice Tengku Maimun said the constitutional reference filed by Anwar was not abstract, academic of hypothetical, adding that the case was a public interest litigation brought with the view of vindicating the Rule of Law.

She said Anwar was clothed with the locus to mount that challenge as he brought the action as a public-spirited citizen because the NSCA potentially affected him just as it affected any other person in the country.

Justice Tengku Maimun said NSCA, in pith and substance, is a security law, ought to have been enacted in accordance with Article 149 of the Federal Constitution, adding that the fact it was not so enacted means it was in breach of Article 149, rendering the whole Act unconstitutional.

Justice Wong, in his decision, said the matter should be remitted back to the High Court to make the appropriate orders and grant the necessary relief.

He said the Federal Court was obligated to answer the constitutional issues posed.

Justice Wong said the NSCA was a disproportionate intrusion on the right to freedom of movement guaranteed by Article 9(2) of the Federal Constitution and the Act is unconstitutional.

Meanwhile, Anwar who was present at the court proceedings told reporters that Parliament should review the NSCA since there was a strong dissent by Justice Tengku Maimun and Justice Wong.

Lawyer J. Leela represented Anwar while senior federal counsel Alice Loke Yee Ching appeared for the government. – Bernama