PUTRAJAYA: The Federal Court in a majority 5-2 ruling today declined to answer legal and constitutional questions posed by Anwar Ibrahim with regards to the validity of the National Security Council Act.
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Federal Court judge Nallini Pathmanathan, who delivered the majority verdict, said the questions were abstract, academic and hypothetical.
“The applicant (Anwar) has not demonstrated that the NSC has interfered with his life,” Nallini said.
She said since there was no controversy, it is not a proper case for the bench to determine the questions of law.
“We therefore remit the matter to the High Court to be struck out,” she added.
Nallini said the Courts of Judicature Act (CJA) did not fundamentally change the Federal Court into a constitutional court.
“It is not a ‘carte blanche’ for all constitutional questions to be referred to and determined by the Federal Court in every case,” she added.
Others in the majority were Chief Judge of Malaya Azahar Mohamed, Federal Court judges Abang Iskandar Abang Hashim, Mohd Zawawi Salleh and Idrus Harun.
Chief Justice Tengku Maimun Tuan Mat and outgoing Chief Judge of Sabah and Sarawak David Wong Dak Wah were in the minority.
Both said NSC is unconstitutional as it was not enacted in accordance with the requirment of Article 149 of the Federal Constitution.
However, Tengku Maimun differed from Wong in stating that NSC did not violate the constitutional right to freedom of movement.
Wong said CJA constitutionlly obliged the apex court to answer the questions proposed by Anwar.
He said the removal of the royal assent in 1983, 1984 and 1994 did not violate the basic structure of the constitution.
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“Royal assent remain a part of the legislative process,” he added.
Tengku Maimun said she agreed with Wong that the courts could not take a wait-and-see approach because a void law remained void.
“Accordingly, it is my considered view that this reference is not abstract, academic or hypothetical,” she added.
She said allowing the legal challenge to be heard was in line with the rule of law.
“The present case is not an example of judicial supremacy but that of constitutional supremacy,” she added.
She said Anwar had the legal standing to bring the matter as it was a public interest case.
Anwar came to the court to seek a declaration that Section 12 of the Constitution (Amendment) Act 1983, Section 2 of the Constitution (Amendment) Act 1984, and Section 8 of the Constitution (Amendment) Act 1994 are null and void on grounds that they breach the basic structure of the Federal Constitution.
He sought a consequential declaration that the NSC Act is unconstitutional, null and void on grounds that it became law pursuant to an unconstitutional amendment, was not enacted in accordance with Article 149, and violates freedom of movement as guaranteed under Article 9 (2).
“Parliament should review NSC since there was a strong dissent from Tengku Maimun and Wong,” the PKR president told reporters later.
Lawyer J Leela, who appeared with Gopal Sri Ram, said the case would be mentioned before a judge at the High Court in Kuala Lumpur on Feb 18.
Federal counsel Alice Loke, from the civil division in the Attorney-General’s Chambers, appeared for the government. -FMT