High Court judges can hear constitutional disputes again, says ex-judge

PETALING JAYA: A retired judge says the Federal Court’s decision to send Anwar Ibrahim’s legal challenge over the National Security Council Act (NSC) 2016 to the High Court means High Court judges can now hear challenges to written laws on grounds that such legislation is unconstitutional.

According to Gopal Sri Ram, from 2014 until March this year, the legal position was that only the apex court could hear such challenges.

He said lawyers were required to go directly to the Federal Court and apply for leave to file a suit against the government, even in cases where the constitutionality of a statute was in question.

“Now, as long as litigants challenge the constitutionality of a law and not the authority of Parliament or a state legislature, they can go to the High Court,” he told FMT.

He added that starting a case in the High Court also restored the right of two appeals up to the Federal Court.

A five-member Federal Court bench led by Chief Justice Richard Malanjum on Tuesday sent back Anwar’s legal challenge to the NSC for the High Court to hear.

The bench reinstated Anwar’s originating summons after receiving no opposition to his appeal from senior federal counsel Mazlifah Ayob.

Sri Ram, who appeared for Anwar, said the decision also meant that the majority judgment in the Titular Roman Catholic Archbishop v Menteri Dalam Negeri case in 2014, better known as the “Allah case”, and the challenge brought by three transgenders in 2015 to declare a provision in the Negeri Sembilan Islamic criminal enactment as unconstitutional, were no longer good law.

In both cases, the apex court refused to make a ruling on grounds that the litigants had not brought their grievances straight to the Federal Court.

However, in March, Raus Sharif who was chief justice at the time led a five-member panel in a commercial dispute brought by landowner Gin Poh Holdings Sdn Bhd from Penang. The panel ruled that a simple challenge against the constitutionality of a written law can be heard by the High Court.

Sri Ram said the decision in the Gin Poh case also correctly interpreted the judgment of former lord president, the late Suffian Mohamed Hashim, in the 1976 case of Ah Tian vs Government of Malaysia.

Anwar’s originating summons to challenge the constitutionality of the NSC was struck out by the High Court in October 2016 on grounds that the court lacked the jurisdiction to hear the matter.

Anwar lost his appeal at the Court of Appeal on Nov 6 last year. In March, the Federal Court granted him leave to appeal against the decision.

In the suit filed on Aug 2, 2016, Anwar claimed that the implementation of the NSC Act was unconstitutional and void for two reasons.

Firstly, he said, it became law under Article 66 (4A) of the Federal Constitution.

He said the article was the product of 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.

“It effectively abolishes the need for royal assent. The amendments are unconstitutional because they violate the basic structure of the constitution,” he said.

Secondly, he said, the NSC Act was a security law and did not comply with Article 149 of the Federal Constitution. -FMT