Anwar files bid to overturn Federal Court ruling on NSC Act

PKR president Anwar Ibrahim has applied to quash a Federal Court’s refusal to look into legal questions on the constitutionality of the National Security Council Act (NSC) 2016.

This was revealed to the media today by a copy of the review application filed by law firm Chambers of Leela J at the Federal Court registry, Palace of Justice in Putrajaya, on March 13.

On Feb 11, the Federal Court declined to answer two legal questions posed by Anwar (photo) in his challenge over the constitutionality of the NSC Act, with the apex court ruling that the said questions were abstract, academic and hypothetical.

Under normal legal practice, an application to review a Federal Court ruling would be heard by another separate apex court bench.

According to a copy of the Notice of Motion seeking the review, Anwar seeks to set aside the Feb 11 apex court ruling per Rule 137 of the Rules of the Federal Court 1995 and/or in accordance to the inherent jurisdiction of the court, among others.

Among the brief grounds cited in the Notice of Motion was that the Federal Court ruling had caused him to suffer a serious breach of natural justice.

“There was a serious breach of natural justice as the applicant (Anwar) was not accorded the right to be heard on the issue of whether the constitutional questions posed were abstract, academic and hypothetical.

“The majority (of the Federal Court bench on Feb 11) came to a decision based on an issue never raised by the respondents (NSC and government of Malaysia).

“A grave injustice has been occasioned as, although the majority (of the apex court bench) declined to answer the constitutional questions, the respondents have taken the position that the Originating Summons (Anwar’s initial legal challenge against the validity of NSC Act) ought to be struck out without even being heard,” the cause papers said.

According to the Notice of Motion, former federal court judge and now lawyer, Gopal Sri Ram, will act for Anwar during the hearing of the review application.

On Feb 11, the seven-member Federal Court bench, in a 5-2 ruling delivered by Justice Nallini Pathmanathan, ruled that the two questions by Anwar were abstract, academic and hypothetical.

Anwar had sought the apex court to determine if:

• the NSC Act is unconstitutional, null and void and of no effect on grounds that it became a law pursuant to an unconstitutional amendment, was not enacted in accordance with Article 149 of the Federal Constitution, and it violates freedom of movement as guaranteed by Article 9(2) of the Federal Constitution; and,
• if specific constitutional amendments in 1983, 1984 and 1994 were unconstitutional, null and void, and of no effect on the ground they violate the basic structure of the Federal Constitution.

“The applicant (Anwar) has not demonstrated that the NSC has interfered with his life,” Nallini said when delivering the judgment.

She added that as there was no controversy, it was not a legitimate cause for the court to determine the arising questions of law.

As such, the case was remitted back to the High Court “to be struck out”.

Anwar, who is also Port Dickson MP, is seeking to invalidate the NSC Act in his bid to restore the power of the king on royal assent.

Anwar had filed the Originating Summons in 2016 to challenge the validity of the Act which came into force on Aug 1, that year, under Article 66(4A) of the Federal Constitution.

He is also seeking an injunction to prevent the NSC from exercising its powers under the law.

Anwar named the NSC and the government as the first and second respondents, respectively.

Aside from Nallini, the seven-member apex panel had also included Chief Judge of Malaya Azahar Mohamed, and Federal Court judges Abang Iskandar Abang Hashim, Mohd Zawawi Salleh and Idrus Harun in the majority ruling that declined to answer Anwar’s two constitutional questions.

Chief Justice Tengku Maimun Tuan Mat and then outgoing Chief Judge of Sabah and Sarawak David Wong Dak Wah had delivered dissenting judgments. - Mkini