Anwar’s application to rehear legality of NSC Act allowed

Anwar Ibrahim is seeking a declaration that the NSC Act is unconstitutional, null and void.

PUTRAJAYA: The Federal Court will rehear a legal and constitutional challenge posed by Anwar Ibrahim with regard to the validity of the National Security Council (NSC) Act.

This follows a unanimous ruling by a seven-member bench today to allow a review by the parliamentary opposition leader to set aside a Feb 11 ruling.

Bench chairman Abdul Rahman Sebli said a review under Rule 137 of the Federal Court Rules 1995 was only allowed under exceptional circumstances.

“However, after giving utmost consideration, we are of the view that this is a fit and proper case for the court to exercise its discretion in favour of the applicant (Anwar),” he said.

He said the Feb 11 majority and minority rulings were now set aside and a rehearing ordered.

Others on the bench were Zaleha Yusof, Zabariah Mohd Yusof, Hasnah Mohammed Hashim, Mary Lim Thiam Suan, Harmindar Singh Dhaliwal and Rhodzariah Bujang.

On April 7, Anwar filed a motion to review the Federal Court majority ruling which refused to provide answers to his challenge on the validity of the NSC Act.

The PKR president said there was a serious breach of natural justice as he was not accorded the right to be heard on the issue of whether the constitutional questions posed were abstract, academic and hypothetical.

Anwar said the majority came to a decision based on an issue never raised by the government in its submission.

He said a grave injustice had been done and the government had taken the position to strike out his suit before the High Court.

Lawyer Gopal Sri Ram today said the declaration sought by Anwar was not futile.

“The NSC Act is still in the books and can be applied at any time to Anwar and the general public,” said Sri Ram, who was assisted by J Leela.

Senior federal counsel Suzana Atan said the majority arrived at its ruling based on the findings and application of the law to the facts and circumstances of the case.

“This case is now before the High Court, which will hear whether Anwar’s suit should be struck out. Both parties will have the opportunity to canvas the academic issue before the judge,” said Suzana, who was assisted by senior federal counsel M Kogilambigai.

The Federal Court, in a majority 5-2 ruling, declined to answer the questions posed by Anwar, citing that he had not demonstrated that the NSC had interfered with his life.

Judge Nallini Pathmanathan, who delivered the majority verdict, ordered the case to be remitted to the High Court for deliberation.

Others in the majority were Chief Judge of Malaya Azahar Mohamed and Federal Court judges Abang Iskandar Abang Hashim, Mohd Zawawi Salleh and Idrus Harun.

Chief Justice Tengku Maimun Tuan Mat and then chief judge of Sabah and Sarawak David Wong Dak Wah were in the minority.

Both said the NSC was unconstitutional as it was not enacted in accordance with the requirements of Article 149 of the Federal Constitution.

Anwar is seeking 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 is seeking 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). - FMT