National Security Council is valid: Federal Court

 

The Federal Court today affirmed the legality of the National Security Council (NSC).

In a split 5-2 decision, the apex bench today through the majority decision answered in the negative several legal questions linked to the constitutionality of the National Security Council Act 2016.

The majority decision was delivered by bench member Federal Court judge Zaleha Yusof, on behalf of the other members that comprise the majority finding, namely Zabariah Mohd Yusof, Hasnah Mohammed Hashim, Mary Lim Thiam Suan, and Rhodzariah Bujang.

The dissenting ruling was delivered by the bench’s chairperson Federal Court judge Vernon Ong Lam Kiat, on behalf of the other bench member that constitutes the dissenting ruling, namely Harmindar Singh Dhaliwal.

On Feb 11 last year, the Federal Court refused to look into opposition leader Anwar Ibrahim’s application for it to look into the constitutionality of the NSC Act.

However later on Sept 10 last year, the apex court allowed Anwar’s revision application to quash the earlier refusal, and for it to revisit the matter.

Among the legal questions that Port Dickson MP Anwar wanted the Federal Court to consider are:

1) Whether 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 (Legal Question 2);

2) Whether specific constitutional amendments in 1983, 1984 and 1994 are unconstitutional, null and void, and of no effect on the ground they violate the basic structure of the Federal Constitution.

The PKR president is seeking to invalidate the NSC Act in his bid to restore the power of the king on royal assent.

Initially, at the Kuala Lumpur High Court in 2016, Anwar had filed the originating summons to challenge the constitutionality 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 government as the first and second defendants, respectively.

Through Legal Question 1, he contended that the NSC Act is invalid as the various constitutional amendments were done without receiving the assent of the Yang di-Pertuan Agong.

In reading out the majority judgment today, Zaleha answered Legal Question 1 in the negative.

She explained that while the Agong is the Supreme Head of the Federation via Article 32 of the Federal Constitution, but Articles 39 and 40 still require His Majesty to act in accordance with the advice of the cabinet or any minister authorised by the cabinet, except for matters under His Majesty’s discretion per Article 40(2).

“It is our view that the royal assent is never part of the executive act of the YDPA (Agong). It is the final step of the legislative process before a bill becomes law. The provision on royal assent is specifically housed under Chapter 5 of Part IV of the FC under the heading of “Legislative Procedure”.

“This chapter on legislative procedure explains the process and steps taken by the legislature in enacting laws. So it is part of a legislative act.

“The amending Acts do not at all serve to remove royal assent, as a bill must still be presented to the YDPA under Clause (4) of Article 66 of the FC for the purpose of royal assent.

“The amending Acts only sought to clarify and define the procedure involving the YDPA in the lawmaking process; to expedite the passing of laws, a process which is part and parcel of the responsibilities of any democratically elected legislature.

“Hence, our answer to the first question is negative. The amending Acts are not unconstitutional. Consequently the challenge on the constitutionality of the NSCA on the ground that it became law pursuant to unconstitutional amendments, also fails,” she said.

In relation to Legal Question 2, Zaleha said that the answer is also negative as the NSC Act need not be enacted through Article 149 of the Federal Constitution, because Article 149 is restricted to activities of persons while the NSC Act has a much wider scope.

Article 149 deals with enactment of legislation to combat subversion and action prejudicial to public order.

Section 4 of the NSC Act states that the NSC’s function is to “formulate policies and strategic measures on national security including sovereignty, territorial integrity, defence, socio-political stability, economic stability, strategic resources, national unity and other interests relating to national security”.

“Article 149 of the FC directs attention and focus on activities of persons. That is its restriction. Whereas the NSCA (NSC Act) is much wider than that as it is also meant to cover other matters such as disasters and infectious diseases which definitely and undeniably affect national security. Hence, the NSCA can never be meant to be enacted under Article 149 of the FC,” she said.

She noted that matters of security involve policy considerations which are within the domain of the executive branch of government, and that the courts should not intervene in matters of national security and public order and should be hesitant in doing so.

However, through the dissenting ruling today, Ong said that the NSC Act was invalid as it is actually a law dealing with national security and public order that can potentially affect a person’s fundamental rights to liberty; freedom of movement; freedom of speech, assembly and association; and property.

Under the Federal Constitution, these four fundamental rights are enshrined under Articles 5, 9, 10 and 13 respectively.

Ong pointed out that during the reading of the NSC Bill in Parliament, the minister had assured that there was no need to include a recital under Article 149 as he claimed the bill would not infringe the fundamental liberties under those four provisions.

“However, the minister’s statement that the NSCA 2016 will not impinge on the four fundamental liberties was not an accurate representation of the true nature and character of the NSCA 2016. I say this for two reasons. First, there are clear provisions in the NSCA 2016 which contravene the fundamental rights under arts 5, 9, 10 and 13.

“Second, the minister contradicted himself in a later part of his speech in the Dewan Negara when he said that the freedom of movement in a security area would be restricted,” Ong said.

Following today’s Federal Court ruling, Anwar’s legal matter would be remitted back to the Kuala Lumpur High Court, in order to be disposed of in accordance with the apex court decision.

Anwar was represented by former federal court judge Gopal Sri Ram, who was assisted by counsel J Leela and Marcus Lee.

The government was represented by senior federal counsel Suzana Atan and S Narkunavathy. - Mkini