9-member Federal Court bench to decide if NSC Act unconstitutional

The Federal Court says constitutional issues that have wide implications will be raised in the case.

PETALING JAYA: A nine-member Federal Court bench will decide whether the National Security Council (NSC) Act is unconstitutional, a lawyer appearing for PKR president Anwar Ibrahim said.

“The apex court registry has agreed to a larger bench as constitutional issues that have wide implications will be raised,” J Leela said.

She said the hearing has been fixed for July 12 and parties have been instructed to file their written submissions by June 28.

On March 14, High Court judge Nordin Hassan allowed Anwar’s application under Section 84 of the Courts of Judicature Act to refer the matter to the Federal Court.

The first legal question is whether 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 and have no effect on grounds that they breach the basic structure of the Federal Constitution.

The second is whether 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).

Anwar, who was behind bars for a sodomy conviction at the time, filed the suit on Aug 2, 2016, claiming 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,” Anwar said.

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

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

The legal position then was that only the apex court could hear such challenges.

Anwar lost his appeal at the Court of Appeal in November, 2017. In March last year, the Federal Court granted him leave to appeal against the decision.

But during the same month, the Federal Court ruled that High Court judges could hear constitutional issues.

This resulted in Anwar’s case being sent back for hearing before Nordin.