Judges Zaleha Yusof, Zabariah Mohd Yusof, Hasnah Mohammed Hashim, Mary Lim and Rhodzariah Bujang were of the view that the legal questions posed by applicant Anwar Ibrahim were academic and hypothetical.
Holding the minority view, Judges Vernon Ong and Harmindar Singh Dhaliwal were of the opinion that the questions posed were relevant. They said the NSCA had not been enacted in accordance with Article 149 of the Federal Constitution and that it violated certain fundamental rights.
All seven judges were, however, unanimous that the NSCA did not offend the basic structure of the Constitution.
Ong, who chaired the bench, said the case would be remitted to the High Court in Kuala Lumpur for disposal in accordance with the majority judgment.
The High Court will also decide whether Anwar is to pay costs to the government, the respondent in the suit.
Anwar, who is Port Dickson MP, filed the action in August 2016 and by way of consent, it was referred to the Federal Court under Section 84 of the Courts of Judicature Act on grounds there were important questions of law to be determined.
Zaleha, who delivered the majority verdict, said the National Security Policy, among others, did not indicate that the NSCA is meant to be the law against subversion.
“It is meant to include protection and safety of people against situations of disasters like floods, earthquakes and other situations like the current Covid-19 pandemic,” she said.
Zaleha said Sections 18 and 22 of the NSCA did not run afoul of Clause (2) of Article 9 with regard to freedom of movement as it could be restricted on security, public order, public health or the punishment of offenders.
Ong, who delivered the dissenting judgment, said the NSCA was a security law containing sweeping powers which restricted fundamental liberties.
He said the judiciary is the third branch of government, independent of the executive and legislative branches.
“In the performance of this solemn duty, the courts have the power to determine and declare on the validity of any enactment. Any law found to be unconstitutional for being inconsistent with the Constitution is void and will be struck down,” he said.
In his action, Anwar sought 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 also sought a consequential declaration that the NSCA is unconstitutional, null and void on grounds that it became law pursuant to an unconstitutional amendment, and was not enacted in accordance with Article 149.
Senior federal counsels Suzana Atan and S Narkunavathy appeared for the National Security Council and the government, while Gopal Sri Ram and J Leela represented Anwar.