14 March 2018
Apex courts okays Anwar’s bid to challenge NSC Act
The Federal Court today granted leave (permission) to former opposition leader Anwar Ibrahim to challenge the constitutionality of the controversial National Security Council (NSC) Act 2016.
This after Senior Federal Counsel Suzana Atan representing the government did not object to the questions for the apex court posed by Anwar’s lawyer led by former Federal Court judge Gopal Sri Ram and Latheefa Koya.
Today’s bench was led by Court of Appeal president Justice Zulkefli Ahmad Makinudin along with Chief Judge of Malaya Ahmad Ma’arop and Federal court judge Azahar Mohamed.
The two questions of law that are to be decided by the apex court are:
- whether the High court has jurisdiction to hear and determine an action 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 unconstitutional having regard to decisions in the Roman Archbishop vs Home Minister, the Negeri Sembilan state government vs Muhammad Juzaili (the LGBT) case, Mark Koding vs Public prosecutor, Yeoh Tat Thong vs Government’ and Ah Thian vs Government; and
- Whether the challenge on the constitutionality of an act of Parliament on the ground that it violates the basic structure doctrine is one that requires being brought to the Federal Court pursuant to Articles 4(3), 4(4) and Article 128 of the Federal Constitution?
The former opposition leader filed an originating summons in August 2016 seeking to declare the NSC Act 2016 as unconstitutional and wanted an injunction to prevent the NSC (above) from exercising its powers under the Act pending resolution.
Anwar had filed for a judicial review a day after the law came into force under Article 66(4A) of the Federal Constitution.
He also sought to have a 1993 constitutional amendment inserted in 1993 declared unconstitutional, which states that if the Yang di-Pertuan Agong does not assent to a bill within 30 days, it automatically becomes law.
Anwar’s application at the High Court to challenge the NSC Act was dismissed and on appeal at the Court of Appeal the High Court decision was upheld. This had resulted in today’s leave application to appeal to the Federal Court today.