Federal Court to rehear legality of NSCA brought by Anwar

A seven-member bench led by Federal Court judge Datuk Abdul Rahman Sebli, in a unanimous decision, allowed Anwar’s review application to set aside the majority verdict on Feb 11.

The court, thus, ordered the case to be reheard at the Federal Court.

Justice Abdul Rahman said the court’s jurisdiction under Rule 137 of the Rules of the Federal Court 1995 was extremely limited and only exercised in very exceptional circumstances.

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

The other judges presiding on the bench were Federal Court judges Puan Sri Zaleha Yusof, Datuk Zabariah Mohd Yusof, Datuk Seri Hasnah Mohammed Hashim, Datuk Mary Lim Thiam Suan, Datuk Harmindar Singh Dhaliwal and Datuk Rhodzariah Bujang.

In the application filed on March this year, Anwar as the applicant claimed that grave injustice had occurred following the court's decision not to answer his constitutional questions.

He said the government, as a respondent in the case, had taken the position that his (Anwar's) lawsuit in the High Court should be struck out without being heard.

In the notice of motion, Anwar said there was also a serious breach of natural justice as he was not given the right to be heard on the issue of whether the constitutional questions posed were abstract, academic and hypothetical.

The Port Dickson Member of Parliament said the majority had decided based on an issue that was never raised by the government.

Anwar sought the Federal Court to set aside the majority verdict and he wanted the court to make an order deemed proper and just.

On Feb 11, the Federal Court in a 5-2 majority verdict declined to answer the constitutional questions raised by Anwar on the NSCA.

Federal Court judge Datuk Nallini Pathmanathan who delivered the majority decision held that it had not been shown that the existence of the NSCA had interfered with Anwar's personal life.

She ordered the case to be remitted to the High Court to be struck out.

Besides Justice Nallini, the other judges who decided the majority decision were Chief Judge of Malaya Tan Sri Azahar Mohamed, Federal Court judge Datuk Mohd Zawawi Salleh, and the then Federal Court judges Datuk Abang Iskandar Abang Hashim (now Chief Judge of Sabah and Sarawak) and Tan Sri Idrus Harun (now Attorney-General).

The minority decision by Chief Justice Tun Tengku Maimun Tuan Mat and the then Chief Judge of Sabah and Sarawak Tan Sri David Wong Dak Wah (now retired) held that the NSCA was unconstitutional.

Anwar had filed the originating summons in 2016 to challenge the constitutionality of the NSCA, claiming that its implementation was unconstitutional. He had named the National Security Council and government as defendants.

On March 14, last year, the Kuala Lumpur High Court allowed Anwar’s application under Section 84 of the Courts of Judicature Act 1964 to refer the matter to the Federal Court for determination of four constitutional questions.

Earlier, Anwar's counsel Datuk Seri Gopal Sri Ram submitted that there was a breach of natural justice in this case which entitled the court to set aside the majority decision by the Federal Court.

"The applicant (Anwar) ought to be heard on the issue of whether the constitutional questions are academic or a live issue which ought to be determined by this court," he said.

Senior federal counsel Suzana Atan submitted that the applicant had not made out any circumstances, which could be considered by this court to allow a review of the said decision under Rule 137 of the Rules of the Federal Court 1995.

"This review application is clearly without merit and ought to be dismissed with costs. Clearly, from the grounds of judgment, the majority had arrived at the said decision based on their findings and application of the law to the facts and circumstances of the case," she said.