Datuk Seri Anwar Ibrahim Kerajaan Malaysia & 1 Lagi

Datuk Seri Anwar Ibrahim Kerajaan Malaysia & 1 Lagi

The NSC Act 2016 is in pith and substance a national security/anti-subversion law and therefore ought to have been enacted pursuant to Article 149 of the Federal Constitution; because it was not so enacted the NSC Act 2016 is unconstitutional and void in its entirety; the Federal Court was obliged to hear the special case transmitted under ss84–85 CJA 1964 and the appellant had standing to bring the public interest constitutional challenge.

Citation
06(RS)-1-03/2019(W) (Mahkamah Persekutuan)
Parties
Appellant/plaintiff: Datuk Seri Anwar Ibrahim; Respondent/defendant: Government of Malaysia; Respondent/defendant: National Security Council
Court
RS
Jurisdiction
Malaysia
Judgment Date
11 February 2020
Case Number
06(RS)-1-03/2019(W) (Mahkamah Persekutuan)
Procedural Posture
Civil Constitutional Reference to Federal Court / Special Case Transmitted From High Court Pursuant to S84 CJA 1964 (case Stated)
Outcome
Reference answered in part: Court answers Question 2(ii) in the affirmative and declares the NSC Act 2016 unconstitutional and void for failure to be enacted under Article 149; basic structure query unnecessary; appellant has standing; Federal Court to remit appropriate matters to High Court.
Legal Topics
Article 149 Federal Constitution, NSC Act 2016 Validity, Basic Structure Doctrine, Jurisdiction of Federal Court on References (s84/s85 CJA 1964), Locus Standi and Public Interest Litigation, Presumption of Constitutionality, Freedom of Movement (article 9(2)
Source Language
Malay/English
Constitutional Law Administrative Law Statutory Interpretation Public Law National Security Law Article 149 Federal Constitution NSC Act 2016 Validity Basic Structure Doctrine +4 more

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Parties

Datuk Seri Anwar Ibrahim

Appellant/plaintiff

Government of Malaysia

Respondent/defendant

National Security Council

Respondent/defendant

Procedural Posture

Civil Constitutional Reference to Federal Court / Special Case Transmitted From High Court Pursuant to S84 CJA 1964 (case Stated)

Legal Issues

  1. 1 Whether amendments (Act A566, A584, A885) violated the basic structure of the Federal Constitution
  2. 2 Whether the NSC Act 2016 is unconstitutional because it was enacted pursuant to unconstitutional amendments
  3. 3 Whether the NSC Act 2016 should have been enacted under Article 149 and is therefore void

Ratio Decidendi

The NSC Act 2016 is in pith and substance a national security/anti-subversion law and therefore ought to have been enacted pursuant to Article 149 of the Federal Constitution; because it was not so enacted the NSC Act 2016 is unconstitutional and void in its entirety; the Federal Court was obliged to hear the special case transmitted under ss84–85 CJA 1964 and the appellant had standing to bring the public interest constitutional challenge.

Court Disposition

Reference answered in part: Court answers Question 2(ii) in the affirmative and declares the NSC Act 2016 unconstitutional and void for failure to be enacted under Article 149; basic structure query unnecessary; appellant has standing; Federal Court to remit appropriate matters to High Court.

Orders

  • Declare that the National Security Council Act 2016 is unconstitutional, null and void for not being enacted under Article 149 of the Federal Constitution
  • Answer Question 2(ii) (that the NSC Act 2016 was not enacted in accordance with Article 149) in the affirmative