Datuk Seri Anwar Ibrahim 1. Kerajaan Malaysia 2. Majlis Keselamatan Negara

Datuk Seri Anwar Ibrahim 1. Kerajaan Malaysia 2. Majlis Keselamatan Negara

The amendment Acts A566, A584 and A885 are constitutional because they did not remove a substantive royal discretion and merely provided procedural certainty for assent; however the NSCA 2016, on its pith and substance, is a national security statute with emergency‑like special powers that abridge arts 5, 9, 10 and 13 and therefore falls within the class of legislation that must be enacted under Article 149; because it was enacted as ordinary legislation and not under Article 149 it is inconsistent with the Federal Constitution and void under Article 4(1).

Citation
No: 06(RS)-1-03/2019(W) (Mahkamah Persekutuan)
Parties
Appellant: Datuk Seri Anwar Ibrahim; Respondent: Kerajaan Malaysia; Respondent: Majlis Keselamatan Negara
Court
RS
Jurisdiction
Malaysia
Judgment Date
6 August 2021
Case Number
No: 06(RS)-1-03/2019(W) (Mahkamah Persekutuan)
Procedural Posture
Special Case / Constitutional Challenge / Rehearing in Federal Court on Special Case Transmitted Under S 84 Courts of Judicature Act 1964; Determined Pursuant to S 85 CJA 1964
Outcome
Appeal allowed in part; Acts A566, A584 and A885 upheld; National Security Council Act 2016 declared unconstitutional and void for failure to be enacted under Article 149; matter remitted to High Court for disposal; no order as to costs.
Legal Topics
Basic Structure Doctrine, Royal Assent, Emergency Powers, Article 149 FC, Freedom of Movement (art 9(2)), Proportionality, Legislative Procedure, Nullity of Statutes
Source Language
Malay/English
Constitutional Law Administrative Law Human Rights Law National Security Law Statutory Interpretation Basic Structure Doctrine Royal Assent Emergency Powers +5 more

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Parties

Datuk Seri Anwar Ibrahim

Appellant

Kerajaan Malaysia

Respondent

Majlis Keselamatan Negara

Respondent

Procedural Posture

Special Case / Constitutional Challenge / Rehearing in Federal Court on Special Case Transmitted Under S 84 Courts of Judicature Act 1964; Determined Pursuant to S 85 CJA 1964

Legal Issues

  1. 1 Whether constitutional amendment Acts A566, A584 and A885 violate the basic structure by removing/altering royal assent
  2. 2 Whether National Security Council Act 2016 (NSCA 2016) is unconstitutional because enacted pursuant to unconstitutional amendments
  3. 3 Whether NSCA 2016 should have been enacted under Article 149 and thus validly restrict arts 5,9,10,13

Ratio Decidendi

The amendment Acts A566, A584 and A885 are constitutional because they did not remove a substantive royal discretion and merely provided procedural certainty for assent; however the NSCA 2016, on its pith and substance, is a national security statute with emergency‑like special powers that abridge arts 5, 9, 10 and 13 and therefore falls within the class of legislation that must be enacted under Article 149; because it was enacted as ordinary legislation and not under Article 149 it is inconsistent with the Federal Constitution and void under Article 4(1).

Court Disposition

Appeal allowed in part; Acts A566, A584 and A885 upheld; National Security Council Act 2016 declared unconstitutional and void for failure to be enacted under Article 149; matter remitted to High Court for disposal; no order as to costs.

Orders

  • Allow appeal in part
  • Declare Sections introduced by Acts A566, A584 and A885 constitutional