Wednesday, October 28, 2020

Federal Court to rehear Anwar’s case on legality of NSC Act

Anwar Ibrahim claimed that a grave injustice had occurred following the court's earlier decision not to answer his constitutional questions.

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PKR president Anwar Ibrahim today succeeded in his application for a review of the Federal Court’s majority decision not to answer legal questions on the constitutionality of the National Security Council (NSA) Act 2016.

In a unanimous decision, a seven-member bench led by Federal Court judge Abdul Rahman Sebli allowed Anwar’s application to set aside the majority verdict on Feb 11 and ordered for the case to be reheard.

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

“However, after giving it the utmost consideration, we are of the view that 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 on the bench were Federal Court judges Zaleha Yusof, Zabariah Mohd Yusof, Hasnah Mohammed Hashim, Mary Lim Thiam Suan, Harmindar Singh Dhaliwal and Rhodzariah Bujang.

In his application filed in March, Anwar claimed that a 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 lawsuit in the High Court should be struck out without being heard.

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

Anwar, who is Port Dickson MP, also said the majority had decided based on an issue that was never raised by the government.

Federal Court judge Nallini Pathmanathan, who delivered the 5-2 majority verdict on Feb 11, said it was not shown that the NSC Act had interfered with Anwar’s personal life.

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

Besides Nallini, the other judges who made the majority decision were Chief Judge of Malaya Azahar Mohamed, Federal Court judge Mohd Zawawi Salleh, and then-Federal Court judges Abang Iskandar Abang Hashim (now chief judge of Sabah and Sarawak) and Idrus Harun (now attorney-general).

The minority decision by Chief Justice Tengku Maimun Tuan Mat and then-chief judge of Sabah and Sarawak David Wong Dak Wah (now retired) meanwhile held that the NSC Act was unconstitutional.

Earlier today, Anwar’s counsel Gopal Sri Ram said there had been a breach of natural justice in the case which entitled the court to set aside the majority decision.

“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 meanwhile submitted that Anwar had not made out any circumstances to allow a review of the 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 arrived at the decision based on their findings and the application of the law to the facts and circumstances of the case,” she said.

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