Following the apex court’s decision in Titular Roman Catholic Archbishop v Menteri Dalam Negeri, better known as the “Allah” case in 2014, High Courts took the position that only the Federal Court could hear such challenges.
Before this, High Courts regularly used to decide the competency of the federal and state legislatures to pass laws.
Lawyer Gopal Sri Ram said the apex court today paved the way to revisit the legal proposition in the Allah case when it allowed Anwar’s leave application without contest.
The jailed opposition leader wants to challenge the legality of the National Security Council (NSC) Act as royal assent was not obtained.
The legal questions approved 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 in view of the ruling in the Allah case; and,
- whether a challenge to the constitutionality of an Act of Parliament, on the grounds that it violates the basic structure doctrine, is one that requires it to be brought to the Federal Court, pursuant to Articles 4(3), 4(4) and Article 128 of the Federal Constitution.
Judges Zulkefli Ahmad Makinudin, Ahmad Maarop and Azahar Mohamed today allowed the leave application after government lawyer Suzana Atan told the bench it was not opposing the questions.
On Aug 2, 2016, Anwar had filed a suit to defer the implementation of the NSC Act on the grounds that it was unconstitutional.
Two months later, Justice Hanipah Farikullah threw out the case as she held the High Court lacked jurisdiction to hear the matter.
A three-man Court of Appeal bench, chaired by Rohana Yusuf, in October last year, said Anwar should have gone straight to the Federal Court as he was challenging the competency of Parliament to pass the law.
The ruling also affirmed the decision of the Kuala Lumpur High Court.
Anwar is claiming the NSC Act was unconstitutional for two reasons.
One, he said it became law under Article 66(4A) of the Federal Constitution.
He said the Article was the product of 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.
“It effectively abolishes the need for royal assent. The amendments are unconstitutional because they violate the basic structure of the Constitution,” he said.
Secondly, he said the NSC Act was a security law and did not comply with Article 149.
The government took the position in the Court of Appeal that Anwar should have filed his matter under Article 4(3) of the Constitution and should have first obtained leave from the apex court for the merit of his case to be heard.
Anwar’s legal challenge on National Security Council Act dismissed