Judge Harmindar Singh Dhaliwal said the judiciary is the constitutionally appointed guardian of the rule of law and the public guarantor of justice.
“This is an awesome duty, a formidable undertaking and, as many would expect, requiring the highest attributes,” he said in a 51-page written judgment allowing opposition leader Anwar Ibrahim’s application to rehear his appeal on the constitutionality of the National Security Council (NSC) Act.
Harmindar said that being unelected, unlike the members of the legislative, judges did not enjoy the legitimacy of popular election.
He said public support and confidence was critical for the proper and effective functioning of the administration of justice.
“We are not unmindful that the public do not expect that all judicial decisions are made with infinite wisdom. Given the limitation of human fragility, imperfection and operating within the adversarial system, it is expected that errors are inevitable,” he said.
He said when plain errors had led to grave and manifest injustice, any rectification would enhance public confidence rather than diminish them in breach of the finality principle.
On Sept 10 last year, a seven-member apex court bench led by Abdul Rahman Sebli unanimously allowed Anwar’s review on grounds that there was a serious breach of natural justice as he was not accorded the right to be heard on the issue of whether the constitutional questions he posed were abstract, academic and hypothetical.
Judge Zaleha Yusof, Zabariah Mohd Yusof, Hasnah Mohammed Hashim, Mary Lim Thiam Suan, and Rhodzariah Bujang were the other judges, apart from Rahman and Harmindar.
In filing a motion to review a Federal Court majority ruling on Feb 11 last year, Anwar had said that the 5-2 judgment was based on an issue never raised by the government in its submission.
Anwar is 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 null and void on grounds that they breach the basic structure of the constitution.
He is seeking a consequential declaration that the NSC Act is unconstitutional, null and void on grounds that it became law pursuant to an unconstitutional amendment, was not enacted in accordance with Article 149, and violates freedom of movement as guaranteed under Article 9(2).
A bench of seven judges reheard Anwar’s appeal on Jan 7 this year and has reserved judgment.