The NSCA 2016 is unconstitutional as it was enacted without authority under art 149, violating the fundamental rights enshrined in the Constitution.

Zaleha Yusof FCJ (Majority):

Introduction

[1] By consent and by order of the High Court dated 14 March 2019, this special case was referred to this Court pursuant to s 84 of the Courts of Judicature Act 1964 (CJA) for the following constitutional questions to be determined by this Court; so that the appellant's Originating Summons (OS) may be continued and disposed of by the High Court in accordance with the judgment of this Court:

(1) Whether s 12 of the Constitution (Amendment) Act 1983 (Act A566), s 2 of the Constitution (Amendment) Act 1984 (Act A584) and s 8 of the Constitution (Amendment) Act 1994 (Act A885) (cumulatively referred to as "the amending Acts") are unconstitutional, null and void and of no effect on the ground that they violate the basic structure of the Federal Constitution (FC); and

(2) Whether the National Security Council Act 2016 ( NSCA ) is unconstitutional, null and void and of no effect on the following grounds:

(i) it became law pursuant to unconstitutional amendments;

(ii) it was not enacted in accordance with art 149 of the FC; and

(iii) it violates the freedom of movement guaranteed by art 9 Clause (2) of the FC.

[2] Section 85 of the CJA provides that the Federal Court shall deal with and determine the special case in the same way as an appeal to the Federal Court. As far as the appellant's special case is concerned, this is the second time this special case is heard before this Court. The original panel which heard the special case had, by a majority decision on 11 February 2020, declined to answer the constitutional questions as referred on the ground that they are abstract, academic and purely hypothetical. See: Datuk Seri Anwar Ibrahim v. Government of Malaysia & Anor, 2020 MarsdenLR 1517 (DSAI 1).

[3] However, on an application for a review made by the appellant pursuant to r 137 of the Rules of the Federal 1995, this Court had on 10 September 2020 allowed the appellant's application and set aside the original panel's decision delivered on 11 February 2020. Hence, the rehearing of the special case before us.

[4] Before I proceed to discuss the constitutional questions, I must make certain observations. The review application by the appellant which was allowed by this Court was based on the appellant's contention that there was a breach of natural justice as the appellant had no notice and was not accorded the opportunity to submit on the issue of whether the constitutional questions were abstract, academic and hypothetical before the decision was pronounced. The issue was never raised by the respondent in either its written or oral submissions; neither did the Court put the issue to the parties at the hearing of the special case. This, according to the appellant, had resulted in a breach of natural justice which had also occasioned a grave injustice against him warranting a review intervention by this Court. Except for my learned brother Vernon Ong FCJ, the rest of us in the present panel sat in that panel hearing the review. After hearing arguments, this Court was persuaded that a case of breach of natural justice had been made out and that the appellant would be left without any remedy if the review was not allowed. This Court found that this particular issue of the constitutional questions being abstract, academic and hypothetical merited at least full and serious arguments with the benefit of submissions by both parties. (See: Datuk Seri Anwar Ibrahim v. Government of Malaysia & Anor, 2020 MarsdenLR 669 (DSAI 2)).

[5] At the hearing of the review application, the appellant had also urged this Court to allow the review application so as to give him the opportunity to argue on the academic issue at the rehearing of the special case. As stated above, this Court had allowed the review application for that reason alone. In his written submissions filed on the rehearing of the special case before us, the appellant had put up his argument as to why the constitutional questions were not aca