The National Security Council Act 2016 is unconstitutional as it was enacted in violation of the constitutional provisions, lacking the required recitals under Article 149 and infringing individual rights.

Nallini Pathmanathan FCJ (Majority):

Introduction

[1] This is a special case referred to the Federal Court from the High Court pursuant to s 84 of the Courts of Judicature Act ("CJA").

[2] My learned brothers Azahar Mohamed CJM and Zawawi Salleh, Abang Iskandar Abang Hashim, Idrus Harun FCJJ have read this judgment in draft and expressed their agreement for it to be the majority judgment of the Court.

Background

[3] The parties will be referred to as they were in the High Court. The plaintiff filed an Originating Summons in the High Court seeking the following reliefs:

(i) A declaration that s 12 of the Constitution (Amendment) Act 1983, s 2 of the Constitution (Amendment) Act 1984, and s 8 of the Constitution (Amendment) Act 1994 ("the Amending Provisions") are unconstitutional, null and void, and of no effect;

(ii) A consequential declaration that arts 66(4) and (4A) of the Federal Constitution ("FC") are unconstitutional;

(iii) A declaration that the National Security Council Act 2016 ("NSCA") is unconstitutional; and

(iv) An injunction to restrain the National Security Council from taking any steps or acting on the NSCA.

[4] At the High Court, the parties agreed for constitutional questions to be referred to the Federal Court for determination under s 84 of the CJA. On 14 March 2019, the learned High Court Judge referred the following two constitutional questions to this Court by way of a special case pursuant to s 84 of the CJA:

(i) Whether the Amending Provisions are unconstitutional, null and void and of no effect on the ground that they violate the basic structure of the FC; and

(ii) Whether the NSCA is unconstitutional, null and void and of no effect on the following grounds:

(a) It became law pursuant to unconstitutional amendments;

(b) It was not enacted in accordance with art 149 of the FC; and

(c) It violates the freedom of movement guaranteed by art 9(2) of the FC.

[5] This case calls for a proper understanding of the role of the Federal Court in our constitutional framework. While a comprehensive study on models of constitutional adjudication is beyond the scope of this judgment, it is necessary to begin with a basic understanding of the system adopted in Malaysia.

Models Of Constitutional Review Of Legislation

[6] The forms of constitutional review of legislation can be broadly classified into two main models: the continental European model of review by a specialised constitutional Court, and the American or common law model of review by ordinary courts.

[7] In the European model, influenced by the jurisprudence of Hans Kelsen, constitutional review of the validity of legislation is generally:

(i) Centralised, in that the review is conducted only by a specialised constitutional Court; and

(ii) Abstract, in that the constitutionality of a law is reviewed in the abstract without reference to a factual context. The review is usually conducted principaliter, ie in an action where the principal or only issue is the constitutionality of the law.

[8] This model can be seen in European States such as Austria, Germany, France, and Spain. A particular feature of this model of abstract review is that a constitutional Court often has power to review the constitutionality of a law before it comes into effect. Typically, a group of members of Parliament can challenge the constitutionality of a law - one that they have unsuccessfully opposed in the legislature - before the constitutional Court, which is empowered to strike it down prior to its actual promulgation.

[9] In contrast, in the US model, constitutional review of legislation is generally:

(i) Decentralised, in that all ordinary courts of general jurisdiction have the power to determine whether a law is unconstitutional, and the apex Court in the hierarchy is only the final Court of appeal; and

(ii) Concrete, in that the review is conducted in the context of the facts and circumstances of the case litigated before the Court, and is usually incidental to the making of a judicial decisi