The court has inherent jurisdiction to review its decisions to prevent injustice and safeguard natural justice principles, especially when a party was not granted a fair hearing.

Harmindar Singh Dhaliwal FCJ:

Introduction

[1] This application raises two important questions. The first pertains to the jurisdiction of this court to review its own decisions which have been heard and decided. The second concerns the circumstances in which denial of the right to be heard can constitute a ground for such review warranting a rehearing.

[2] The application (encl 1) was filed pursuant to r 137 of the Rules of the Federal 1995 ("RFC 1995") and the inherent jurisdiction of the court to set aside an earlier decision of this court. The decision which is the subject matter of the complaint is the majority decision of this court dated 11 February 2020, where the court declined, by majority, to answer the constitutional questions referred to the court on the grounds that the questions were abstract, academic and hypothetical. These constitutional questions were referred by special case from the High court pursuant to s 84 of the Courts of Judicature Act 1964 ("CJA 1964").

[3] We heard the instant application on 10 September 2020. The primary legal issue confronting us was whether there was a breach of natural justice and if so, whether it had resulted in a grave injustice such that a review of our earlier decision was warranted. After having read the written submissions as well as hearing oral arguments on the issues raised, we were of the unanimous view that this was a fit and proper case for review. Accordingly, we set aside our earlier decisions and ordered the special case to be fixed for rehearing. We now provide our reasons which will represent the judgment of this court.

The Factual Background

[4] The relevant facts leading to the filing of the present application are extensively set out in the court documents which include the submissions of the parties and the previous judgments of this court. In the context of the instant application, it is sufficient for our purpose to restate the following background facts as revealed in the said documents.

[5] The proceedings began when the applicant, on 2 August 2016, filed an Originating Summons ("the OS") at the Kuala Lumpur High court. The applicant, at the time, was in prison serving his sentence. He later became, and is currently, a Member of Parliament. The OS substantially sought a declaration to the effect that the National Security Council Act 2016 ("NSCA 2016") is unconstitutional. For completeness, the reliefs sought are as follows:

(a) A declaration that s 12 of the Constitution (Amendment) Act 1983 [A566], s 2 of the Constitution (Amendment) Act 1984 [A584] and s 8 of the Constitution (Amendment) Act 1994 [A885] are unconstitutional, null and void and of no effect;

(b) A consequential declaration that arts 66(4) and 66(4A) of the Federal Constitution (Amendment) Act 1994 [A885] are unconstitutional, null and void and of no effect;

(c) A declaration that the NSCA 2016 is unconstitutional, null and void and of no effect; and

(d) A perpetual injunction to restrain the 2nd defendant from taking any steps or acting on the NSCA 2016.

[6] At the hearing before the High court, two preliminary objections were raised against the suit. The objections were:

(a) that the High court has no jurisdiction to determine this dispute as the subject matter of the challenge is for the exclusive jurisdiction of the Federal court; and

(b) that the applicant does not have locus standi to maintain this suit.

[7] At the hearing, Hanipah Farikullah J (now JCA) sustained the first preliminary objection considering herself bound by the judgments of this court in Titular Roman Catholic Archbishop Of Kuala Lumpur v. Menteri Dalam Negeri & Ors, 2014 MarsdenLR 2254 ("Titular Roman Catholic") and State Government Of Negeri Sembilan & Ors v. Muhammad Juzaili Mohd Khamis & Ors; [2015] 6 MLJ 736 ; 2015 MarsdenLR 1950 ; [2015] 6 AMR 248 ("Juzaili") which judgments held that challenges such as these would have to be initiated directly at the Federal court (see Datuk Seri Anwar Ibrahim v. Kerajaan Malays