Zaleha Yusof FCJ:

GROUNDS OF JUDGMENT

(Majority)

INTRODUCTION

[1]By consent and by order of the High Court dated 14.3.2019, this special case was referred to this Court pursuant to section 84Courts of Judicature Act 1964

(1)Whether section 12section 8

(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 Article 149 of the FC; and

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

[2]Section 85CJADatuk Seri Anwar Ibrahim v Government of Malaysia & Anor (DSAI 1).

[3]However, on an application for a review made by the appellant pursuant to rule 137 of the Rules of the Federal Court 1995, this Court had on 10.9.2020 allowed the appellant’s application and set aside the original panel’s decision delivered on 11.2.2020. 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 Kerajaan Malaysia and Anor 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 academic.

[6]Regrettably, at the rehearing of this special case, the issue, which was the very reason why the review was allowed at all by this Court, was abandoned; as learned Senior Federal Counsel acting for the respondents informed the Court that she would not take up the issue and was ready to defend the amending Acts on the merit. With that concession, the hearing proceeded and the issue of whether the constitutional questions were abstract, academic and hypothetical, a most critical and valid issue which still troubles me, remains unaddressed at the rehearing of this special case. Surely this apex Court must not be called upon to answer questions posed either in the affirmative or negative as required under subsection 84(3)CJA

[7]The adversarial system, as practised in this country for the last sixty-four years does not mean that the Courts, particularly the apex Court, has become an answering post, “a debating club nor an advisory bureau”, obliged to answer any and all questions posed when there is no dispute or lis involved –See: Bar Council Malaysia v Tun Dato Seri Arifin Zakaria & Ors And Another Reference