JUDGMENT

Rohana Yusuf JCA:

[1] By an Originating Summons dated 20 October 2016, the appellant applied to the High Court at Kuala Lumpur for:

1. 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;

2. A consequential declaration that art 66(4) and (4A) as introduced by the Constitutional (Amendment) Act 1994 (A885) is unconstitutional, null and void and of no effect;

3. A declaration that the National Security Council Act 2016 is unconstitutional, null and void and of no effect;

4. An injunction perpetually restraining the 2nd defendant from taking or purporting to take any step or from acting or purporting to act pursuant to the National Security Council Act 2016;

5. Such further and other declaration be granted consequent upon the relief claimed herein;

6. That there be no order as to costs.

[2] In essence, the Originating Summons (OS) seeks to challenge the constitutionality of the National Security Council Act 2016 (NSCA). The NSCA had become law by virtue of art 66(4A) of the Federal Constitution. Under that Article, a Bill which is not assented to by the Yang di-Pertuan Agong within the time specified under art 66(4) which is stipulated as 30 days, shall become law as if it had been assented to. The appellant firstly contended that art 66(4A) is unconstitutional because the amendment of it offended the basic structure of the Federal Constitution. Following thereto, the NSCA which becomes law under that provision, is therefore unconstitutional, null and void.

[3] The next ground of unconstitutionality of the NSCA as contended by the appellant is on the premise that the NSCA being a security legislation, may be validly enacted only pursuant to art 149. Article 149 being the only provision in the Federal Constitution that empowers and allows the enactment of a security legislation. As the NSCA is not legislated pursuant to art 149, it is not constitutional and not a valid law. The appellant also sought for an interim injunction to restrain the respondents from taking action under NSCA, pending the disposal of the OS.

[4] The learned High Court Judge dismissed the application for an interim injunction as well as the OS on the preliminary objection raised by learned Senior Federal Counsel (SFC) that the High Court is not seized with jurisdiction to hear or determine the application, because it falls within the scope of art 4(3) and (4) of the Federal Constitution. The jurisdiction of which, is exclusively with the Federal Court under art 128. In coming to that conclusion, the learned judge held herself bound by the majority judgement in ; [2014] 4 MLJ 765; [2014] 6 CLJ 541 and consequently dismissed the OS. Aggrieved by that decision the appellant is now appealing.

[5] Learned counsel for the appellant, Datuk Sri Gopal Sri Ram (Latheefa Koya and Damien Chan with him) first of all submitted that the learned judge had erred in finding herself lacking the necessary jurisdiction, relying on the Federal Court's decision in the Titular Roman Catholic Archbishop (supra). Learned counsel submitted that the Federal Court had in that decision wrongly interpreted ; [1976] 2 MLJ 112 , having regard to the view expressed by the Federal Court in ; [1982] 2 MLJ 120, Ah Thian (supra) and .

[6] Learned counsel had impressed upon us that, the challenge made in the application herein is an ordinary challenge taken in the usual way, to question the constitutionality of a statute which a High Court has the necessary jurisdiction to deal with. The learned trial Judge, it was submitted had therefore erred in saying that the application is a challenge on Parliaments legal competence, or for lack of power to legislate. Learned counsel reiterated that the application herein falls squarely within Ah Thian (supra). There is therefore no necessity to obtain leave pursuant to art 4(3) and (