Asean LIP: Datuk Seri Anwar Bin Ibrahim v Kerajaan Malaysia and Another

24 Pages·2017·0.22 MB·Indonesian

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DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO: W-01(A)-416-10/2016

ANTARA
DATUK SERI ANWAR BIN IBRAHIM … PERAYU

DAN
1. KERAJAAN MALAYSIA
2. MAJLIS KESELAMATAN NEGARA …RESPONDEN-RESPONDEN

[Dalam Mahkamah Tinggi Malaya di Kuala Lumpur
Saman Pemula No: WA-24-97-08/2016

Dalam Perkara Akta Majlis Keselamatan
Negara 2016

Dan
Dalam Perkara Seksyen 12 Akta
Perlembagaan (Pindaan) 1983 (A566)

Dan
Perkara Seksyen 2 Akta Perlembagaan
(Pindaan) 1984 (A584)

Dan
Dalam Perkara Seksyen 8 Akta
Perlembagaan (Pindaan) 1994 (A885)

Dan
Dalam Perkara Perlembagaan Persekutuan
2

Dan
Dalam Perkara Akta Mahkamah Kehakiman
1964

Dan
Dalam Perkara Kaedah-Kaedah Mahkamah
2012

Antara
Datuk Seri Anwar Ibrahim …Plaintif

Dan
1. Kerajaan Malaysia
2. Majlis Keselamatan Negara … Defendan-Defendan]

(An appeal against the decision of YA Hanipah binti Farikullah, High
Court at Kuala Lumpur made on 14.10.2016)

CORAM
ROHANA YUSUF, JCA
AHMADI HAJI ASNAWI, JCA
DR. BADARIAH SAHAMID, JCA

JUDGMENT OF THE COURT

[1] By an Originating Summons dated 20.10.2016, the appellant
applied to the High Court at Kuala Lumpur for:
“1. A declaration that section 12 of the Constitution
(Amendment) Act 1983 (A566), section 2 of the Constitution
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(Amendment) Act 1984 (A584) and section 8 of the
Constitution (Amendment) Act 1994 (A885) are
unconstitutional, null and void and of no effect;

2. A consequential declaration that Article 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.”
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[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 Article 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 Article 66(4)
which is stipulated as 30 days, shall become law as if it had been
assented to. The appellant firstly contended that Article 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 Article 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 Article 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.
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[4] The learned High Court Judge dismissed the application for an
interim injunction as well as the OS on the preliminary objection raised
by the learned Senior Federal Counsel (SFC) that the High Court is not
seised with jurisdiction to hear or determine the application, because it
falls within the scope of Article 4(3) and (4) of the Federal Constitution.
The jurisdiction of which, is exclusively with the Federal Court under
Article 128. In coming to that conclusion, the learned Judge held herself
bound by the majority judgement in Titular Roman Catholic
Archbishop of Kuala Lumpur v Menteri Dalam Negeri [2014] 4 MLJ
765 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 decision in the Titular Roman
Catholic Archbishop (supra). Learned counsel submitted that the
Federal Court had in that decision wrongly interpreted Ah Thian v
Government of Malaysia [1976] 2 MLJ 112, having regard to the view
expressed by the Federal Court in Mark Koding v Public Prosecutor
[1982] 2 MLJ 120, Ah Thian (supra) and Yeoh Tat Hong v
Government of Malaysia & Anor [1973] 2 MLJ 86.
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[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 the Parliament’s 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 Article 4(3) and (4) as decided by the Federal
Court in that case.

[7] Learned SFC Dato’ Amarjeet Singh (Suzana Atan with him) on the
other hand contended otherwise. Learned SFC maintained that the
scope of challenge in the OS comes within Article 4(3) and (4) of the
Federal Constitution, which requires leave of the Federal Court. Hence
the learned trial Judge was correct to deny jurisdiction.

[8] As a start, we begin with a close examination of the Federal Court
decision in Ah Thian, which has been quoted very often as an authority
on the issue at hand. At page 113 the late Tun Suffian LP in that case
has stated:
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“The applicant wants to attack the validity of the Firearms (Increased
Penalties) Act not on the ground that it relates to which Parliament has no
power to make law. In my judgment this Act deals with both criminal law and
administration of justice, both matters with respect to which Parliament has
power to make law (see item 4 of List 1 in the Ninth Schedule to the
Constitution). The applicant says that the Act is invalid because it is
inconsistent with the Constitution……Therefore clause (4) of Article 4 and
clause (1) of Article 128 do not apply and the point may be raised in the
ordinary way in the course of submission, and determined by the High Court,
without reference to the Federal Court, and there is no need for leave of a
Judge of the Federal Court.”

[9] From the above paragraph it appears that the Federal Court paid
emphasis and drew a distinction on the nature of the challenge made
before invoking Article 4. There is to be a distinction between a
challenge on the basis that the Parliament lacks the power to legislate
with that the Parliament exceeds its power in legislating. This
interpretation according to learned counsel is in accord with the earlier
Federal Court decision in Yeoh Tat Thong v Government of Malaysia
& Anor [1973] 2 MLJ 86. This was a case where the applicant therein
sought for a declaration that the subsidiary legislations made by the
State Authority of Penang under the provision of the National Land Code
was ultra vires, null and void. The applicant applied for leave pursuant to
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Article 4, but was dismissed as the Federal Court held that there was no
necessity for leave because the impugned law being challenged, was
not primary law made by the State Legislature and the challenge was
not on the ground that there was a trespass on the federal sphere.

[10] The case of Mark Koding which was decided after Ah Thian,
involved a challenge on the amendment to the Sedition Act and to Article
63. It was argued that these laws had limited the right to freedom of
speech in the Parliament. The Federal Court speaking through Suffian
LP held the view that the amendment to the Sedition Act and Article 63
have validly limited the freedom of speech in the Parliament. The
Federal Court having found it against the appellant in that case, had
observed at page 123 of the judgment that:
“Secondly we would observe that it would have been better if the learned
Judge had not referred this matter to us but instead had himself decided the
constitutional question which arose (he had the jurisdiction to do so:
Fernandez v Attorney General )…”

[11] The Federal Court case of Rethana v Government of Malaysia
[1984] MLJ 52, questioned the validity of the Employees Social Security
Act 1969 as being unconstitutional, which brought the question of
whether leave of a Federal Court Judge was necessary under Article
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4(3) and (4) read with Article 128. The appellant in that case was
challenging and seeking for a declaration that certain provisions in the
Act were inconsistent with some constitutional provisions and the
impugned Act was void to the extent of the inconsistencies. The Federal
Court found that leave under Article 4 was unnecessary because the Act
was not challenged on the ground that the Parliament had no power to
enact but that some provisions were not consistent with the Federal
Constitution. This, according to the Federal Court was well within the
original jurisdiction of the High Court, hence no leave was then required.

[12] Thus far, it is clear from the decisions outlined above that the basis
of challenge matters, before it can be decided whether to invoke Article
4 or otherwise. In cases where the challenge is on the legislature’s lack
of power to legislate, inevitably leave under Article 4 becomes
necessary. However a challenge plainly on unconstitutionality of a law
which is within the legislative competence but for offending the
constitutional provisions is not one that falls under the scope of Article
4(3) and (4).

[13] In Titular Roman Catholic Archbishop’s case, one of the issues
raised before the High Court was on the validity of section 9, which was
commonly found in the various state enactments (the impugned
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provision). This section of the state enactments seeks to control and
restrict the propagation of non-Islamic religious doctrine and belief
amongst Muslims and contained a provision which prohibits the use of
inter alia the word Allah, in any published writings, speeches or
statement, or speeches addressed at gathering of persons, etc. The
validity and constitutionality of the impugned provision was challenged at
the High Court.

[14] The learned High Court Judge found the impugned section invalid,
null and void and unconstitutional because it exceeded the object of
Article 11(4) of the Federal Constitution. On this issue, the Federal Court
at paragraph 39 observed that:
“The net effect of the finding of the learned High Court Judge is that the
impugned provision is invalid, null and void, and unconstitutional as it exceeds
the object of Article 11(4) of the Federal Constitution. The respective States’
Legislature thus has no power to enact the impugned provision. The issue is,
whether could the High Court Judge entertain such a challenge in light of
specific procedure in clauses (3) and (4) of the Federal Constitution…”
(emphasis ours)

[15] Having found that the ground of challenge in Titular Roman
Catholic Archbishop was a challenge on the ground that “The respective
States’ Legislature (thus) has no power to enact the impugned provision”, the