King may refer constitutionality question to Federal Court — Puthan Perumal

FEBRUARY 18 — It was reported that back on February 17, 2016, the Conference of Rulers asked that the then National Security Council Bill be refined. We know now that the said Bill was made into law notwithstanding.

In the same year, Datuk Seri Anwar Ibrahim applied to the High Court for a declaration that the said NSC Act 2016 is unconstitutional. His claim was thereafter referred by the High Court to the Federal Court pursuant to Section 84 of the Courts Of Judicature Act 1964 for its determination on the constitutionality of the NSC Act 2016.

On February 11, 2020, the Federal Court in a majority 5-2 majority decision, held the following in answer to Anwar’s referral:

[32. To summarise, the following principles should be borne in mind when considering the referral jurisdiction of the Federal Court:

(i) The referral jurisdiction in Article 128(2) FC and section 84 CJA forms part of the constitutional framework, and must be construed in its light;

(ii) The Federal Court is the court of last resort in respect of constitutional issues, except those falling within its narrowly construed original jurisdiction;

(iii) Section 84 does not fundamentally change the nature of the Federal Court into a constitutional court. It is not a carte blanche for all constitutional questions to be referred to and determined by the Federal Court in every case. The High Court should normally determine constitutional questions themselves at first instance; and

(iv) Where a special case is referred to the Federal Court under section 84, the Federal Court is not obliged to answer it in the terms posed, but retains a wide range of powers to deal with it in the same way as an appeal.

The Federal Court went on to hold:

[64. In the absence of an actual controversy affecting the rights of parties, the constitutional questions referred to us are abstract and purely academic. The questions have not become academic due to some change in the factual substratum; they were academic for there was no real dispute underlying them to begin with. They exist in a complete factual vacuum in the case before us. To answer the questions posed would be a significant departure from the deep-rooted and trite rule that the court does not entertain abstract or academic questions, and may even represent a fundamental shift away from the common law model of concrete review towards the European model of abstract review in constitutional adjudication. Exceptionally cogent reasons would need to be provided to persuade the Federal Court to undertake such a radical departure from established principle. In this case, the parties have not attempted to do so.

[65. Although the constitutional questions posed are undoubtedly of importance, based on the cause papers before us, we regretfully consider that this is not a proper case for the Federal Court to answer the questions in the abstract. In the circumstances, we are constrained to go no further than to express our grave reservations as to the constitutional validity of the NSCA.

In other words, what the Federal Court said was that as far as the claimant Datuk Seri Anwar Ibrahim was concerned, there was no controversy affecting his rights vis-s-vis the said NSC Act 2016, and therefore the issue became abstract and purely academic, and the circumstances of Anwar’s case does not fall under the principles established for a referral to the Federal Court.

Anwar’s case was then sent back to the High Court to be decided there, and perhaps one day this same case may make its way back to the Federal Court, not as a referral as it had, but as an appeal.

However, the Federal Court did say the following earlier in its majority judgment:

[28. The key words are “in the same way as an appeal to the Federal Court.” Section 85(1) expressly allows the Federal Court to access the full spectrum of its powers as an appellate court in dealing with a case referred to it under section 84. The phrasing in section 85(1) can be contrasted with the more direct language in Article 130 of the FC, which indicates that the Federal Court has no option but to pronounce an opinion on any question referred to it by the Yang di-Pertuan Agong:

“The Yang di-Pertuan Agong may refer to the Federal Court for its opinion any question as to the effect of any provision of this Constitution which has arisen or appears to him likely to arise, and the Federal Court shall pronounce in open court its opinion on any question so referred to it.”

This brings us back to the point raised earlier, that the Conference of Rulers had asked that the then NSC Bill to be refined. Quite clearly, there was something that raised eyebrows. That Bill, nothwitstanding, was converted into law without any refinement.

If the Federal Court had found that Datuk Seri Anwar Ibrahim is not a party whose rights were affected by the said NSC Act 2016 and issues were abstract and academic to warrant an answer by way of a referral, then, perhaps, the Yang di-Pertuan Agong may assist us for the seeking of justice on this matter.

Article 38(2) of the Federal Constitution authorises the Conference of Rulers to, among others, deliberate on questions of national policy (for example changes in immigration policy) and  any other matter that it thinks fit.

Article 38(3) of the Federal Constitution states that when the conference deliberates on matters of national policy, the Yang di-Pertuan Agong is accompanied by the prime minister and the rulers and governors are accompanied by their menteris besar and chief ministers, respectively.

This  means that when the conference is deliberating on “any other matter that it thinks fit” (as stated in Article 38(2)), they can do so on their own and in their wisdom.

The words “any  other  matter  that  it  thinks  fit” suggest that the conference is empowered to deliberate on a myriad of circumstances which in their wisdom seems important to the country as a whole. These myriad of circumstances are never closed.

Deliberate  means to engage in long and careful consideration.

The learned constitutional expert Professor Shad Saleem Faruqi once reminded me of the following:

“That there is a distinction between 'national policy' and 'any other matter that it thinks fit.' The first is subject to constitutional advice under 38(3). The second is discretionary. 

I was also reminded that scrutinising legislation would come under the umbrella of “any other matter” envisioned by Article 38(2) of the Federal Constitution.

In the circumstances, it is humbly submitted that if the Conference of Rulers deliberate on the issue of whether the NSC Act 2016 affects any of the provision of the Federal Constitution, then, the YDPA may invoke Article 130 of the Federal Constitution and refer that lingering question to the Federal Court, and to quote what the Federal Court had said in the Datuk Seri Anwar Ibrahim judgment, the Federal Court has no option but to pronounce an opinion on any question referred to it by the Yang di-Pertuan Agong.

* Puthan Perumal is an advocate & solicitor

** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.

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