PUTRAJAYA: The National Security Council (NSC) Act, which came into force on Aug 1, 2016, is unconstitutional as it has taken away a number of basic fundamental rights guaranteed in the Federal Constitution, a lawyer told the Federal Court today.
Gopal Sri Ram, who is appearing for opposition leader Anwar Ibrahim, said several aspects of the NSC Act had removed the rights to life and personal liberty, freedom of movement, free speech, assembly and association, and right to property.
“The NSC Act must be struck down for violating Articles 5, 9 10 and 13. This law did not come within the ambit of Article 149 to take away such rights to protect the security of the nation,” he said in his submission before a seven-member bench led by Vernon Ong Lam Kiat.
Anwar is seeking a declaration that Section 12 of the Constitution (Amendment) Act 1983, Section 2 of the Constitution (Amendment) Act 1984, and Section 8 of the Constitution (Amendment) Act 1994 are null and void on grounds that they breach the basic structure of the Federal Constitution.
He is seeking a consequential declaration that the NSC Act is unconstitutional, null and void on grounds that it became law pursuant to an unconstitutional amendment, and was not enacted in accordance with Article 149.
Sri Ram said nowhere was it stated in the Act that Parliament enacted it under Article 149, where fundamental rights could be taken away.
The former Federal Court judge also said the Act was null and void as the Yang di-Pertuan Agong did not give his royal assent.
Parliament had amended the constitution in 1983, 1984 and 1994 to state that bills and changes to the constitution approved by the legislature were deemed to become law without the royal assent after 30 days.
Sri Ram said the King’s function of assenting to bills was an executive authority and he must act on the advice of the Cabinet or a minister.
He said any amendments to the constitution and federal laws that impeded his right to assent was unconstitutional, null and void.
“Fixing a time for him to deliver the assent and then dispense it after expiry of time is against the basic structure of the constitution,” he argued.
However, senior federal counsel Suzana Atan said the Act was drawn up in compliance with Article 149, though not expressly stated.
“The recital to the NSC Act said it was enacted to allow a council to set up, declare a location as a security area and give special powers to the security forces,” she said.
Suzana said the amendments to the constitution to specify time to the King to give his assent or else law were deemed to be passed and constitutional.
She said the King was a constitutional monarch who must act on the advice of the Cabinet or minister, except those provided under Article 40 (2).
“In assenting to bills, the King also has no discretion,” she said, adding that the amendment to the constitution to stipulate a time frame was valid.
Others on the bench were Zaleha Yusof, Zabariah Mohd Yusof, Hasnah Mohammed Hashim, Mary Lim Thiam Suan, Harmindar Singh Dhaliwal and Rhodzariah Bujang.
The bench reserved judgment on Anwar’s application.