Datuk Seri Anwar Ibrahim v Kerajaan Malaysia & 1 Lagi (06(RS)-1-03/2019(W))

1.

THE NATIONAL SECURITY COUNCIL … RESPONDENTS IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR ORIGINATING SUMMONS NO: WA-24-97-08/2016 In the matter of National Security Council Act 2016 And In the matter of Section 12 of the Constitution (Amendment) Act 1983 (A566) And In the matter of Section 2 of the Constitution (Amendment) Act 1984 (A584) And In the matter of Section 8 of the Constitution (Amendment) Act 1994 (A885) And In the matter of Federal Constitution And 2 In the matter of Courts of Judicature act 1864 And In the matter of Rules of Court 2012 Between Datuk Seri Anwar Ibrahim ... Plaintiff And ... Defendants CORAM: TENGKU MAIMUN BINTI TUAN MAT, CJ AZAHAR BIN MOHAMED, CJM DAVID WONG DAK WAH, CJSS MOHD. ZAWAWI BIN SALLEH, FCJ ABANG ISKANDAR BIN ABANG HASHIM, FCJ IDRUS BIN HARUN, FCJ NALLINI PATHMANATHAN, FCJ GROUNDS OF JUDGMENT (MAJORITY JUDGMENT)

This is a special case referred to the Federal Court from the High Court pursuant to section 84 of the Courts of Judicature Act (“CJA”). 3

My learned brothers Azahar Mohamed CJM and Zawawi Salleh, Abang Iskandar Abang Hashim, Idrus Harun FCJJ have read this judgment in draft and expressed their agreement for it to be the majority judgment of the court. Background

The parties will be referred to as they were in the High Court. The Plaintiff filed an Originating Summons in the High Court seeking the following relief:

(i) 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 (“the Amending Provisions”) are unconstitutional, null and void, and of no effect;

At the High Court, the parties agreed for constitutional questions to be referred to the Federal Court for determination under section 84 of the CJA. On 14.3.2019, the learned High Court judge referred the following 4 two constitutional questions to this Court by way of a special case pursuant to section 84 of the CJA:

(i) Whether the Amending Provisions are unconstitutional, null and void and of no effect on the ground that they violate the basic structure of the FC; and

(a) It became law pursuant to unconstitutional amendments;

(b) It was not enacted in accordance with Article 149 of the FC; and

(c) It violates the freedom of movement guaranteed by Article 9(2) of the FC.

This case calls for a proper understanding of the role of the Federal Court in our constitutional framework. While a comprehensive study on models of constitutional adjudication is beyond the scope of this judgment, it is necessary to begin with a basic understanding of the system adopted in Malaysia.

The forms of constitutional review of legislation can be broadly classified into two main models: the continental European model of review 5 by a specialised constitutional court, and the American or common law model of review by ordinary courts.

In the European model, influenced by the jurisprudence of Hans Kelsen, constitutional review of the validity of legislation is generally:

(i) Centralised, in that the review is conducted only by a specialised constitutional court; and

This model can be seen in European states such as Austria, Germany, France, and Spain. A particular feature of this model of abstract review is that a constitutional court often has power to review the constitutionality of a law before it comes into effect. Typically, a group of members of Parliament can challenge the constitutionality of a law - one that they have unsuccessfully opposed in the legislature - before the constitutional court, which is empowered to strike it down prior to its actual promulgation.

In contrast, in the US model, constitutional review of legislation is generally:

(i) Decentralised, in that all ordinary courts of general jurisdiction have the power to determine whether a law is unconstitutional, 6 and the apex court in the hierarchy is only the final court of appeal; and

This model was prominently developed in the US and adopted in countries which formerly formed part of the British empire. Examples can be seen across common law Commonwealth jurisdictions, including Australia, Canada, India, and Malaysia. (AHY Chen, M P Maduro, “The Judiciary and Constitutional Review” in M Tushnet, T Fleiner, C Saunders (eds) Routledge Handbook of Constitutional Law (London and New York: Routledge, 2013) at 97-99; A Harding, “The Fundamentals of Constitutional Courts” (Myanmar: International Institute for Democracy and Electoral Assistance, 2017) at 1-3; M Rosenfeld, “Constitutional Adjudication in Europe and the United States: paradoxes and contrasts”, International Journal of Constitutional Law, Vol. 2 No. 4 (OUP and New York University School of Law, 2004) at 633-634)

Two important consequences flow from what we may term the common law model of decentralised, concrete review in Malaysia. First, constitutional questions can and should normally be determined by the High Courts at first instance. The role of the Federal Court in constitutional adjudication is only as a court of final appeal or last resort; its jurisdiction 7 to determine matters at first instance is limited and strictly construed. Second, as a general rule, constitutional review of legislation cannot be triggered in the absence of a concrete controversy. A real and actual controversy constitutes the basis for the review.

These two points will be elaborated in turn. DECENTRALISED REVIEW Jurisdiction of the Federal Court

The general scheme of the FC is to empower all courts to interpret the constitution (Gin Poh Holdings Sdn Bhd (in voluntary liquidation) v The Government of the State of Penang & Ors [2018] 3 MLJ 417 at [35]-[36]). The power to interpret constitutional provisions is not exclusive to the Federal Court. “The Federal Court is not a constitutional court, but as the final court of appeal on all questions of law, is the final arbiter on the meaning of constitutional provisions” (A Harding, Law, Government and the Constitution in Malaysia (Kuala Lumpur: Malayan Law Journal, 1996) at p 138).

The jurisdiction of the Federal Court is of four kinds: appellate jurisdiction, original jurisdiction under Article 128(1) FC, referral jurisdiction under Article 128(2), and advisory jurisdiction under Article 130 (Assa Singh v Mentri Besar, Johore [1969] 2 MLJ 30 at 36; Kulasingam v Public Prosecutor [1978] 2 MLJ 243 at 244). The exclusive original jurisdiction of the Federal Court is confined only to Federal-State disputes, disputes between states, and cases where the validity of a law is challenged on the ground that Parliament or a State 8 Legislative Assembly had legislated on a matter on which it had no power to make laws. All other questions of constitutionality are within the jurisdiction of the High Court (Gin Poh Holdings Sdn Bhd (supra) at [36]).

The limits of the exclusive original jurisdiction of the Federal Court are strictly construed. This is to preserve the role of the Federal Court as a final court of appeal on constitutional issues; “to extend the exclusive original jurisdiction of the Federal Court to matters which are not expressly provided by the Constitution would apart from anything else, deprive aggrieved litigants of their right of appeal to the highest court in the land” (Rethana v Government of Malaysia [1984] 2 MLJ 52 at 54).

Under the constitutional scheme, therefore, the Federal Court is generally a court of last resort for all constitutional questions. It is only in a narrow category of exceptional cases - those expressly stipulated in Article 128(1) FC - that such questions must be determined by the Federal Court at first instance. History of section 84 CJA

The constitutional role of the Federal Court is reflected in the wording and application of section 84 of the CJA. The referral jurisdiction of the Federal Court is provided under Article 128(2) of the FC: Without prejudice to any appellate jurisdiction of the Federal Court, where in any proceedings before another court a question arises as to the effect of any provision of this Constitution, the Federal Court shall have jurisdiction (subject 9 to any rules of court regulating the exercise of that jurisdiction) to determine the question and remit the case to the other court to be disposed of in accordance with the determination.

The original form of the present section 84, which provides for the reference of constitutional questions by the High Court, was found in section 48 of the CJA. Before amendment, section 48(1) initially read: Where in any proceedings in any High Court a question arises as to the effect of any provision of the Constitution, the Judge hearing such proceeding shall stay the same on such terms as may be just to await the decision of such question by the Federal Court. (emphasis added)

The original mandatory language of section 48 was inconsistent with the constitutional scheme (Gerald Fernandez v Attorney-General Malaysia [1970] 1 MLJ 262 at 264), in that it deprived the High Court of power to decide constitutional questions arising in proceedings before it (Parliamentary Hansard, 16 October 1964). Thus, the CJA was swiftly amended in 1964 itself by substituting the word “shall” (underlined above) with “may”. The purpose of the amendment was to ensure conformity with the constitutional scheme, and to avoid any impression that section 48 had the “effect of extending the exclusive jurisdiction of the Federal Court to decide constitutional questions beyond the limits on that exclusive jurisdiction prescribed by the Constitution” (explanatory statement to the Courts of Judicature (Amendment) Bill 1964). 10

The effect of the amendment made it clear that there is no obligation on the part of the High Court to refer any constitutional question arising before it to the Federal Court; it may itself dispose of the question (Hashim bin Saud v Yahaya bin Hashim & Anor [1973] 2 MLJ 85 at 85; M Suffian bin Hashim, An Introduction to the Constitution of Malaysia (Kuala Lumpur: Jabatan Chetak Kerajaan, 1972) at 86).

In fact, “the Federal Court has been at pains to point out that, although constitutional issues can be referred to it by lower court, decided and then remitted to the lower court, the lower courts should decide issues of constitutionality themselves in the first instance” (Harding (supra) at 138). The point was emphatically made by Suffian LP in Mark Koding v Public Prosecutor [1982] 2 MLJ 120 at 123-124: “[I]t would have been better if the learned Judge had not referred this matter to us but instead had himself decided the constitutional questions which arose (he had jurisdiction to do so: Fernandez v Attorney-General [1970] 1 MLJ 262, 264) and decided the case one way or the other. If he had done that and there were an appeal to us, the whole matter would have been disposed of in two steps. By referring this matter to us without deciding it one way or another, should there be an appeal from his decision on the charge, this matter would come back to us a second time, and thus will have to be disposed of in four steps: causing delay and additional expense, instead of helping in the words of section 48(2) of the Courts of Judicature Act, towards the speedy and economical final determination of these proceedings.” 11

Thus the drafters of the FC and CJA envisaged that the reference jurisdiction under (now) section 84 of the CJA was not to be exercised automatically or invariably in every case. The High Court should generally and ordinarily determine constitutional questions at first instance, barring those within the original jurisdiction of the Federal Court. Not all cases should be referred to the Federal Court for determination. It is implicit in the constitutional and statutory scheme that the “special cases” suitable to be referred to and determined by the Federal Court must necessarily be subject to certain conditions.

Section 84 of the CJA does not expressly indicate the factors to be considered in determining whether a case is suitable to be referred to and determined by the Federal Court. Where the statute conferring a jurisdiction or discretion is silent as to how precisely it must be exercised, It is well-established that the court has the power to develop common law principles to guide the exercise of its discretion. Powers of the Federal Court in hearing section 84 reference

Section 84 of the CJA as it presently stands reads as follows: Reference of constitutional question by High Court Judge hearing such proceeding may stay the same on such terms as may be just to await the decision of such question by the Federal Court. 12 any party and shall be made at such stage of the proceedings as the Judge may see fit having regard to the decision of such questions of fact as may be necessary to be settled to assist the Federal Court in deciding the question which has arisen and to the speedy and economical final determination of the proceedings.

(emphasis added)The wording of the section indicates the following basic requirements for a referral to be made under section 84:

(i) the question to be referred must arise in any proceedings in any High Court;

The separation of the question of law to be referred from questions of fact in section 84(2) appears to envisage some factual basis underlying the constitutional question to be referred. The section indicates that “the Federal Court does not assume jurisdiction of the whole case but only of the constitutional issue, remitting the case to the court of original jurisdiction for disposition in accordance with the constitutional determination” (H E Groves, The Constitution of Malaysia (Singapore: Malaysia Publications Ltd, 1964) at 104).

Once a special case is referred to the Federal Court, section 85 of the CJA becomes relevant: Proceedings in Federal Court Federal Court under section 84, the Federal Court shall, subject to any rules of court of the Federal Court, deal with the case and hear and determine it in the same way as an appeal to the Federal Court. (emphasis added) 14

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. (emphasis added)

The powers available to the Federal Court in dealing with a civil appeal include, but are not limited to, the power to:

(i) Amend or add questions of law for which leave to appeal has been granted (Terengganu Forest Products Sdn Bhd v Cosco Container Lines Co Ltd & Anor and other applications [2011] 1 MLJ 25 at [32]);

(v) Decline to answer a question of law if it is abstract, academic, or hypothetical (Terengganu Forest (supra) at [34]).

It is clear that in dealing with a reference under section 84 CJA, the Federal Court is not bound to answer the constitutional question posed in the terms framed. This has been held in Mark Koding v Public Prosecutor [1982] 2 MLJ 120 at 123, in which one of the questions referred to the Federal Court was whether Parliament has power to amend the constitution so as to alter its basic structure. Suffian LP found it unnecessary to answer the question for the purposes of deciding that case.

Thus, the suggestion that the Federal Court has no choice but to answer any constitutional question referred to it in every case under section 84 CJA is misguided, and founded on a misunderstanding of the role and powers of the Federal Court. Summary

To summarise, the following principles should be borne in mind when considering the referral jurisdiction of the Federal Court: 16

(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;

The second point flowing from the common law model of constitutional adjudication is that constitutional questions are not determined in the abstract but by reference to the factual disputes from which they arise. This feature is reflected in the well-established principle 17 that the court should decline to determine academic, abstract, or hypothetical questions. This principle is in no way abrogated by section 84 of the CJA.

As a general rule, the court does not pronounce on abstract questions of law when there is no dispute to be resolved (Sun Life Assurance Co. of Canada v Jervis [1944] AC 111 at 113-114; Ainsbury v Millington [1987] 1 All ER 929 at 930-931). It is not the function of the courts to decide hypothetical questions which do not impact on the parties before them; they are “neither a debating club nor an advisory bureau” (Bar Council Malaysia v Tun Dato’ Seri Arifin bin Zakaria & Ors (Persatuan Peguam-peguam Muslim Malaysia, pencelah) and another case [2018] MLJU 1288 at [63]).

The rationale from this rule stems from the function of common law courts to adjudicate upon actual disputes between parties: “[w]ithout a lis, the courts may find themselves being called on to give advisory opinions on abstract, hypothetical and/or academic questions instead of deciding on real disputes” Tan Eng Hong v Attorney-General [2012] SGCA 45 at [132]). As explained by the Hong Kong Court of Appeal in Leung T C William Roy v Secretary for Justice [2006] HKCU 1585 (at [28]): “One of the recognized dangers of dealing with hypothetical or academic cases is that the court may be asked to decide important principles without the benefit of a full set of facts. There is also to be considered a practical factor: - the administration of justice would hardly be served if the courts were regularly to entertain cases which were not real but only hypothetical.” 18

The need for the existence of a concrete dispute is also to ensure finality in the court’s judgments; if there is in fact no real subsisting controversy, an issue decided in the abstract would not be res judicata and could be reopened again and again (Tan Eng Hong (supra) at [132]).

The general rule is equally applicable to questions of constitutional law. In matters of constitutional interpretation, the court must be mindful to confine their decisions to concrete questions which have actually arisen in the case, so as to avoid injustice to future cases (Gin Poh Holdings Sdn Bhd (supra) at [57]). The approach of the courts is succinctly stated by Justice Matthews in Liverpool, New York and Philadelphia SS Co v Commissioners of Emigration (1885) 113 US 33 at 39: “In the exercise of its jurisdiction… the Court is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. These rules are safe guides to sound judgment. It is the dictate of wisdom to follow them closely and carefully.”

The general rule is subject to an important proviso: the court still retains a discretion to hear a matter which has become academic in exceptional cases. The discretion may be exercised in respect of important questions of public law, where the case does not involve a detailed consideration of the facts, or where a large number of similar cases need to be resolved. This discretion, even in the area of public law, 19 should not be exercised unless there is a good reason in the public interest for doing so (R v Secretary of State for the Home Department ex p Salem [1999] AC 450 at 456; approved in Bar Council Malaysia v Tun Dato’ Seri Arifin bin Zakaria (supra) at [59]-[60]).

It is observed that in the limited cases where the court exercised its discretion to invoke this exception, the cases generally involved questions that became academic due to a subsequent change in circumstances after the case was filed (Timbalan Menteri Keselamatan Dalam Negeri, Malaysia & Ors v Arasa Kumaran [2006] 6 MLJ 689 at [6]; Teoh Eng Huat v Kadhi, Pasir Mas & Anor [1990] 2 MLJ 300 at 301). Test for determining whether matter is abstract or academic

The test to determine whether a matter is abstract or academic is “whether there is in existence a matter in actual controversy between the parties which will affect them in some way” (Metramac Corp Sdn Bhd v Fawziah Holdings Sdn Bhd [2006] 4 MLJ 113 at 120-121).

A live, practical question subsequently becomes academic, when the factual context has changed irrevocably such that the outcome will no longer affect the parties in any way. In such instances, the court will ordinarily decline to determine it. By way of illustration, in Bar Council Malaysia v Tun Dato’ Seri Arifin bin Zakaria & Ors (Persatuan Peguam-peguam Muslim Malaysia, pencelah) and another case [2018] MLJU 1288 (at [64]-[66]), the Federal Court held that the challenge to the constitutionality of the appointments of the Chief Justice and the President of the Court of Appeal became academic. Since the fundamental purpose of the application was to ensure that the two judges 20 were removed from those positions, once they have resigned, “matters have changed irrevocably” and the factual substratum underlying the question no longer exists.

In contrast, a matter is not abstract, academic or hypothetical if the parties’ rights and interests are actually affected. In Nik Noorhafizi bin Nik Ibrahim & Ors v Public Prosecutor [2013] 6 MLJ 660 (at [50], [65]), the appellants challenged the constitutionality of section 27 of the Police Act 1967, which was subsequently repealed. The Court of Appeal (sitting as the apex court) held that the constitutional challenge did not become academic. The appellants, who have been convicted and fined under that section, had a direct interest to challenge their conviction and sentence.

The key question is thus whether there is a real and actual controversy between the parties which will affect their rights and interests. Conceptually, the question is inextricably intertwined the test of locus standi, which requires a party to have been “adversely affected” in the sense that they have a “real and genuine interest in the subject matter” (Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi & Anor [2014] 3 MLJ 145 at [58]). A violation of a constitutional right gives rise both to a “real interest” for a party to bring the action and a “real controversy” between the parties to the action (Tan Eng Hong (supra) at [106]). As such, in the context of determining whether there is a real controversy in a constitutional challenge, attempts to sever the requirement of an actual controversy from the notion of standing would be “conceptually awkward, if not impossible” (Croome v State of Tasmania (1997) 142 ALR 397 at 405-406). For the purposes of this case, we will frame the foregoing discussion in terms of the Metramac test of “actual controversy”. 21 Whether the mere existence of a law gives rise to an actual controversy affecting the parties

In this case, the Plaintiff does not assert that the NSCA has been invoked so as to violate his rights or interests, or that of anyone else. His grievance is purely legal, directed against the alleged inherent unconstitutionality of the Act. The constitutional questions referred to us arises from no other fact than the very existence of the Act itself. In these peculiar circumstances, the central issue is whether the questions referred are purely abstract or academic. Can the mere existence of a law, without more, give rise to an actual controversy affecting the parties? Or must the impugned law be used to the detriment of a party before it can constitute an actual controversy?

Useful illumination on this question can be gleaned from three cases in different jurisdictions, all relating to similar subject matters: Tan Eng Hong v Attorney-General [2012] SGCA 45 (Singapore Court of Appeal), Croome v State of Tasmania (1997) 142 ALR 397 (High Court of Australia), and Leung T C William Roy v Secretary for Justice [2006] HKCU 1585 (Hong Kong Court of Appeal). In each case, the appellants, homoseuxal men, challenged the constitutionality of a particular provision in the local criminal legislation which criminalised consensual sexual conduct between males. In all three cases, the apex courts held that the appellants were entitled to bring the constitutional challenge; they need not wait to be prosecuted under the impugned provisions for a real controversy to arise.

In Tan Eng Hong (supra), the appellant was arrested and charged under section 377A of the Singapore Penal Code for the commission of 22

The Singapore Court of Appeal held that the crux of the standing requirement as well as the requirement for a real controversy is the violation of a constitutional right; an arguable violation of constitutional rights gives rise to a real controversy for the court to determine (at [84], [179]). “Every citizen has constitutional rights, not every citizen’s constitutional rights will be affected by an unconstitutional law in the same way”; pertinently, while a constitutional right may be enjoyed by all citizens, the mere holding of a constitutional right is insufficient to found a challenge to the law - there must also be a violation of the constitutional right (at [93]). It was found that an arguable violation of constitutional rights occurred when the appellant was arrested and detained under an allegedly unconstitutional law, even though the charge was subsequently substituted (at [151]).

However, the court went further and opined that the mere existence of an allegedly unconstitutional law can, in some cases, constitute a violation of constitutional rights. VK Rajah JA rejected the proposition that a prosecution under an allegedly unconstitutional law must be demonstrated in every case before a violation of constitutional rights can be shown (at [110]): 23 “The effects of a law can be felt without a prosecution, and to insist that an applicant needs to face a prosecution under the law in question before he can challenge its constitutionality could have the perverse effect of encouraging criminal behaviour to test constitutional issues. Even though a violation of constitutional rights may be most clearly shown where there is a subsisting prosecution under an allegedly unconstitutional law, we find that a violation may also be established in the absence of a subsisting prosecution. In certain cases, the very existence of an allegedly unconstitutional law in the statute books may suffice to show a violation of an applicant’s constitutional rights.”

While the court recognised the possibility of such a case in principle, it declined to lay down a general rule that the existence of an allegedly unconstitutional law constitutes a violation of the applicant’s constitutional rights in every case (at [109]). Whether the very existence of an unconstitutional law in the statute books suffices to show a violation of constitutional rights depends on what exactly that law provides (at [94]). The court took pains to emphasise that such a case, though “conceivable”, would be “rare” and “extraordinary”, and cautioned that “no such case has ever been brought to the attention of the courts here” (at [94], [106]).

The court considered certain factors pointing towards a violation of constitutional rights by the mere existence of a law. One of the factors is whether the law specifically targets a particular group: a violation of constitutional rights “may be more easily demonstrated where the law specifically targets a group and the applicant is a member of that group” (at [94]). It was observed, without going into the merits of the challenge, 24 that the impugned section affects the lives of a portion of the community in a very real and intimate way (at [184]).

Another relevant factor is a real and credible threat of prosecution under such a law (at [179]): “Although the existence of a lis is clearer when a prosecution has been brought under an allegedly unconstitutional law, the very fact of a real and credible threat of prosecution under such a law is sufficient to amount to an arguable violation of constitutional rights, and this violation gives rise to a real controversy for the court to determine.”

The threat of prosecution must be real and credible and not merely fanciful (at [111]-[114]). The reason why such a threat may be seen as giving rise to an actual controversy is “that individuals should not be compelled to act against what is, on the face of it, the law, and thereby risk the actualisation of the threat of prosecution” (at [178]). In that case, the court found that the threat of prosecution under the impugned section was not merely fanciful, given that the appellant professes to regularly participate in the kind of conduct criminalised (at [183]).

In the other two cases, no prosecution had been brought against the appellants pursuant to the impugned provisions. Nevertheless, the courts similarly held that the appellant need not wait to be prosecuted in order for an actual controversy to arise before a challenge can be mounted. In Croome (supra), Gaudron, McHugh and Gummow JJ in the High Court of Australia rejected the contentions that the appellants’ claim for a declaration of unconstitutionality was premature and that there was no 25 immediate right or liability to be determined, because the state had not yet invoked legal proceedings to enforce the criminal law against the appellants (at 409, 411). The appellants’ conduct of their personal lives were found to have been overshadowed by the presence of the impugned provisions in significant respects. Moreover, since the state has not disabled itself from prosecuting in the future, it was found that the appellants had a real interest and did not raise a question which is abstract or hypothetical (at 411).

Crucially, the principle that an appellant who has not been prosecuted by an impugned law may challenge its validity is not without limit. Brennan CJ, Dawson and Toohey JJ stressed that they did not assent to the “broad proposition” that any person who intends to act in contravention of a law can seek a declaration that the law is invalid, purely by reason of that intention (at 402).

The same conclusion was reached by the Hong Kong Court of Appeal in Leung (supra). In that case, an argument was raised that the constitutional challenge was based on the “purely hypothetical situation” that the appellant may be prosecuted in the future (at [26]). The court nevertheless held that in view of “exceptional circumstances”, there was sufficient justification to entertain the challenge (at [30]). Notwithstanding the fact that “a prosecution is neither in existence nor in contemplation”, Ma CJHC found it clear that the appellant “and many others like him have been seriously affected by the existence of the legislation under challenge” (at [29]): “It is fair to say that the Respondent has been living under a considerable cloud. The effect of the Respondent’s 26 submissions is really that the constitutionality of the affected provisions can only be tested if the Applicant were to go ahead with those activities criminalized by the provisions in question and be prosecuted for them. In other words, access to justice in this case could only be gained by the Applicant breaking what is according to the statutory provisions in question, the law.”

Again, the requirement of “exceptional circumstances” was emphasised. Such situations cannot be enumerated exhaustively but must be determined on a case by case basis (at [28]). Examples include “situations where it would be undesirable or prejudicial to force interested parties to adopt a wait and see attitude (that is, to force persons to wait until an event occurs) before dealing with a matter” (at [28]).

These principles are not foreign to the Malaysian courts. The proposition that a real threat to a party’s rights can give rise to an actual controversy that is not abstract or academic was recognised by the Federal Court in Datuk Syed Kechik bin Syed Mohamed v Government of Malaysia & Anor [1979] 2 MLJ 101. In that case, in response to an apparent threat to expel him from the state, the appellant sought declarations that he had the right to remain in Sabah. The Federal Court held that the action demonstrated a real dispute and was not academic. Suffian LP held that (at 108): “As the distinguished American scholar, E.M. Borchard on ‘Declaratory Judgments’, 2nd Edition, page 20, referring to those cases where no traditional wrong has yet been committed or immediately threatened, says ‘a condition of 27 affairs is disclosed which indicates the existence of a cloud upon the plaintiff's rights, a cloud which endangers his peace of mind, his freedom and his pecuniary interests...’ … The fact that the declaration was sought before the statutory powers were exercised was not a consideration weighing against the grant of that declaration… we consider that a court should make it possible to settle real disputes immediately they arose, so that the parties may act with certainty and not be under the threat of legal uncertainty and should be able to discount the future.” (emphasis ours)

We consider the situation envisaged - where a constitutional challenge can be brought on the basis of the mere existence of a law - is not technically an exception to the general rule against determining abstract or academic questions without an actual controversy. Rather, such a situation is an exceptional case where, due to certain factors, the existence of the law itself affects the rights of parties and gives rise to an actual controversy.

We find much merit in the reasoning of the cases above. In our model of concrete review, courts would not ordinarily treat the mere existence of a law as an actual controversy suitable for determination. However, in the face of an exceptional law specifically targeted against a minority group, the very existence of which amounts to a real and credible threat to their rights – Holocaust-type laws would be an extreme example – the courts are not obliged to stand idly by until the threat materialised. In the words of Lord Woolf (“Droit Public – English Style”, (1995) Public Law 57 at 68), “If Parliament did the unthinkable, then I would say that the 28 courts would also be required to act in a manner which was without precedent.” Summary

The following principles can be distilled from the discussion above:

(i) The general rule is that the court should not answer questions which are abstract, academic, or hypothetical. This flows from the common law model, under which the role of the court is to adjudicate matters in the context of the facts of the particular dispute before it;

With reference to the basic requirements in section 84 CJA, we note that the questions arose in proceedings commenced by way of Originating Summons in the High Court. The questions concern the effect of constitutional provisions. It is not apparent that there were any questions of fact which were necessary to be determined by the High Court before referring the case to this Court. On the face of it, the basic statutory requirements of section 84 appear to be satisfied. The central issue in this case is how the Federal Court should deal with the special case before us.

In the originating summons and the affidavit in support, the only facts stated by the Plaintiff are that he was imprisoned at the time of the action and that he brought the action as a citizen of Malaysia. The remaining contents of the affidavit were purely legal in nature, relating to the amendment to Article 66(4) of the FC, the enactment of the NSCA, and the alleged inconsistency with the provisions and basic structure of the FC. The Plaintiff did not assert that his rights have been affected by the Amending Provisions or the NSCA. Indeed, no mention was made as to what rights, if any, of the Plaintiff or any other person have been affected or are threatened to be affected by the Amending Provisions or the NSCA.

Whilst we recognise that in principle, the very existence of an allegedly unconstitutional law may in some cases give rise to an actual 30 controversy affecting the rights of the parties, it has not been demonstrated to our satisfaction that the present case falls within that exceptional category. It was not alleged, for instance, that the NSCA is a law specifically targeted at a particular group of which the Plaintiff is a part, nor was it alleged that the Plaintiff faces a real and credible threat of action under the NSCA which would be detrimental to his rights. It has not been shown that the very existence of the NSCA in the statute books interferes with the conduct of the Plaintiff’s personal life or that of any other person, unlike in the cases of Tan Eng Hong (supra), Leung (supra), and Croome (supra) above. The mere assertion that the statute exists and that the Plaintiff is a citizen, without more, is insufficient to give rise to an actual controversy.

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. 31

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.

We note that several guidelines in respect of references to the Federal Court under section 84 CJA were formulated by the Court of

Appeal in Wee Choo Keong v Lee Chong Meng & Anor [1996] 3 MLJ Our decision does not turn on those guidelines. In view of the abstract nature of the questions and the absence of an actual controversy, it is not necessary to examine the scope and correctness of those guidelines for the purposes of this case.

Based on the foregoing, under the powers available to the Federal Court in section 84 of the CJA, we would decline to answer the constitutional questions posed. In view of the particular circumstances of this case, we therefore remit the case to the High Court. NALLINI PATHMANATHAN Judge Federal Court Malaysia Dated: 11 February 2020 Signed 32 Counsel for the Appellant: Datuk Seri Gopal Sri Ram, Leela Jesuhasan, Emily Wong, How Li Nee, Raveena Kaur (Chambers of Leela J) Counsel for the Respondent: Alice Loke Yee Ching SFC, Suzana Atan SFC, Narkunavathy Sundareson SFC (Attorney General’s Chambers)