Thursday, December 10, 2015

Law expert, ex-top judge says NSC bill should be challenged

Hafiz Yatim  

A law professor and a former Court of Appeal judge both said today that the highly controversial National Security Council bill which was tabled and passed by Parliament in less than a day should have provisions to safeguard a legal challenge.

Professor Emeritus Shad Saleem Faruqi and Mohd Hishamudin Mohd Yunus opined that anyone could challenge the legality of the bill.

Shad Saleem said the NSC bill was just an ordinary law but unlike other security laws which were passed under the purview of Article 149, the NSC Act did not go through Article 149 or 150 of the federal constitution.

“The NSC bill is against human rights but it is an ordinary law. However, as in (other security laws) it should be passed under Article 149.

“It does not have the 149 law or clause in it where such laws are passed as a result of subversion (in defining what is subversion),” he said.

“This law is very dangerous as it is not open to judicial review on its constitutionality. But I do not know why they are passing it,” he said of the legislature's action last week.

While a decision by the NSC chaired by the prime minister cannot be challenged, Shad Saleem said in issues of constitutionality, judges cannot be excluded from hearing the matter.

He said in any judicial review, anyone could challenge a decision which has been made.

Shad Saleem, who teaches at Universiti Teknologi Mara, said if the NSC law said it could not be challenged, a person should file a challenge anyway.

“If any decision has been made by the NSC, a judicial review (of that decision) cannot be excluded.

“In a country where there is rule of law, judges must have the right to enforce the constitution,” the law expert said.

Hishamudin who retired last September, is also of the view that there are no safeguards with regards to the bill and hence, also suggested that it should be challenged in a court of law.

“The NSC certainly undermines the position of the constitution.

“Such provisions which bar challenges should not be there. If you take out the court's jurisdiction, then where are the safeguards (against such laws),” he said.

He added that despite the obvious provisions of challenging the NSC decision not being there, nevertheless a challenge on its constitutionality should be made.

Reservations expressed
The clock had to be stopped when the NSC bill was passed on the final day of the Dewan Rakyat on Dec 3.

Many quarters including the Bar Council and Suhakam have expressed reservations about the bill which they deemed as having serious effects on fundamental liberties.

Article 149 of the Federal Constitution concerns legislation against subversion and action prejudicial to public order where this provision should be cited in any proposed bill to be formulated in order to come-up with preventive or subversion law.

Unlike the Security Offences (Special Measures) Act 2012 which cites Article 149 as Shad Saleem pointed out, the NSC bill does not.

Subversion is defined as in the categories below:

  • a substantial number of citizens to cause fear, organised violence against persons or property;

  • to excite disaffection against the Yang di-Pertuan Agong or any government in the federation;

  • to promote feelings of ill-will and hostility between different races or other classes of the population likely to cause violence;

  • to procure the alteration, otherwise than by lawful means, of anything by law established;

  • which is prejudicial to the maintenance or the functioning of any supply or service to the public or any class of the public in the federation which is prejudicial to public order in, or the security of the federation.

1 comment:

Winston Yap said...

“This law is very dangerous as it is not open to judicial review on its constitutionality. But I do not know why they are passing it,” he said of the legislature's action last week. - End of quote

They passed it because with it they can cover ther sky with one finger.
It's that simple.
Doesn't take a lawyer to understand.