Matters of national security are for the executive to decide, not for the court to scrutinise


BASED on reports, the grounds for the decision of the high court on Thursday (September 17) to dismiss an application for a judicial review by taxi driver V. Balamurugan to delist the Liberation Tigers of Tamil Ellam (LTTE) as a terrorist group are sketchy, but the decision appears to be in accordance with the law.

Balamurugan sought for, among others, a certiorari order to quash the listing of LTTE in the Gazette dated November 12, 2014.

The home minister is duly empowered under the Section 66B of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act (Act 613) to declare, by order published in the gazette, an entity to be a specified entity.

A specified entity, by definition of Section 130B of the Penal Code, is a terrorist group.

Under section 66B(6) of Act 613, however, a specified entity may, within sixty days of publication of the order in the gazette, make an application in writing to the home minister for the revocation of the order.

Since the sixty days have long passed, Balamurugan’s application is rightly dismissed. Importantly, since it is the specified entity (LTTE) who may apply for revocation of the order, the application is rightly also dismissed as Balamurugan has no locus standi to file the application.

Locus standi – or standing to bring an action for a declaration in public law – is a matter of pure practice that is entirely for the courts to decide. Courts of some countries adopt a fairly lenient stance, while others insist on a stricter approach.

According to the then Court of Appeal judge Gopal Sri Ram, “when our courts come to decide whether to grant standing to sue in a particular case, they must be extremely cautious in applying decisions of the courts of other countries because the reasons for granting or refusing standing in those other jurisdictions may depend upon the wider considerations” peculiar to a particular national ethos. (see Ketua Pengarah Jabatan Alam Sekitar & Anor v Kajing Tubek & Ors And Other Appeals [1997] 3 MLJ 23)

The courts, through the years, have also recognised that certain issues are, by their very nature, unsuitable for judicial examination. Matters of national security or of public interest are such matters which are ill-suited for scrutiny by the courts.

It has been said that where it concerns a matter of national security, which is entirely the responsibility of the government, the courts should not intervene. The judicial process is unsuitable for reaching decisions on national security.

In other words, the executive, by virtue of its responsibilities, has to be the sole judge of what the national security requires. (see Mohamad Ezam Bin Mohd Noor v Ketua Polis Negara & Other Appeals [2002] 4 MLJ 449, per Chief Judge of Sabah and Sarawak Steve Shim)

But let it be known that although a court would not question the executive’s decision as to what national security requires, the court would nevertheless examine whether the executive’s decision was in fact based on national security considerations. – September 18, 2020.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.


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