Topic Overview

 The Judiciary in Malaysia and its role

 Constitutional Interpretation and its significance
 General Principles of Constitutional Interpretation
 Local Case Law on Constitutional Interpretation
 The Influence of Local Circumstances
 Attitudes towards cases from other jurisdictions
 The role of constitutional conventions
 The Basic Structure Doctrine
 Judicial Power and the Courts
 The Judiciary is established in Part IX (Arts 121-131) of the Federal
Constitution.

 In the tripartite separation of powers housed within the Federal

Constitution, the judiciary holds ‘the judicial power of the Federation’ (Art
121(1)

 This is the counterpart of ‘the executive authority of the Federation’ (Art 39)
and ‘the legislative authority of the Federation’ (Art 44).

 Besides Part IX, the judiciary is also principally regulated by:

 Courts of Judicature Act 1964
 Subordinate Courts Act 1948
 Judicial Power
 ‘Judicial power’ is “the power every sovereign state must of necessity have to
decide controversies between its subjects or between itself and its subjects,
whether the rights relate to life, liberty, or property.”
 Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Anor [2017] 3
MLJ 561, para 59.
 See also Dato’ Seri Anwar Ibrahim v Public Prosecutor [2011] 1 MLJ 158, 237.

 Judicial power connotes “the power to examine questions submitted for

determination with a view to the pronouncement of an authoritative
decision as to the rights and liabilities of one or more parties.”
 Public Prosecutor v Dato’ Yap Peng [1987] 2 MLJ 311, 317

Court can decide on things that is unclear Reason of amendment

 Judicial power can be exercised when a dispute of a legal nature is
submitted to a court of competent jurisdiction for determination in
accordance with the applicable rules of court, or when a constitutional
question is referred to the Federal Court under Article 130 FC.
Judge struck down the amendment of ag that it is court power and
 The Constitutional Role of the Judiciary
 As the ‘ultimate arbiter of the lawfulness of state action’ – Indira
Gandhi v Pendaftar Jabatan Agama Islam Perak & 2 Ors [2018] 1 MLJ 545;
see also Pengarah Tanah & Galian Wilayah Persekutuan v Sri Lempah
Enterprise [1979] 1 MLJ 135 per Raja Azlan Shah Ag CJ (as HRH then was):
“the courts are the only defence of the liberty of the subject against
departmental aggression.”

 Upholding the rule of law: Public Prosecutor v Datuk Harun bin Idris &
Ors [1976] 2 MLJ 116 – “the Court stands as arbiter in holding the balance
between individuals and between the State and the individual, and will not
have the slightest hesitation to condemn and strike down … any legislative
refuge for the exercise of naked arbitrary power in violation of any of the
provisions of the Constitution.”
 The Constitutional Role of the Judiciary
 To be the guardian of the Constitution and the liberties and principles
secured therein: Lim Kit Siang v Dato’ Seri Dr Mahathir Mohamad [1987] 1
MLJ 383 per Salleh Abas LP:
“When we speak of government it must be remembered that this comprises three
branches, namely the legislature, the executive and the judiciary. The courts have a
constitutional role to perform and they are the guardian of the Constitution within
the terms and structure of the Constitution itself; they not only have the power of
construction and interpretation of legislation but also the power of judicial review –
a concept that pumps through the arteries of every constitutional adjudication and
which does not imply the superiority of judges over legislators but the Constitution
over both” (p 386)

 In R (on the application of Miller & Anor) v Secretary of State for Exiting the
European Union [2017] UKSC 5 the UK Supreme Court has recently held:
In the broadest sense, the role of the Judiciary is to uphold and further the rule of law; more
particularly, judges impartially identify and apply the law in every case brought before the
courts. (para 42)
 Judicial Power of the Federation:
Art. 121(1), pre- and post-1988
121. Judicial power of the Federation
(1) Subject to Clause (2), the judicial power of the Federation shall be vested in There shall be
two High Courts of co-ordinate jurisdiction and status, namely-
(a) one in the States of Malaya, which shall be known as the High Court in Malaya ... ; and
(b) one in the States of Sabah and Sarawak, which shall be known as the High Court in Borneo ... ;
and in such inferior courts as may be provided by federal law; and the High Courts and inferior
courts shall have such jurisdiction and powers as may be conferred by or under federal law.

(1A) The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within
the jurisdiction of the Syariah Courts.
Argue that it is constitutional to amend such
(2) The following jurisdiction shall be vested in There shall be a court which shall be known as
the Supreme Court ... and the Supreme Court shall have the following jurisdiction, that is to say:
(a) jurisdiction to determine appeals from decisions of a High Court or a judge thereof;
(b) such original or consultative jurisdiction as is specified in Articles 128 and 130; and
(c) such other jurisdiction as may be conferred by or under federal law.
 Judicial Power and the Courts
 Did the constitutional amendments of 1988 have the effect of deleting the
judicial power of the Federation from the Federal Constitution?
 Kok Wah Kuan v Public Prosecutor [2007] 5 MLJ 174 (Court of Appeal, per Gopal Sri
Ram JCA); Public Prosecutor v Kok Wah Kuan [2008] 1 MLJ 1 (Federal Court)
 Semenyih Jaya v Pentadbir Tanah Daerah Hulu Langat
 Indira Gandhi v Pendaftar Jabatan Agama Islam Perak
 Maria Chin Abdullah v Ketua Pengarah Imigresen (2021)

 Is ‘the judicial power of the Federation’ part of the basic structure of the
Constitution? Consider its relationship to:
 The rule of law
 Supremacy of the Constitution
 Separation of powers
 Independence of the judiciary

 Privy Council: The concept that judicial power is vested exclusively in the
Judiciary is implicit in the very structure of a constitution drafted on the
‘Westminster model’ whether or not such a vesting is expressly stated: Hinds v
The Queen [1977] AC 195; Liyanage v R [1967] 1 AC 259.
 Indira Gandhi a/p Mutho (Fed Ct, 2018)
 Under Art 121(1), the judicial power of the Federation continues to be vested
exclusively in the High Courts, and the jurisdiction and powers of the
courts cannot be confined merely to ‘federal law’.
 The courts will continue to be engaged, inevitably (by virtue of their roles
and functions) in the interpretation and enforcement of all sources of law
recognized by our legal system.
 Judicial power (in particular the power of judicial review) is part of the basic
structure of the Constitution. Set out in how a country should be
 The basic structure of the Constitution cannot be abrogated by Parliament
through the power of constitutional amendment.
 Judicial power cannot be removed from the High Courts.
 Judicial power cannot be conferred on bodies other than the Courts unless
these bodies comply with the safeguards for judicial independence
provided for in Part IX – but see also the later case of JRI Resources Sdn Bhd
v Kuwait Finance House [2019] 3 MLJ 561.
Hierarchy of Civil Courts in Malaysia
Federal Court
Palace of Justice, Putrajaya

Court of Appeal
Palace of Justice, Putrajaya

High Court in Malaya High Court in Sabah & Sarawak

Various cities in W. Malaysia Various cities in E. Malaysia

Sessions Court
Major districts nationwide

Superior Magistrate’s Court

courts Nearly every district nationwide

Subordinate Penghulu’s Court

courts Mukim
 Other Judicial Bodies
Courts of specific jurisdiction:
 The Special Court
 The Court for Children

Specially designated Sessions, Magistrates and High Courts:

 Anti-corruption Courts
 Special Courts for Illegal Immigration Cases (PATI)
 Intellectual Property Courts
 Environmental Court

Quasi-judicial bodies:
 Industrial Court
 Consumer Claims Tribunal
 Housebuyer Claims Tribunal
 The Dimensions of ‘Jurisdiction’
Coa only appellate
To satisfy the judgement Federal ori on 128 133
Original
Revisionary /
Appellate
Supervisory
Supervise government and subordinate out

Art 42 on pardon cases

Jurisdiction

Local Monetary
Jurisdiction Jurisdiction
Trial
Jurisdiction
 The Malaysian Court System
 The superior courts (the Federal Court, the Court of Appeal and the High
Court) are specifically established by the Federal Constitution
 Art.121(2) establishes the Federal Court. Its composition is regulated by Art.122
 Art.121(1B) establishes the Court of Appeal, whose composition is regulated by
Art.122A.
 Art.121(1) establishes the two High Courts of co-ordinate jurisdiction.
 The superior courts are regulated by the Courts of Judicature Act 1964.
 The CJA has a special status compared to other legislation as provided for in
s.4 – in the event of inconsistency or conflict with any other written law
other than the Constitution, the provisions of this Act shall prevail.
 The subordinate courts (the Sessions Courts and the Magistrates’ Courts)
are established pursuant to the general power provided for under Art.121(1),
and the enabling federal legislation is the Subordinate Courts Act 1948.
 The procedure applicable in both the superior and subordinate courts is
provided in the Rules of Court 2012.
 Key Constitutional Provisions
 Establishment of the two High Courts – Art 121(1) Set out judicial power
 Exclusion of jurisdiction in matters within the jurisdiction of the Syariah
Courts – Art 121(1A)
 Establishment of the Court of Appeal (1994 – present) – Art 121(1B)
 Establishment of the Federal Court – Art 121(2)
 Local jurisdiction of the High Courts extends throughout the Federation –
Art 121(3)
 Judges over the retirement age of 66 may be appointed on contract to the
Federal Court – Art 122(2) – see controversy regarding the ‘reappointment’
of Tun Mohd Raus Sharif as Chief Justice in 2017.
 Judicial Commissioners (contract Judges) may be appointed to the High
Courts – Art 122AB
Art 401a pm advise ydpa so pm choosing
 Appointment process of judges – Art 122B(1)-(4); Judicial Appointments
Commission Act 2009 – note this process is purely statutory
 Qualifications to be a judge of the superior courts – Art 123 Badaria case
Judicial appointments commission is not in fc 122ab1
Art 40 1 a advise of pm same status of hc other than secure of tenure
 Behaving bad
Make statement influence court
Scandalize the court
Key Constitutional Provisions
Safecourt
 Security of tenure for judges of the superior guard
– Art 125(1)-(2)
 Security of remuneration for judges of the superior court – Art 125(6)-(7);
Judges’ Remuneration Act 1971
1998
 Removal process of judges is by way of tribunal – Art 125(3)-(5)
 Exclusive original jurisdiction of the Federal Court – Art 128(1)
 Advisory jurisdiction of the Federal Court – Art 130
 The superior courts have power to punish for contempt – Art 126
 Restriction on Parliamentary discussion of the conduct of a Judge – Art 127
 Judges must affirm an oath to “preserve, protect and defend” the Constitution –
Art 124(1); Sixth Schedule
 Judges of the superior court can exercise the powers of judges of a lower court
within the Judiciary – Art 125A(1)
 Judges of the superior courts may preside in courts at their level and one level
higher – Art 122(2); Art 122A(2).
 A High Court Judge cannot sit in the Federal Court - Dato' V Kanagalingam v
David Samuels & Ors [2006] 6 MLJ 521 (HC)
 The Malaysian Court System
 The Special Court is a sui generis court specifically established and
governed by Art.182 FC.
 The Court for Children is a type of subordinate court established and
governed by the Child Act 2001.
 The Syariah Courts are established under State Law pursuant to the Ninth
Schedule, List II of the Constitution.
 Art.121(1A) FC establishes that the civil courts shall have no jurisdiction in
respect of any matter within the jurisdiction of the Syariah courts.
 The Judiciary (judges at High Court level and above) is supported
administratively and in some judicial roles by legally-trained officers of the
Judicial & Legal Service (JLS). Officers of the JLS also staff the subordinate
courts as Magistrates and Sessions Court Judges – on the implications of
this see Cheak Yoke Thong v PP [1984] 2 MLJ 119.
 The Malaysian Court System
 The High Court is vested with the power of judicial review under s.25(2)
and the Schedule to the Courts of Judicature Act 1964. This power may
also be traceable to the supremacy clause, Article 4(1) – see Dhinesh
Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] 5 CLJ 1.

 Apart from its ordinary roles of interpreting laws, adjudicating civil

disputes and punishing crimes, the courts in the Malaysian
constitutional system have the following roles:
 Interpreting the codified constitution
 Enforcing constitutional supremacy
 Reviewing the legality of executive action by way of judicial review
 Protecting the federal system by adjudicating disputes between the Federation
and the States, or between the States
 Safeguarding the fundamental rights secured by the Constitution
 Constitutional Interpretation
 Interpreting a constitution is not the same as interpreting an ordinary statute,
as it involves the application of sui generis principles to the supreme law of the
land.

 Constitutional provisions are often formulated in an open-textured, vague or

even contradictory fashion. This is because a Constitution embodies a myriad
of values, philosophies and principles that make up the legal bedrock of the
nation.

 Furthermore, the meaning of a constitutional text is often influenced by

convention, history, tradition and the original intention of the framers.

 A Constitution attempts to lay out a set of rules and principles that embody the
spirit of the nation for generations to come. This is unlike an ordinary statute,
which is usually framed for a specific purpose at a specific point in time.
 Broad Approaches in Constitutional
Interpretation
 Judicial approaches towards constitutional interpretation draw judges into the
perennial debate as to whether the constitution is to be read in light of the
original intention behind these provisions, or whether a “living” or
“progressive” approach is to be preferred.

 Judges who choose the “progressive” approach risk being accused of effectively
exercising legislative power and “straying beyond their legal expertise into the
realm of politics.” (J. Goldsworthy, 2006).

 A literalist/originalist approach however may be unduly conservative, as it

neglects/refuses to take into account developments since the time the
constitution was written.
Principles of Constitutional Interpretation
 The Malaysian Constitution is based on the Westminster model. Several
important decisions of the Privy Council (before appeals to the PC were
abolished) have laid out the proper role of the courts in interpreting such a
constitution. E.g. Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50

 In Malaysia, the Federal Constitution does not itself lay out the principles
by which it is to be interpreted. It does however contain:
 An Interpretation clause (art 160)
 The Eleventh Schedule – setting out provisions of the then Interpretation
Ordinance 1948 which apply to the interpretation of the Federal Constitution

 The Interpretation Acts 1948/1967 may also be referred to in interpreting

the Constitution, although as ordinary legislation, it cannot prevail in the
event of a clear conflict with the provisions of the Constitution.
Principles of Constitutional Interpretation
 The Federal Constitution is similar in content and structure to the Indian
Constitution, but the Malaysian judiciary have at times been hesitant to
adopt decisions from India regarding constitutional interpretation. Eg in
Karam Singh v Minister for Home Affairs [1969] 2 MLJ 129 Ong Hock Thye
CJSS described Indian judges as “indefatigible idealists seeking valiantly to
reconcile the irreconcilable whenever good conscience is pricked by an
abuse of executive powers.”

 Harding (p.205) and Shad Saleem Faruqi (p.634-636) argue that the
Malaysian judiciary has not always been consistent in its methods of
constitutional interpretation, and constitutional issues are not necessarily
seen as entirely separate from other areas of law e.g. administrative law,
criminal law and property law.
Principles of Constitutional Interpretation
 In Malaysia, the Federal Constitution is also the product of Agreements
between previously sovereign states.
 Federation of Malaya Agreement 1957
 Malaysia Agreement 1963

 Accordingly, it should also be construed in light of the principles applicable

to the interpretation of treaties: Government of the State of Kelantan v
Government of the Federation of Malaya & Tunku Abdul Rahman Putra al-
Haj [1963] MLJ 355.

 The status of provisions in intergovernmental agreements and the Malaysia

Agreement 1963 which influenced the formation of the current Federation,
but which have not been expressly incorporated into the Federal
Constitution, is still in doubt - TR Sandah ak Tabau & Ors v Director of
Forest, Sarawak & Anor and other appeals [2019] 6 MLJ 141 (see in particular
the dissenting judgment of David Wong CJSS).
Principles of Constitutional Interpretation
 A constitution should be construed with less rigidity and more
generosity than ordinary statutes; Nik Hashim FCJ in Badan Peguam
Malaysia v Kerajaan Malaysia [2008] 2 MLJ 285, reaffirming the decisions in
Minister of Home Affairs v Fisher [1980] AC 319 (Privy Council) and Dato’ Yap
Peng v PP [1987] 2 MLJ 311; Lee Kwan Woh v PP [2009] 5 MLJ 301.

 The Constitution must be interpreted within its own four walls. This
means that the provisions of the Constitution must be interpreted in view of
the entire document and the prevailing circumstances in Malaysia. “Context
must determine content”; see Loh Kooi Choon v Government of Malaysia [1977]
2 MLJ 187 per Raja Azlan Shah FCJ (as HRH then was).
 Foreign decisions are not binding although they may be of persuasive value.
Government of Kelantan v Government of the Federation of Malaya And Tunku Abdul
Rahman Putra Al-Haj [1963] MLJ 355
 Decisions of the US Supreme Court on that country’s Bill of Rights are of little help in
construing provisions of modern Commonwealth constitutions which follow broadly
the Westminster model; Ong Ah Chuan v PP [1981] 1 MLJ 64 (Privy Council, per Lord
Diplock).
Principles of Constitutional Interpretation
 The Constitution should be interpreted broadly. The general
assumption will be that the framers of the Constitution intended their
words to be of broad application; PP v Datuk Harun bin Idris [1976] 2 MLJ
116 (HC).
 The Constitution is not to be construed in a narrow, pedantic sense;
Merdeka University Bhd v Government of Malaysia [1981] 2 MLJ 356, Dato
Menteri Othman bin Baginda & Anor v Dato Ombi Syed Alwi [1981] 1 MLJ 29
(FC)
 There is a presumption of the constitutional validity of statutes. When
a statute is reviewed for incompatibility with the Constitution, the
Legislature is presumed to know what it is doing and the courts will lean in
favour of an interpretation that renders the statute compatible with the
Constitution (Harding, p.206, Public Prosecutor v Dato’ Yap Peng [1987] 2
MLJ 311, p.327, Public Prosecutor v Pung Chen Choon [1994] 1 MLJ 566).
Principles of Constitutional Interpretation
 The ordinary rules and presumptions of statutory interpretation do
not necessarily apply to Constitutional interpretation; Tun Datu Haji
Mustapha bin Datu Harun v Tun Datuk Haji Mohamad Adnan Robert &
Anor [1986] 2 MLJ 420.
 Historical background and context (in particular the drafting
documents of the Reid Commission) can be taken into account as
aids to constitutional interpretation; Dato Menteri Othman bin Baginda
(above); East Union (Malaya) Sdn Bhd v Government of Johore & Anor [1981]
1 MLJ 151
 The courts in exercising their interpretative jurisdiction can have
regard to international treaties and conventions which Malaysia has
ratified, provided this does not conflict with the provisions of the
Federal Constitution: Mohamad Ezam bin Mohd Noor v Ketua Polis
Negara & Other Appeals [2002] 4 MLJ 449; Muhammad Hilman bin Idham
& Ors v Kerajaan Malaysia & Ors [2011] 6 MLJ 507.
Principles of Constitutional Interpretation
 Although the Federal Court has the power to depart from its previous
decisions and those of its predecessors, this power should be used
only sparingly; Dalip Bhagwan Singh [1998] 1 MLJ 1. In questions of
constitutional interpretation, it is essential for the apex court (in Malaysia,
the Federal Court) to have the freedom to re-interpret the Constitution if
necessary in light of changing needs and circumstances.
 A constitution “embodies an agreement between representatives of
the various shades of political opinion in the state as to the structure
of government”; per Lord Diplock in Hinds v The Queen [1977] AC 195
(Privy Council)
 The absence of express words does not preclude the effect of
constitutional principles such as the separation of powers; Alma Nudo
Atenza v Public Prosecutor [2019] 3 AMR 101 (Federal Court).
 Case Law
 Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187 – the courts will
give primacy to the written text of the Federal Constitution. Raja Azlan Shah
FCJ (as HRH then was) stated that “it is in the end the wording of our
Constitution itself that is to be interpreted, and this wording cannot be
overridden by the extraneous principles of other constitutions.”
 Dato Menteri Othman bin Baginda & Anor v Dato Ombi Syed Alwi [1981] 1 MLJ
29 (FC) – judicial precedent plays a lesser part in constitutional
interpretation than in matters of ordinary statutory interpretation. A
constitution is sui generis, calling for its own principles of interpretation
without necessarily adopting the ordinary rules and presumptions of statutory
interpretation. Its provisions must be construed broadly and not in a
pedantic way.
 Merdeka University Berhad v Government of Malaysia [1981] 2 MLJ 356 – The
Constitution is not to be construed in a narrow or pedantic sense, but that
does not mean the court is at liberty to stretch or pervert the language of
the Constitution in the interests of any legal or constitutional theory.
 Case Law
 Palm Oil Research and Development Board v Premium Vegetable Oils Sdn
Bhd [2005] 3 MLJ 97 – it is the solemn duty of the courts to interpret the
fundamental rights provisions “prismatically”, so as to give citizens the full
value and benefit of these rights (per Gopal Sri Ram JCA).
 Although a purposive approach should ordinarily be preferred, textualist
approaches have been applied in the cases of Stephen Kalong Ningkan v Tun
Abang Haji Openg [1966] 2 MLJ 187 and Datuk Nizar bin Jamaluddin v
Datuk Seri Zambry bin Kadir [2010] 2 MLJ 285.
 An ongoing debate is to whether the 1988 amendments to Article 121(1) FC
can be interpreted purposively with regard to the “judicial power of the
Federation”, or whether the courts are bound by the limits of federal law as
provided for in the post-amendment Art.121(1). On this see PP v Kok Wah
Kuan [2008] 1 MLJ 1 (FC), in particular the dissenting opinion of Richard
Malanjum CJSS.
 Case Law
 In Sivarasa Rasiah v Badan Peguam Malaysia [2010] 2 MLJ 333 the plaintiff
challenged s.46A of the Legal Profession Act 1976, which barred office
holders in political parties from being elected to the Bar Council, as being
unconstitutional for violating his Art.10 freedom of association.
 The Federal Court held that the restrictions imposed were justified, as
public morality warranted restraining any development that would cause
suspicion that the independence and integrity of the Bar Council had been
compromised.
 However, under what it has called “a prismatic approach to constitutional
interpretation”, the Federal Court held that the permissible restrictions on
constitutional rights have to be interpreted restrictively.
 The Influence of Local Circumstances
 Local circumstances are of particular importance when a court is
interpreting provisions of the constitution relating to fundamental liberties.
 Such liberties can be weighed against competing interests in the form of
others’ rights, non-constitutional interests and community interests.
 Hong Leong Equipment Sdn Bhd v Liew Fook Chuan [1996] 1 MLJ 481: “Our
courts should adopt an approach that is best suited to our own needs and
values, paying such respect as is due to the approach adopted by the courts
of countries whose values upon particular subjects may be at variance with
our own.”
 There have been cases such as Tan Tek Seng in which the Courts were
prepared to adopt a wide and purposive interpretation of the right to life.
 Also, in Dewan Undangan Negeri Kelantan v Nordin bin Salleh [1992] 1 MLJ
697 Edgar Joseph Jr SCJ held that “whenever legally permissible the
presumption must be to incline the scales of justice on the side of the
fundamental rights guaranteed by the Constitution”.
 Attitude towards Cases from Foreign Jurisdictions
 The “four walls” approach to constitutional interpretation was laid out early
on by Thomson CJ in the then Court of Appeal, Malaya in the Government
of Kelantan v Government of the Federation of Malaya case (above).
 Foreign case law is not legally binding but only persuasive.
 There is a special position, however, for cases from India. The general rule is
that decisions from the superior courts in India, particularly the Indian
Supreme Court, are especially persuasive but not binding, in the sense
that our courts may depart from these if they can find good reasons for
doing so. This is due to the close historical link between the Indian and
Malaysian constitutions (although in reality there are substantial
differences between the two).
 In Yeap Hock Seng v Minister for Home Affairs [1975] 2 MLJ 279,
Abdoolcader J (as he then was) held that as the Malaysian constitutional
system has been primarily drawn from Indian sources, decisions of the
Indian superior courts are “of great persuasive authority here”, “are entitled
to the highest respect”, and “will normally be followed unless the court has
cause to disagree with the reasoning.”
Attitude towards Cases from Foreign Jurisdictions
 This was the position taken earlier by the Federal Court in Karam Singh
(1969, above) where Ong CJSS made his (in)famous “indefatigible idealists”
remark. Although both he and Suffian LP emphasised that decisions of the
Indian Supreme Court “are of great persuasive value”, on the facts of Karam
Singh they preferred to follow a contrasting decision of the English Court of
Appeal.
 In Attorney-General v Manjeet Singh Dhillon [1991] 1 MLJ 167 the Supreme
Court referred to the different social conditions in this country, as
compared to England, in upholding the defendant’s conviction for
contempt of court despite the existence of precedents from other
jurisdictions to the contrary.
 In Kok Wah Kuan v Pengarah Penjara Kajang [2004] 5 MLJ 193 the High
Court held that decisions from England applying the European Convention
on Human Rights cannot generally be implanted in Malaysia without “the
High Court indulging in the exercise of re-writing legislation.”
 The Role of Constitutional Conventions
 In the UK, a constitutional convention are rules of constitutional behaviour
that have become accepted as binding by the constitutional actors involved,
but without the rule ever being codified in statute or becoming part of the
common law.

 Conventions are thus unenforceable in court, but may provide guidance in

constitutional interpretation; Reference Re Amendment of the Constitution
of Canada (1982) 125 DLR (3d).

 Conventions may also give rise to enforceable legal obligations even though
they cannot themselves be enforced directly in court: Attorney-General v
Jonathan Cape [1975] 3 All ER 484.

 As Malaysia has a comprehensive written constitution, there is generally

little scope for constitutional conventions to operate, as compared to the
case of the British Constitution.
 The Role of Constitutional Conventions
 Conventions can however be taken into account in interpreting the
meaning of constitutional provisions, or in filling lacunae on which the
Constitution is silent.

 However, it is important to bear in mind that conventions, by their very

nature, are not binding on the courts and the courts may, if they wish,
prefer to adopt a different interpretation of what the Constitution requires
in the particular instance.

 The most obvious example of a constitutional convention in Malaysia is the

formation of a caretaker government following the dissolution of Parliament
for general elections, whereby the government in office immediately before
the dissolution continues in a ‘caretaker’ capacity – this is not provided for
in the Federal Constitution, but has been an unbroken practice that serves a
practical purpose. Another possible convention is that the Cabinet shall be
formed with representatives of all the major ethnic groups in Malaysia.
 The Role of Constitutional Conventions
 It is also important to first establish that the alleged convention is indeed a
convention. This is done by reference to Jennings’ three-stage test:
(1) Has the practice been consistently observed before;
(2) Did the actors in the precedents believe themselves to be bound by the rule;
(3) Is there a good reason for the rule?
 The possible application of conventions in Malaysia was discussed by Tan Chiaw
Thong J in the Tun Datu Haji Mustapha bin Haji Harun case (above). In that case
although the learned Judge accepted that conventions could plausibly be used as aids
to interpretation, in this case the Westminster convention had no application due to
its obvious conf lict with the written provisions of the Constitution of Sabah.
 In Datuk Amir Kahar Tun Mustapha v. Tun Mohamed Said Keruak [1994] 3 MLJ 737, a
member of the PBS Cabinet in Sabah challenged the dissolution of the Pairin-led
Cabinet upon the defection of numerous PBS Assemblymen to the BN. There had
been no motion of no confidence or defeat of a government bill in the Assembly.
 The Court, in upholding the dissolution, referred to the constitutional convention
that a Cabinet is dissolved upon its losing the confidence of the Assembly, with or
without a vote of no confidence in the Assembly.
 The Doctrine of Severability
 Holds that where a law contains provisions that are partly constitutional and
partly unconstitutional, and it is possible to ‘sever’ the unconstitutional part/s of
the law from the rest, then the Court will do so and uphold the constitutionality
of the rest of the law.
 In other words – a law does not become unconstitutional in its entirety simply
because it contains one or more provisions that are shown to be
unconstitutional. The Court will declare the unconstitutional parts void and
uphold the rest.
 This principle has been applied in numerous cases:
 Semenyih Jaya v Pentadbir Tanah Daerah Hulu Langat [2017] – the Federal
Court struck down s.40D of the Land Acquisition Act 1960 but maintained
the rest of the Act.
 Nik Nazmi bin Nik Ahmad v Public Prosecutor [2014] – s.9(5) of the Peaceful
Assembly Act 2012 was ‘severed’ from the rest of the Act and declared
unconstitutional as it violated art 10(1) of the Federal Constitution.
 The Doctrine of Severability
 If a provision of ordinary law can be interpreted in a way that is constitutional
and also another way that would make it unconstitutional, the court will lean in
favour of the former (maintaining the constitutionality of the law): Public
Prosecutor v Pung Chen Choon [1994] 1 MLJ 566 (Federal Court). The courts will
presume (unless the contrary is shown) that Parliament intends to act in
accordance with the Constitution: Marathaei d/o Sangulullai v Syarikat JG
Containers Sdn Bhd [2003] 2 MLJ 337 (CA).

 Where the provisions of a law are wide enough to impose measures that are
both within and beyond constitutional limits, then it is not possible to apply
the doctrine of severability: Pung Chen Choon (above). The entirety of that
provision must be struck down. See also Public Prosecutor v Dato’ Yap Peng
[1987] 2 MLJ 311.
 Other Principles in Determining
Constitutionality of Ordinary Law
 The burden is on the party seeking to question the constitutionality of a provision
to show how and why it is unconstitutional: Mat Shuhaimi Shafiei v Public
Prosecutor [2014] 2 MLJ 145; Public Prosecutor v Azmi bin Sharom [2015] 6 MLJ 751.
 A court will try to maintain the constitutionality of ordinary law to the extent
possible, and should only strike it down as unconstitutional as a last resort: Bato
Bagi & Ors v Kerajaan Negeri Sarawak [2011] 6 MLJ 297.
 Doctrine of pith and substance: In determining whether a legislature
(Parliament or the State Legislative Assembly) has made laws that trespassed into
the legislative powers of the other, it is the substance of the legislation and not its
form or outward appearance which must be considered. If it is ‘in pith and
substance’ within the legislative competency of the other, then the court must
declare accordingly and strike it down: Mamat bin Daud v Government of Malaysia
[1988] 1 MLJ 119; Gin Poh Holdings v Government of Penang [2018] 3 MLJ 417.
 Other Principles in Determining
Constitutionality of Ordinary Law
 Doctrine of colourable legislation: If a legislature (either Parliament or the State
Assemblies) uses indirect means to do something the Constitution does not allow
it to do (either because it infringes fundamental liberties or trespasses into the
legislative powers of the other) then the legislation resulting is called colourable
legislation; it is unconstitutional, and the Courts can declare this
unconstitutionality.

 Example - Mamat bin Daud v Government of Malaysia [1988] – a Federal Act

purported to be a law on ‘public order’ but in reality regulated matters relating to
the Islamic religion (which is within the legislative competency of the States).