Access to Justice and the Constitution’s Basic Structure

Judicial protection for freedom of religion

If religious freedom is a human right, it is only meaningful if the courts can protect the right-holders. Victims whose rights are violated must be allowed to access a range of judicial remedies. If they cannot bring complaints of violations to the courts or if the courts are unable or unwilling to rule on the complaints, the right in article 11 of the Federal Constitution is a dead letter.

For some time now, the Malaysian courts have grappled with access to justice: Is it an immutable right in the Constitution that cannot be removed or restricted? Or is it subject to what Parliament grants or allows?

In 2003, the Court of Appeal’s landmark judgment explicitly recognised that access to justice is an integral part of article 8(1) (Kekatong v Danaharta). The Federal Court reversed the decision. It held that Parliament may by federal law restrict the courts’ jurisdiction and powers (Danaharta v Kekatong). The Court of Appeal’s broader reading of article 8(1) is consistent with international rights norms stipulating that there should be ready access to the courts and that effective remedies must be available to vindicate rights.

Basic structure doctrine

The question of access to justice came to the fore again in the context of ouster clauses. At one time, our courts accepted that the basic structure doctrine applied to the Federal Constitution (Sivarasa Rasiah). The Constitution contains certain features that constitute its basic fabric. These features cannot be removed or altered by statute. Whether a particular feature is part of the basic structure is to be worked out on a case by case basis.

However, the majority in Rovin Joty Kodeeswaran distinguished Sivarasa Rasiah and adopted a narrow reading of the Constitution. The basic structure doctrine does not apply in Malaysia. Under article 121(1), judicial power is what Parliament confers or removes by federal law. Judicial review is not a basic feature of the Constitution. It can be removed or limited by law. Ouster clauses are therefore valid. Following Phang Chin Hock, any amendment to the Constitution, even if it removes a basic feature of the Constitution, cannot be impugned. The minority in Rovin Joty Kodeeswaran held that statutory provisions precluding the courts from exercising the power to review legislation and executive action contravened article 4(1) and are void. Ouster clauses are invalid.

The judgment in Rovin Joty Kodeeswaran was pronounced on 26 February 2021. In the earlier case of Maria Chin Abdullah decided on 8 January 2021, the Federal Court was also divided. The Chief Justice read down the 1988 amendment to article 121(1). Her Ladyship interpreted the words “shall have such jurisdiction and powers as may be conferred by or under federal law” as not in any way diminishing or subordinating judicial power to Parliament. Following Semenyih Jaya and Indira Gandhi a/p Mutho, which were both affirmed in Alma Nudo Atenza, judicial review is part of the Constitution's basic structure. It can neither be extinguished through constitutional amendments nor laws passed by Parliament. Laws that offend the basic structure can be struck down as unconstitutional.

Impact on religious freedom

Access to justice is a human right. It also makes other rights actionable. Yet, access to justice and the right to freedom of religion that, on one view, are guaranteed by articles 8 and 11 respectively, are limited in practice. Muslims who wish to adopt another religion but fail to obtain the Syariah courts’ permission to do so will be unable to assert a violation of their article 11 rights in the civil courts. Under article 121(1A), the civil courts are prevented from reviewing the Syariah courts' decisions even if there has been a violation of rights. Further, religious minorities such as the Shi’a Muslims, cannot claim freedom of religion should the religious authorities prosecute them in the Syariah courts. The religious courts cannot, and will not, interpret or enforce article 11 rights.

Unfortunately, the civil courts have ceded power to the State’s legislative and executive branches by rejecting the basic structure doctrine. Consequently, and in one fell swoop, the development of access and religious freedom rights have been arrested, rendering much of articles 8 and 11 illusory.

Disputes concerning religion are often emotionally charged affairs. It is all the more critical that the land's supreme law should provide fair, adequate and non-discriminatory redress to victims of human rights violations. It is hoped that the sharp division of opinion among the judges in Maria Chin Abdullah and Rovin Joty Kodeeswaran will not be the last word on the topic. The struggle by human rights advocates must continue.


* The law stated is as of 9 April 2021