Litigating Rights in the Courts: Grounds for Review, Remedies and Procedures
When the Government of Malaysia passes a law that is inconsistent with fundamental rights guaranteed by the Federal Constitution or acts in a way that infringes those rights, what are our remedies? How does an affected person challenge the law or conduct in court? Why did the courts strike down a provision barring university students from expressing support for political parties (Muhammad Hilman Idham) or declare a criminal penalty for peaceful assembly as violating the right to freedom of assembly under article 10 of the Constitution (Nik Nazmi Nik Ahmad)? Under what power did the High Court declare that the decision to deprive a pregnant woman of a teaching job was unconstitutional (Noorfadilla Ahmad Saikin)?
The Federal Constitution is the supreme law of the land, and any law that is inconsistent with it may be struck down and declared void under article 4(1). To be “inconsistent” with the Constitution requires the impugned law to be inconsistent with any provision of the Constitution that relates to the legislative scheme of the said law (Maria Chin Abdullah).
The courts are the guardians of rights and liberties. Even as the Constitution allows Parliament to restrict rights, the courts must ensure that any restrictions do not amount to a total prohibition of the rights nullifying or rendering them meaningless (Cheah Beng Poh). When a statute is said to infringe a fundamental right, the courts must ask whether the law directly affects the right or its inevitable effect or consequence is such to make its exercise ineffective or illusory (Nordin Salleh). However, no legal challenge can be mounted to question a law’s validity on the ground that it imposes restrictions on rights that are not deemed necessary or expedient by Parliament. Nevertheless, it “does not bar the courts from questioning whether such law, although deemed necessary or expedient by Parliament, has purported to impose such restrictions which are bad in law, in the sense of being unreasonable in a constitutional sense” (Nik Nazmi Nik Ahmad). This means that laws restricting rights can be tested for their reasonableness.
The courts have, in several cases, applied the “reasonableness” test. Accordingly, it was reasonable for the Legal Profession Act 1976 to prohibit members of Parliament from serving the Bar Council (Sivarasa Rasiah). The Societies Act 1966, allowing the Registrar of Societies (ROS) to impose conditions before approving a society’s registration, was also held to be reasonable (Dr Mohd Nasir Hashim). On the other hand, the Court of Appeal opined that criminalising peaceful assemblies merely for failing to comply with an administrative requirement was unreasonable (Nik Nazmi Nik Ahmad). It was also “utter absurdity” that university students could not express their political opinions under the Universities and University Colleges Act 1971 (Muhammad Hilman Idham). Where the restrictions are reasonable, the impugned laws are upheld. Where they are unreasonable, the particular provisions under challenge are struck down.
Unfortunately, the Federal Court in Azmi Sharom disapproved the reasonableness test in 2015 but affirmed the “proportionality” test expounded in Dr Mohd Nasir Hashim. Laws restricting rights must satisfy three criteria: (a) the legislative objective of the impugned law is sufficiently important to justify limiting the right, (b) the law is rationally connected to the objective and (c) the means to impair the right is no more than is necessary to accomplish the objective. Applying proportionality provides the judge with a margin of appreciation that objectively varies according to the factual circumstances presented. The impugned law is judged in light of the situational backdrop. It remains to be seen how the courts will interpret and apply the proportionality test in upcoming constitutional law challenges.
The conduct of public authorities can be challenged for constitutional inconsistency. In testing the validity of state action concerning fundamental rights, the question to be asked is this: Does the direct or inevitable effect or consequence of the action on the rights make their exercise ineffective or illusory? Public authorities must act fairly both in procedure and in substance. When legal action is taken alleging a violation of fundamental rights, article 8(1) of the Constitution is engaged:
 … When resolving the issue, the court should not limit itself within traditional and narrow doctrinaire limits. Instead it should, subject to the qualification that will be made in a moment, ask itself the question: is the state action alleged to violate a fundamental right procedurally and substantively fair. The violation of a fundamental right where it occurs in consequence of executive or administrative action must not only be in consequence of a fair procedure but should also in substance be fair, that is to say, it must meet the test of proportionality housed in the second, that is to say, the equal protection limb of art 8(1).
In Dr Mohd Nasir Hashim, the ROS’ departmental policy requiring a political party’s committee to have representatives from at least seven states in Malaysia was not an unfair demand. The High Court decided differently in Noorfadilla Ahmad Saikin where it declared that a state education department’s revocation of Noorfadilla’s teacher placement, because she was pregnant, constituted gender discrimination. The state acted inconsistently with Noorfadilla’s right not to be discriminated under article 8(2) of the Constitution. Noorfadilla was significant for another reason: It was the first time a Malaysian court applied an international human rights treaty, the Convention on the Elimination of All Forms of Discrimination Against Women, to interpret the Constitution. The judge said as follows:
 As has been stated earlier, the word 'gender' was incorporated into art 8(2) of the Federal Constitution in order to comply with Malaysia's obligation under the CEDAW. It is to reflect the view that women are not discriminated. Article 1 of CEDAW defines 'discrimination against women' as any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
 To me, in interpreting art 8(2) of the Federal Constitution, it is the court's duty to take into account the government commitment and obligation at international level especially under an international convention, like CEDAW, to which Malaysia is a party. The court has no choice but to refer to CEDAW in clarifying the term 'equality' and gender discrimination under art 8(2) of the Federal Constitution.
Remedies and procedures
The civil courts possess a wide range of powers at their disposal. They may issue such orders and grant such relief as appropriate to suit the particular circumstances of each case. Remedies can be moulded to vindicate the rights-holders and mete out justice (Sivarasa Rasiah). Paragraph 1 of the Schedule to the Courts of Judicature Act 1964 expressly enjoins the High Court to protect fundamental rights and arms it with the necessary tools to do so:
1. Prerogative writs.
Powers to issue to any person or authority directions, orders or writs, including writs of the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, or any others, for the enforcement of the rights conferred by Part II of the Constitution, or any of them, or for any purpose.
Persons seeking to avail themselves of these reliefs have to file “judicial review” proceedings in the High Court pursuant to Order 53 of the Rules of Court 2012. Judicial review is a process for the courts to exercise control over public authorities (Ahmad Jefri Mohd Jahri). Whether administrative, legislative, or quasi-judicial, no authority can exceed its powers and any conduct or action taken in excess of the powers is invalid. Only persons “adversely affected” by the public authorities’ decision, action or omission can file the action. It must be filed within three months from the date when the grounds of the application arose or when the impugned decision was communicated.
Judicial review is a common method adopted by rights-holders to challenge laws or actions inconsistent with rights. It consists of two stages. At the first stage, the High Court must be satisfied that the action is not frivolous, vexatious, an abuse of process or bound to fail. Once leave is granted, proceedings move to the second stage, where parties are heard on the case merits. The applicant must show either that the impugned law is inconsistent with the Constitution or that the public authorities’ decision, action or omission under challenge was illegal, unreasonable, irrational or disproportionate. In addition to the reliefs in paragraph 1, declaratory orders, injunctions, and monetary compensation may also be granted. If the High Court finds that an impugned law is unconstitutional, it will declare the same invalid. The applicants in Sivarasa Rasiah and Dr Mohd Nasir Hashim litigated their cases through judicial review proceedings.
The “originating summons” procedure is another mode of commencing proceedings to challenge laws or conduct inconsistent with the Constitution. It is used where the principal question at issue concerns the interpretation of written law, and the facts are not likely to be in dispute. Declaratory remedies were sought through this procedure on the constitutionality of a legal provision (Muhammad Hilman Idham), and the legal status of a pregnant woman (Noorfadilla Ahmad Saikin), a suspended State Assemblyman (Dr Zambry Abd Kadir) and a Judicial Commissioner (Badan Peguam Malaysia).
In criminal cases, the accused person may apply to challenge the law used to prosecute him or her on the ground that it is unconstitutional. The application is filed in the High Court without taking out a separate civil suit (Mat Shuhaimi Shafiei). This was done in Nik Nazmi Nik Ahmad. Alternatively, a constitutional law reference may be made to the Federal Court (through the High Court) for a decision. Azmi Sharom, a case where the accused challenged the constitutionality of the Sedition Act 1948, adopted this route.
Thus far, the discussion has been in the context of “inconsistency” challenges, namely, where laws or conduct are alleged to be inconsistent with the Constitution. In these cases, the High Court has the jurisdiction to hear them. However, when a federal or state law is challenged because Parliament or the State Legislative Assembly did not have the power to enact the law, only the Federal Court has jurisdiction (Iki Putra Mubarrak; Ah Thian; Abdul Kahar Ahmad discussed here ).
* The law stated is as of 5 July 2021