by Joshua Wu Kai-Ming | Sep 1, 2025 | Law
1. Is based on/derived from Article 4(1) of the Federal Constitution
Support for this proposition can be found in the Federal Court’s decision in Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] 3 MLJ 356 (“Dhinesh”):
“… constitutional judicial review is expressly encompassed in art 4(1) of the FC.”[1] (Emphasis mine)
In Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan Negeri Kelantan [2024] 2 MLJ 150 (“Nik Elin”), the majority of the Federal Court shared a similar sentiment when it held that Article 4(1) of the FC “forms the substantive constitutional basis for all constitutional judicial review cases.”[2]
2. Is provided for with further codified powers under statutory law of general application
This observation was made by the Federal Court in SIS Forum (M) v Kerajaan Negeri Selangor (Majlis Agama Islam Selangor, intervener) [2022] 2 MLJ 356:
“The means for redress for constitutional judicial review, however is provided directly under cl (1) of art 4 of the FC to strike down unconstitutional legislation with the further codified powers under statutory law of general application ie para 1 of the Schedule to the CJA 1964 to issue declarations and to mould relief in applications for judicial review filed pursuant to O 53 of the ROC 2012.”[3] (Emphasis mine)
3. Is a mechanism for maintaining separation of powers
Nallini Pathmanathan FCJ aptly put this in Dhinesh:
“… By providing for the ability to render enacted law void if inconsistent with the FC, art 4(1) of the FC also clearly houses the doctrine of the separation of powers. It ensures that where the Legislature enacts laws which are outside the purview of the FC, such laws are void. This effectively provides a check and balance mechanism in relation to the division of power between the arms of Government. Neither the Legislature nor the Executive should enact or execute laws that are inconsistent with the FC. In this context it is not purely an issue of the division of powers, but rather undertaking the highest responsibility for maintaining the state and social order. This separation is maintained by the mechanism of constitutional judicial review. Judicial review lies at the heart of the FC as it enables or facilitates the operation of the doctrines of the separation of powers as well as ensuring that the basic features and thus the fundamental identity of the FC is retained.”[4] (Emphasis mine)
Her Ladyship also mentioned in Dhinesh that the role/function of exercising this mechanism falls on the Judiciary:
“The only manner in which any enacted law which is inconsistent with the FC can be held to be void operationally, is through the mechanism of judicial review. And this role or function of constitutional judicial review falls on the Judiciary. The Judiciary undertakes the role of safeguarding the supremacy of the FC by declaring any such inconsistent law, void. It is, in effect, the guardian of the FC.”[5] (Emphasis mine)
4. Is to be contrasted with administrative/statutory judicial review
The Federal Court in Mohd Najib bin Hj Abd Razak & Anor v Government of Malaysia and another appeal [2023] 6 MLJ 483 made it clear that a contrast needs to be made, and provided an explanation regarding administrative/statutory judicial review:
“Constitutional judicial review is to be contrasted with administrative judicial review in that the latter involves the supervision of the acts and/or omissions of public law bodies per se without challenging the validity of a specific legislative provision.”[6] (Emphasis mine)
Constitutional judicial review, on the other hand, “happens when the Judiciary is called upon to exercise its powers of interpretation of the supreme document, the [Federal Constitution]”.[7]
Interestingly, there are cases that involve both constitutional judicial review and administrative/statutory judicial review. An example of this, which was recognised by the Federal Court in Haris Fathillah bin Mohamed Ibrahim & Ors v Tan Sri Dato’ Sri Hj Azam bin Baki & Ors [2023] 2 MLJ 296, is Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan and other cases [2021] 3 MLJ 759 which challenged “the constitutionality of s 4 of the Prevention of Crime Act 1959 and sought concomitant habeas corpus orders for immediate release on the basis of an unlawful detention premised on an unconstitutional legislation.”[8]
5. Locus standi will be broadly construed
Tengku Maimun CJ (as Her Ladyship then was) opined this in Nik Elin:
“[24] In a case such as the present one involving constitutional judicial review, we opine that locus standi must be adjudged on principles even broader than the ones already applicable in Taman Rimba.
…
[29] We therefore take the view that the fact that legislation has been passed creates a factual circumstance in which it can be challenged. Article 4(1), which forms the substantive constitutional basis for all constitutional judicial review cases, does not discriminate between the circumstances and situations in which such challenges can be brought or the categories of persons that can bring them, apart from differentiating between the nature and procedure for those proceedings ie between ‘incompetency’ and ‘inconsistency’ challenges.”[9] (Emphasis mine)
In Attorney General of Malaysia v Sabah Law Society [2024] 6 MLJ 121, the Federal Court applied Nik Elin and concluded that the Sabah Law Society had threshold locus standi in a constitutional judicial review in respect of the Special Grant provided for Sabah under art 112C and s 2 of Part IV of the Tenth Schedule of the Federal Constitution.[10]
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by Joshua Wu Kai-Ming | Aug 6, 2025 | Law
In Lesley Chan Siew Yoke v RHB Bank Berhad [2020] MLJU 242 (“Lesley Chan”), the learned High Court judge (“LHCJ”) therein referred inter alia to an earlier decision of Pan Malaysia Equities Sdn Bhd v Angeline Tan Eei We [2010] MLJU 1528 (“Pan Malaysia”):
“The Court of Appeal in Pan Malaysia Equities Sdn Bhd v Angeline Tan Eei We [2010] MLJU 1528 held that Section 16 of the Act is in pari materia with the corresponding provision under the Indian Contract Act. Hamid Sultan JCA went on to analyse the application of the doctrine in the context of the Contracts Act 1950.”[1] (Bold and underline mine)
The LHCJ in Lesley Chan appeared to be of the impression that Pan Malaysia was:
(a) A decision of the Court of Appeal; and
(b) A decision by Hamid Sultan JCA.
[collectively referred to as the “Impugned Impressions 1”]
In Loh Mun Wah v Loh Yoon Sang & Ors [2023] MLJU 3435 (“Loh Mun Wah”), the LHCJ therein also misquoted Pan Malaysia as being a decision of the Court of Appeal:
“… The Court of Appeal in Pan Malaysia Equities Sdn Bhd v. Angeline Tan Eei We [2011] 1 CLJ 923; ; [2010] MLJU 1528 held that there was a need to place caveats on applying English cases.”[2] (Bold and underline mine)
The LHCJ in Loh Mun Wah, similar to the LHCJ in Lesley Chan, appeared to be of the impression that Pan Malaysia was a decision of the Court of Appeal (“Impugned Impression 2”).
Regrettably, the Impugned Impressions 1 and Impugned Impression 2 are factually incorrect.
Pan Malaysia was a decision of the High Court by Justice Hamid Sultan Abu Backer when His Lordship was a High Court judge (and not when His Lordship was a Court of Appeal judge):
The Impugned Impressions led the LHCJ in Lesley Chan to be of the view that he was bound by Pan Malaysia:
“This Court is bound by the position taken in Pan Malaysia Equities and agrees with Singlefine.”[3] (Bold and underline mine)
It is unclear whether the LHCJ in Lesley Chan would have agreed with (and adopted) the position taken in Pan Malaysia if he was aware that Pan Malaysia was a decision of the High Court.
After all, Pan Malaysia “being a decision of a court of coordinate jurisdiction … whilst deserving the respect and deference that is due to it … is not binding on”[4] the High Court in Lesley Chan.
As for Loh Mun Wah, the misquotation of Pan Malaysia likely would not have had a material impact on the outcome of the matter as the LHCJ therein also relied on the Court of Appeal’s decision in Tengku Abdullah Ibni Sultan Abu Bakar & Ors V. Mohd Latiff Shah Mohd & Ors & Other Appeals [1997] 2 CLJ 607[5] to establish a similar proposition.
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by Joshua Wu Kai-Ming | Jul 2, 2025 | Law
1. It is a feature/core tenet of the Federal Constitution
In Haris Fathillah bin Mohamed Ibrahim & Ors v Tan Sri Dato’ Sri Hj Azam bin Baki & Ors [2023] 2 MLJ 296 (“Haris Fathillah”), the Federal Court explicitly stated the following:
“… There is no dispute that judicial independence is a core tenet of the FC.”[1] (Emphasis mine)
The Federal Court in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561 (“Semenyih Jaya”) shared a similar view:
“Thus it is clear to us that the 1988 Amendment had the effect of undermining the judicial power of the Judiciary and impinges on the following features of the Federal Constitution:
(i) the doctrine of separation of powers; and
(ii) the independence of the Judiciary.”[2] (Emphasis mine)
2. It is a sacrosanct concept
The Federal Court in Haris Fathillah expressly held that:
“… Judicial independence is a sacrosanct concept. Judges and the entire judicial process must be free to perform their functions freely and independently to arrive at a just and fair decision.”[3] (Emphasis mine)
Zainun Ali FCJ expressed a similar sentiment in Semenyih Jaya:
“The important concepts of judicial power, judicial independence and the separation of powers are as critical as they are sacrosanct in our constitutional framework.”[4] (Emphasis mine)
3. It exists, conceptually, by implication
Tengku Maimun CJ made such an observation in Haris Fathillah:
“… It is here that one can appreciate why context is important because the very concept of judicial power, judicial independence and even the mechanism of constitutional judicial review exist by implication.”[5] (Emphasis mine)
4. It is the foundation of the principle of separation of powers
The Federal Court in Semenyih Jaya posited this:
“The Judiciary is thus entrusted with keeping every organ and institution of the state within its legal boundary. Concomitantly the concept of the independence of the Judiciary is the foundation of the principles of the separation of powers.”[6] (Emphasis mine)
5. Its goal is to ensure justice is done and to ensure public confidence in the justice system
Support for this legal proposition can be found in the Federal Court’s judgment in Metramac Corporation Sdn Bhd (formerly known as Syarikat Teratai KG Sdn Bhd) v Fawziah Holdings Sdn Bhd; Tan Sri Halim Saad & Che Abdul Daim Hj Zainuddin (interveners) [2007] 5 MLJ 501:
“The goal of judicial independence is to ensure justice is done in individual cases and to ensure public confidence in the justice system.”[7] (Emphasis mine)
6. An independent Judiciary has been entrusted with the task of interpreting all laws
This was held by Gopal Sri Ram JCA (later FCJ) in Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah & Anor [1998] 3 MLJ 289:
The Federal Constitution has entrusted to an independent judiciary the task of interpreting the supreme law and, indeed, all laws enacted by the legislative arm of government.”[8] (Emphasis mine)
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by Joshua Wu Kai-Ming | Jun 30, 2025 | Law
According to the Judicial Appointments Commission (“JAC”)’s website, there are 2 vacancies for the post of “Judge of Federal Court”[1]:
The information on the JAC’s website is presumably accurate, at the time of its publication.
However, based on publicly available information, the number of vacancies in the Federal Court are expected to rise with the following judges who have either retired or are expected to retire in 2025:
Judge
(in order of seniority of position, followed by date of appointment) |
Initial Retirement Date
(if there is no extension) |
Extended? |
Extended Retirement Date
(if there is an extension) |
| Tun Tengku Maimun binti Tuan Mat (Chief Justice) |
1/7/25[2] |
Uncertain (as at the time of writing)[3] |
N/A |
| Tan Sri Datuk Amar Abang Iskandar bin Abang Hashim (President of the Court of Appeal) |
2/7/25[4] |
Uncertain (as at the time of writing)[5] |
N/A |
| Tan Sri Hasnah binti Dato’ Mohammed Hashim (Chief Judge of Malaya) |
14/5/25[6] |
Yes, for 6 months[7] |
14/11/25 |
| Tan Sri Dato’ Sri Abdul Rahman Sebli (Chief Judge of Sabah & Sarawak) |
24/1/25[8] |
Yes, for 6 months[9] |
24/7/25 |
| Tan Sri Datuk Nallini Pathmanathan |
22/8/25[10] |
Uncertain (as at the time of writing)[11] |
N/A |
| Dato’ Zabariah binti Mohd Yusof |
10/4/25[12] |
Yes, for 6 months[13] |
10/10/25 |
| Tan Sri Harmindar Singh Dhaliwal |
October 2024 |
Yes, for 6 months[14] |
22/4/25[15] |
| Datuk Abdul Karim Abdul Jalil |
10/4/25[16] |
Reportedly offered extension but refused the offer[17] |
N/A |
| Datuk Hanipah binti Farikullah |
22/5/25[18] |
Yes, for 6 months[19] |
22/11/25 |
Other than those mentioned above, six (6) Federal Court judges remain at the time of writing.[20]
Four (4) of the six (6) remaining Federal Court judges will likely be appointed to office bearer/holder positions of the Judiciary.
This would then result in a significant vacancy for the post of Judge of the Federal Court, with two judges remaining out of an ideal of eleven judges.
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by Joshua Wu Kai-Ming | May 7, 2025 | Law
The civil courts have consistently recognised that the superior civil courts (namely the High Court, the Court of Appeal, and the Federal Court) are creatures of statute.
On the High Court being a creature of statute, the Federal Court in Gan Boon Aun v Public Prosecutor [2016] 4 MLJ 265 held the following:
“It is our considered view that the High Court, being a creature of statute, has no power to enlarge its jurisdiction under ss 30(2) and 84(1) of the CJA.”[1] (Emphasis mine)
As for the Court of Appeal being a creature of statute, this was acknowledged by the Federal Court in Dr Koay Cheng Boon v Majlis Perubatan Malaysia [2012] 3 MLJ 173:
“Being a creature of statute, the Court of Appeal has no power to enlarge its jurisdiction.”[2] (Emphasis mine)
The Federal Courts have accepted that even they are creatures of statute.
In Auto Dunia Sdn Bhd v Wong Sai Fatt & Ors [1995] 2 MLJ 549, Edgar Joseph Jr FCJ was of the following view:
“It is an elementary proposition that this court is a creature of statute and that equally a right of appeal is also a creature of statute, so that unless an aggrieved party can bring himself within the terms of a statutory provision enabling him to appeal, no appeal lies.”[3] (Emphasis mine)
Similarly, the Federal Court in Megat Najmuddin bin Dato Seri (Dr) Megat Khas v Bank Bumiputera (M) Bhd [2002] 1 MLJ 385 held as follows:
“The view expressed by his Lordship is but a mere reflection of the intention of Parliament. The Federal Court is a creature of statute. So is the right of appeal. This means that unless an aggrieved party can bring himself within the parameters of s 96(a) of the CJA, no appeal lies.”[4] (Emphasis mine)
In Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor [2007] 5 MLJ 101, the Federal Court clarified that “statutes” included the Federal Constitution:
“The point to note here is that both courts, civil and shariah, are creatures of statutes. Both owe their existence to statutes, the Federal Constitution, the Acts of Parliament and the State Enactments. Both get their jurisdictions from statutes ie Constitution, federal law or state law, as the case may be.”[5] (Emphasis ours)
The very existence and constitution of the superior civil courts are established by virtue of Part IX of the Federal Constitution.[6]
Notably, certain aspects of the jurisdictions of the Court of Appeal and the Federal Court are explicitly provided for in the Federal Constitution.[7]
Notwithstanding that, the Federal Constitution provides that the following are “as may be conferred by or under federal law” or “as may be provided by federal law”:
(a) The jurisdiction and powers of the High Court;[8]
(b) The other (read: additional/further) jurisdiction(s) of the Court of Appeal;[9] and
(c) The other (read: additional/further) jurisdiction(s) of the Federal Court.[10]
The Courts of Judicature Act 1964, an ordinary statute, is one such federal law.
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