The Two-Step Test for Constitutional Challenges

by Joshua Wu Kai-Ming | Feb 4, 2026 | Law

In The Government of Malaysia v Heidy Quah Gaik Li [2026] 2 MLJ 397, Nallini Pathmanathan FCJ summarised the procedure for courts to follow when the constitutionality of a legal provision is challenged.

Step 1: Consider whether the presumption of constitutionality[1] has been adequately rebutted[2]

This involves asking “… whether the impugned statute or statutory provision is capable of a construction which is consistent with the constitutional provision”[3]

If the presumption of constitutionality is not rebutted, the constitutionality of the impugned legal provision should be upheld and the inquiry ends there.

If the presumption of constitutionality is rebutted, the court would then proceed to Step 2.

Step 2: Consider whether the impugned legal provision can be ‘read down’[4]

If the impugned legal provision cannot be read down, it can be struck down under Article 4(1) of the Federal Constitution.[5]

If the impugned legal provision can be read down, it should be ‘read down’ and its constitutionality upheld.[6]

One tool for ‘reading down’ is the ‘vagueness avoidance’ doctrine which “allows courts to legitimately craft a judicial construction of the text of the statute that retains only the core, while excising the indeterminate penumbra or uncertainty.”[7]

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