by Joshua Wu Kai-Ming | Jul 25, 2026 | Law, Politics
In a recent podcast episode, Dato’ Seri Mohd Rafizi bin Ramli (“RR“), the former Member of Parliament for Pandan and Minister of Economy, said the following in the Malay language:
“Contohnya kan di peringkat Persekutuan kan, Perlembagaan yang ada hanyalah untuk jawatan Perdana Menteri dan Menteri-Menteri. Jadi, contohnya, Timbalan Menteri hatta Timbalan Perdana Menteri sendiri sebenarnya tidak mempunyai sebarang punca kuasa di sisi undang-undang.
…
[Timbalan Menteri] tiada punca kuasa atas kertas.” (RR 00:18:11-00:18:50)[1] [“Impugned Statement“]
The Impugned Statement can be loosely translated into English as follows:
“For example, at the Federal level, the Constitution only provides for the position of Prime Minister and Ministers. So, for example, a Deputy Minister, even the Deputy Prime Minister himself, actually has no source of legal power/authority whatsoever.
…
[The Deputy Minister] has no source of power on paper.”
With all due respect to RR, the Impugned Statement is, in substance, constitutionally incorrect.
Article 43A of the Federal Constitution (“FC“) was introduced via Section 6 of the Constitutional (Amendment) Act 1960[2] which came into force on 31st May 1960.
Article 43A of the FC constitutionalised the office of “Assistant Ministers”.
The term “Assistant Ministers” in Article 43A of the FC was replaced by the term “Deputy Ministers” via Section 10 of the Constitutional (Amendment) (No. 2) Act 1971[3] which came into force on 24th March 1971.
Article 43A of the FC, in its present form, reads as follows:
“(1) The Yang di-Pertuan Agong may on the advice of the Prime Minister appoint Deputy Ministers from among the members of either House of Parliament; but if an appointment is made while Parliament is dissolved a person who was a member of the last House of Representatives may be appointed but shall not hold office after the beginning of the next session of Parliament unless he is a member either of that House or of the Senate.
(2) Deputy Ministers shall assist Ministers in the discharge of their duties and functions, and for such purpose shall have all the powers of Ministers.
(3) The provisions of Clauses (5) and (6) of Article 43 shall apply to Deputy Ministers as they apply to Ministers.
(4) Parliament shall by law make provision for the remuneration of Deputy Ministers.” [Bold and underline mine]
In addition, Article 160(2) of the FC defines a “member of the administration” as, “in relation to the Federation, a person holding office as Minister, Deputy Minister, Parliamentary Secretary or Political Secretary and, in relation to a State, a person holding a corresponding office in the State or holding office as member (other than an official member) of the Executive Council”. (Bold and underline mine)
The express inclusion of “Deputy Minister” within the definition of “member of the administration” under Article 160(2) of the FC further reinforces the position that the office of Deputy Minister is one that is constitutionally recognised and defined, rather than one devoid of any source of legal power/authority.
Having in mind the above, contrary to RR’s contention in the Impugned Statement, the office of “Deputy Ministers” has a source of legal power/authority on paper.
Notwithstanding the above, the Impugned Statement is not entirely incorrect. RR’s contention in the Impugned Statement that the office of “Deputy Prime Minister” is not expressly provided for in the FC is constitutionally accurate.
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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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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 | Dec 4, 2024 | Law
Session 4 of the Constitutional Law Conference 2024 was on the topic, “Does the Federal Constitution only have a vertical effect, having regard to Beatrice A/P AT Fernandez v Sistem Penerbangan Malaysia & Ors [2005] 3 MLJ 681?” (“Beatrice Fernandez“).
In Beatrice Fernandez, the Federal Court held the following:
“Constitutional law, as a branch of public law, deals with the contravention of individual rights by the Legislature or the Executive or its agencies. Constitutional law does not extend its substantive or procedural provisions to infringements of an individual’s legal right by another individual.” (Emphasis mine)
In effect, the legal proposition laid down by the Federal Court in Beatrice Fernandez was that the Federal Constitution only had a vertical effect (i.e. between individual & State) and did not have horizontal effect (i.e. between individuals/private parties).
Surendra Ananth and Lim Wei Jiet, as the speakers for the session, provided valuable insights into the topic with the former even taking on the role of the devil’s advocate for discussion purposes.
The slides I prepared, as moderator of the session, can be accessed below:
Does the Federal Constitution only have a vertical effect (Moderator)
At the present moment, in light of Beatrice Fernandez, it appears that the Federal Constitution only has a vertical effect. However, it may be time to revisit Beatrice Fernandez as the basis for the Federal Court’s decision arguably no longer holds water.
In the following jurisdictions, their respective Constitutions have been applied horizontally (at the very least in an indirect horizontal manner):
1. Ireland – in cases of “failure to implement” constitutional rights or “plainly inadequate” implementation of constitutional rights (see Hanrahan v Merck Sharp & Dohme [1988] IESC 1, [1988] ILRM 629);
2. Germany – private law provisions indirectly reflect the legal content of fundamental rights, primarily through mandatory provisions, and judges can give effect to this content in particular by drawing on general clauses (see Lüth 1 BvR 400/51); and
3. India – on a case to case basis, considering the “nature of the right violated” and the “extent of obligation on the part of the violator” [see Kaushal Kishor v. State of Uttar Pradesh & Ors (2023) 4 SCC 1].
by Joshua Wu Kai-Ming | Aug 21, 2024 | Law
On 15.8.2024, the Asian Law Students Association (“ALSA“) of Brickfields Asia College (“BAC“) organised a visit to the Bar Council.
I delivered a Consti101 talk to law students from ALSA BAC, in my capacity as a co-deputy chairperson of the Bar Council Constitutional Law Committee.
The slides for the Consti101 talk, in PDF format, can be accessed via the following url:
Consti101 talk (15.8.2024)
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