6 Things About The Presumption of Constitutionality

by | Nov 3, 2021 | Law

1. Applies in favour of the constitutionality of an Act of Parliament/State enactment

In Public Prosecutor v Su Liang Yu [1976] 2 MLJ 128, Hashim Yeop A Sani J (later Chief Justice of Malaya) held:

“There is always a presumption in favour of constitutionality of an enactment and the burden is upon him who attacks the enactment to show that there has been a clear transgression of the constitutional principles.”[1]

2. Applies to all Acts of Parliament

The Federal Court in Rovin Joty a/l Kodeswaran v Lembaga Pencegahan Jenayah & Ors and other appeals [2021] MLJU 195 remarked that:

“There is a presumption of constitutionality in every legislation passed by Parliament.”[2]

3. Is premised on the understanding that Parliament is deemed better placed than the Courts to determine social policy as parliamentarians are democratically elected and represent the will of the people

Azahar Mohamed CJ (Malaya), in delivery the majority decision in Letitia Bosman v Public Prosecutor and other appeals (No 1) [2020] 5 MLJ 277 held:

“The presumption of constitutionality exists because Parliament is deemed better placed than the Courts to determine social policy. Parliamentarians are democratically elected and represent the will of the people.”[3]

4. A manifestation of judicial deference in the exercise of constitutionally derived powers

In Rovin Joty a/l Kodeswaran v Lembaga Pencegahan Jenayah & Ors and other appeals [2021] MLJU 195, Zabariah Mohd Yusof FCJ opined the following:

“The presumption of constitutionality is a manifestation of judicial deference in striking down laws passed by Parliament or to impugn executive action insofar as the exercise of constitutionally derived powers are concerned.”[4]

5. Cannot be carried to the extent or stretched to for the purposes of validating an invalid law

Eusoffe Abdoolcaader J (later SCJ) held in Public Prosecutor v Datuk Harun bin Haji Idris & Ors [1976] 2 MLJ 116 (“Datuk Harun”):

“… the presumption is not however to be carried to the extent or stretched for the purpose of validating an otherwise invalid law, and if the force ofArticle 8(1) bears sufficiently strongly upon and against that presumption, it must then necessarily bend, break and give way under that force.”[5]

The Federal Court in Letitia Bosman v Public Prosecutor and other appeals (No 1)  [2020] 5 MLJ 277 shared a similar view when it held:

“… that is not to say that the presumption is unassailable. The presumption of constitutionality cannot be applied to render a law that is invalid, valid.”[6]

6. Burden to disprove the presumption lies on the party presenting the challenge

This is the trite position as seen in Datuk Harun:

“there is a presumption – perhaps even a strong presumption – of the constitutional validity of the impugned section with the burden of proof on whoever alleges otherwise.”

The above extract in Datuk Harun was referred to favourably by the Supreme Court in Public Prosecutor v Pung Chen Choon [1994] 1 MLJ 566.[7]

Both Datuk Harun and Pung Chen Choon were relied on by the Federal Court in Rovin Joty a/l Kodeeswaran v Lembaga Pencegahan Jenayah & Ors and other appeals [2021] MLJU 195 on this point.[8] (more…)