On 29th January 2023, a senior member of the Malaysian Bar, Datuk Seri Gopal Sri Ram (“GSR”) passed away.[1]
GSR was a former Court of Appeal and Federal Court judge and during his time on the bench, GSR contributed massively to the development of Malaysia’s constitutional law.
This article intends to highlight some of GSR’s notable constitutional cases and dicta during his time on the bench, and is by no means exhaustive.
1. Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333 (FC):
“[5] … Provisos or restrictions that limit or derogate from a guaranteed right must be read restrictively. Take art 10(2)(c). It says that ‘Parliament may by law impose … (c) on the right conferred by paragraph (c) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality’. Now although the article says ‘restrictions’, the word ‘reasonable’ should be read into the provision to qualify the width of the proviso. The reasons for reading the derogation as ‘such reasonable restrictions’ appear in the judgment of the Court of Appeal in Dr Mohd Nasir bin Hashim v Menteri Dalam Negeri Malaysia [2006] 6 MLJ 213; [2007] 1 CLJ 19 which reasons are now adopted as part of this judgment.” (Emphasis mine)
“[8] … it is clear from the way in which the Federal Constitution is constructed there are certain features that constitute its basic fabric. Unless sanctioned by the Constitution itself, any statute (including one amending the Constitution) that offends the basic structure may be struck down as unconstitutional. Whether a particular feature is part of the basic structure must be worked out on a case by case basis. Suffice to say that the rights guaranteed by Part II which are enforceable in the courts form part of the basic structure of the Federal Constitution. See Keshavananda Bharati v State of Kerala AIR 1973 SC 1461.” (Emphasis mine)
“[12] … The expression ‘morality’ is not defined by the Constitution. However, in Manohar v State of Maharashtra AIR 1984 Bom 47 (a case cited by learned senior federal counsel) it was held that morality in the equipollent Indian Constitution art 19(2) and (4) :
is in the nature of public morality and it must be construed to mean public morality as understood by the people as a whole.” (Emphasis mine)
“[13] … Article 10 contains certain express and, by interpretive implication, other specific freedoms. For example, the freedom of speech and expression are expressly guaranteed by art 10(1)(a). The right to be derived from the express protection is the right to receive information, which is equally guaranteed. See Secretary, Ministry of Information and Broadcasting, Government of India v Cricket Association of Bengal AIR 1995 SC 1236.” (Emphasis mine)
“[19] Accordingly, when state action is challenged as violating a fundamental right, for example, the right to livelihood or the personal liberty to participate in the governance of the Malaysian Bar under art 5(1), art 8(1) will at once be 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). However, where the state action is primary or secondary legislation, that is to say, an Act of Parliament or subsidiary legislation made by the authority of Parliament, the test of constitutionality is only based on substantive fairness: no question arising on whether the legislation is the product of a fair procedure. This is because the doctrine of procedural fairness does not apply to legislative action of any sort. See Bates v Lord Hailsham of St Marylebone & Ors [1972] 1 WLR 1373; Union of India v Cynamide India Ltd AIR 1987 SC 1802.”
“[21] Article 8(1) provides that: ‘All persons are equal before the law and entitled to the equal protection of the law.’ As may be seen, the article guarantees two separate and distinct rights, namely, (a) equality before the law; and (b) equal protection of the law. It cannot be over emphasised that in accordance with well settled principles of constitutional interpretation each of these rights must be treated as a separate and distinct right despite an overlap as will be seen later in this judgment. Indeed, each right is derived from a distinctly different source. The framers of our Constitution (like the framers of the Indian Constitution) derived the equality clause from the Constitution of the Irish Free State. The equality doctrine in reality is drawn from Dicey’s rule of law one of the pillars of which is that persons are equal before the law.” (Emphasis mine)
2. Shamim Reza bin Abdul Samad v Public Prosecutor [2011] 1 MLJ 471 (FC):
“[3] … We therefore accept that the right to a fair trial is a constitutionally guaranteed right.” (Emphasis mine)
3. Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301 (FC):
“[8] In the second place, the Constitution is a document sui generis governed by interpretive principles of its own. In the forefront of these is the principle that its provisions should be interpreted generously and liberally. On no account should a literal construction be placed on its language, particularly upon those provisions that guarantee to individuals the protection of fundamental rights. In our view, it is the duty of a court to adopt a prismatic approach when interpreting the fundamental rights guaranteed under Part II of the Constitution. When light passes through a prism it reveals its constituent colours. In the same way, the prismatic interpretive approach will reveal to the court the rights submerged in the concepts employed by the several provisions under Part II. Indeed the prismatic interpretation of the Constitution gives life to abstract concepts such as ‘life’ and ‘personal liberty’ in art 5(1).” (Emphasis mine)
“[12] … A court when interpreting the other provisions of our Constitution, in particular, those appearing in Part II thereof, must do so in the light of what has been correctly referred to as ‘the humanising and all pervading provisions of art 8(1)’ (see Barat Estates Sdn Bhd & Anor v Parawakan a/l Subramaniam & Ors [2000] 4 MLJ 107).
…
The effect of art 8(1) is to ensure that legislative, administrative and judicial action is objectively fair. It also houses within it the doctrine of proportionality which is the test to be used when determining whether any form of state action (executive, legislative or judicial) is arbitrary or excessive when it is asserted that a fundamental right is alleged to have been infringed. See Om Kumar v Union of India AIR 2000 SC 3689.” (Emphasis mine)
“[17] … It is clear from this passage that the rules of natural justice, which is the procedural aspect of the rule of law, is an integral part of arts 5(1) and 8(1). In short, procedural fairness is incorporated in these two articles.” (Emphasis ours)
4. Palm Oil Research and Development Board Malaysia & Anor v Premium Vegetable Oils Sdn Bhd & Another Appeal [2005] 3 MLJ 97 (FC):
“42 … It is the solemn duty of the judicial arm of Government — the courts who are the guardians of constitutional rights – to interpret the fundamental rights provisions in Part II of the Constitution prismatically, so that our citizens obtain the full benefit and value of those rights. And it is in this simple way, through the exercise of the court’s interpretive jurisdiction that our public law gains momentum. Accordingly, it cannot be over-emphasised that on no account should our courts adopt a narrow and pedantic approach to constitutional interpretation.” (Emphasis mine)
“48 In the context of the present appeal, it is art 8(1), particularly the second limb of that Article, which is the relevant constitutional provision which houses the ultra vires doctrine.
49 Article 8(1) has two limbs. The first limb guarantees equality before the law. In other words, it requires fairness in all forms of State action.
…
50 The second limb guarantees equal protection of the law. This is the limb directly relevant to the present appeal. The act or omission of a member of the administration (whether a Minister or a civil servant) which is either: (i)�beyond the power conferred upon him or her by an Act of Parliament; or (ii) constitutes an abuse of that power, denies to the person affected thereby, equal protection of the law and consequently runs foul of art 8(1). Accordingly, the doctrine of ultra vires in respect of acts whether purely administrative or in the exercise of a power to produce delegated legislation finds its place within the second limb of art 8(1).” (Emphasis mine)
“61 In Malaysia, the Federal Constitution has entrusted the law making power to Parliament and the State Assembly of each of the several States of the Federation. While the courts through the common law recognise the power of Parliament to delegate some of its legislative power, it is equally the constitutional duty of the courts to ensure that no excessive delegation takes place. Hence the well settled principle that a provision in a statute conferring power on a member of the executive to enact subsidiary legislation must be construed strictly. This is particularly so where the subsidiary legislation is one that imposes a financial levy — call it a tax or charge or cess or whatever you may — upon the whole or any section of the public.” (Emphasis mine)
Note: GSR, though then a Court of Appeal judge, was empaneled to sit in a Federal Court hearing pursuant to Article 122(2) of the Federal Constitution.
5. Fung Beng Tiat v Marid Construction Co [1996] 2 MLJ 413 (FC):
“First, it is crystal clear from art 121 of the Federal Constitution that there are two separate High Courts in Malaysia exercising distinct territorial jurisdiction over different geographical areas of the country. There is the High Court in Malaya and there is the High Court in Sabah and Sarawak. Each has jurisdiction over disputes that arise within its territory. As presently advised, there is absent in any Federal legislation that confers power upon the one High Court to transfer proceedings to the other.” (Emphasis mine)
Note: GSR, though then a Court of Appeal judge, was empaneled to sit in a Federal Court hearing pursuant to Article 122(2) of the Federal Constitution. GSR also delivered the judgment of the Federal Court in this case.
6. Peter James Tennent v Kaka Singh Dhaliwal [2014] 2 MLJcon 146, [2009] MLJU 331 (CA):
“[6] In the second place, we do not see how Article 5(1) of the Federal Constitution (relied upon by the appellant) is engaged in the present case. That article prohibits the deprivation of life personal liberty, save in accordance with law. In the present case, no contract has been made in the public law sense ousting the rights conferred by Article 5(1). The present instance merely concerns a contract made between two private persons. So, the question of adopting a fair procedure before depriving of him or her of his or her livelihood does not arise in the case before us.” (Emphasis mine)
7. Kok Wah Kuan v Public Prosecutor [2007] 5 MLJ 174 (CA):
“[12] … By art 39 of our Constitution, the executive authority of the Federation is vested in the Yang di-Pertuan Agong. Save on certain matters that are not in issue here, the Yang di-Pertuan Agong is a constitutional monarch and must, in accordance with art 40(1), act in accordance with the advice given him by the Cabinet or a particular Minister of the Cabinet …
[13] In our judgment, applying settled principles, s 97(2) clearly contravenes the doctrine of separation of powers housed in the Constitution by consigning to the Executive the judicial power to determine the measure of the sentence that is to be served by the instant appellant” (Emphasis mine)
“[14] … As was pointed out by the Indian Supreme Court in In re the Special Courts Bill 1978 AIR [1979] SC 478, the constitutionality of a particular provision must be determined in each case as it arises. Our conclusion that s 97(2) is inconsistent with the Constitution does not extend to a declaration of unconstitutionality of other equipollent provisions. The validity of these other provisions must be dealt with on a case by case basis as and when the occasion arises. In the specific case of s 348 of the Criminal Procedure Code, it is a pre-Merdeka and hence a pre-Constitution provision. It must therefore be dealt with in accordance with the principles set out in Assa Singh v Menteri Besar, Johore [1969] 2 MLJ 30 which were applied by this court in Kerajaan Negeri Selangor & Ors v Sagong Tasi [2005] 6 MLJ 289. In the case of pre-Merdeka statutes, the courts are empowered to ‘apply the existing law with such modifications as may be necessary to bring it into accord with the Constitution’: Surinder Singh Kanda v The Federation of Malaya [1962] MLJ 169, per Lord Denning). We do not have such a power in respect of laws enacted post-Merdeka. In respect of such laws, the only power we have, under art 4(1) of the Constitution is to either uphold them as being intra vires the supreme law or strike them down as being inconsistent with it. Consequently, once a law is found to violate the Constitution the court has no choice but to declare it void and of no effect.” (Emphasis mine)
8. Dr Mohd Nasir bin Hashim v Menteri Dalam Negeri Malaysia [2006] 6 MLJ 213 (CA):
“[7] The long and short of it is that our Constitution — especially those articles in it that confer on our citizens the most cherished of human rights — must on no account be given a literal meaning. It should not be read as a last will and testament. If we do that then that is what it will become.” (Emphasis mine)
“[8] The other aspect to interpreting our Constitution is this. When interpreting the other parts of the Constitution, the court must bear in mind the all pervading provision of art 8(1). That article guarantees fairness of all forms of State action (see Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261). It must also bear in mind the principle of substantive proportionality that art 8(1) imports (see Om Kumar v Union of India AIR 2000 SC 3689). This doctrine was most recently applied by this court in the judgment of my learned brother Mohd Ghazali JCA in Menara PanGlobal Sdn Bhd v Arokianathan a/l Sivapiragasam [2006] 3 MLJ 493. In other words, not only must the legislative or executive response to a state of affairs be objectively fair, it must also be proportionate to the object sought to be achieved. This is sometimes referred to as ‘the doctrine of rational nexus’ (see Malaysian Bar & Anor v Government of Malaysia [1987] 2 MLJ 165). A court is therefore entitled to strike down State action on the ground that it is disproportionate to the object sought to be achieved.” (Emphasis mine)
“[9] Against the background of these principles it is my judgment that the restrictions which art 10(2) empower Parliament to impose must be reasonable restrictions. In other words, the word ‘reasonable’ must be read into the sub-clauses of art 10(1). That words may be read into our Constitution has been established by the decision of the Federal Court in Ooi Ah Phua v Officer in Charge Criminal Investigation Kedah/Perlis [1975] 2 MLJ 198.” (Emphasis mine)
“[11] … The court must not permit restrictions upon the rights conferred by art 10 that render those rights illusory.” (Emphasis mine)
9. Ahmad Saidi bin Md Isa v Timbalan Menteri Hal Ehwal & Ors [2006] 3 MLJ 208 (CA)
“[8] Likewise, we would say that it is consonant with promotion of the rule of law as enshrined in art 8(1) of the Federal Constitution that the instant appellant be given an opportunity to challenge the validity of the administrative order made against him by way of defence to the criminal charges brought against him. See the speeches of Lord Irvine of Lairg LC and Lord Steyn in Boddington‘s case.” (Emphasis mine)
10. Majlis Perbandaran Pulau Pinang vSyed Ahmed a/l MM Gouse Mohamed [2007] 1 MLJ 42 (CA):
“This is a case where the respondent was deprived of his property otherwise than in accordance with law, namely, the requirement of the law that he should have been given an opportunity of being heard. This is in clear violation of art 13(1) of the Federal Constitution. And it has been repeatedly held by courts across the Commonwealth that compensation is payable to a person whose constitutionally guaranteed fundamental right, such as the right to life, personal liberty or property is violated (see Maharaj v Attorney General of Trinidad & Tobago (No 2) [1979] AC 385; Nilabati Bahera v State of Orissa 1993 AIR SC 1960; Oag v The Queen (1985) 22 CRR 171, Fose v Minister of Safety and Security [1996] 2 BCLR 232, Simpson v Attorney-General [1994] 3 NZLR 667 and Cullen v Chief Constable of the Royal Ulster Constabulary (Northern Ireland) [2003] 1 WLR 1763” (Emphasis mine)
11. Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors [2005] 6 MLJ 289 (CA):
“37 … As regards s 12, it is a pre-Merdeka provision. It must therefore be interpreted in a modified way so that it fits in with the Federal Constitution.”
“41 How then do you modify s 12 to render it harmonious with Article 13(2)? I think you do that by reading the relevant phrase in section 12 as ‘the State Authority shall grant adequate compensation therefor.’ By interpreting the word ‘may’ for ‘shall’ and by introducing ‘adequate’ before compensation, the modification is complete. I am aware that ordinarily we, the judges, are not permitted by our own jurisprudence, to do this. But here you have a direction by the supreme law of the Federation that such modifications as the present must be done. That is why we can resort to this extraordinary method of interpretation.”
12. M Sentivelu A/L Marimuthu v Public Services Commission Malaysia & Anor [2005] 4 MLJ 393 (CA):
“14 … we have had, since Merdeka, a dynamic Federal Constitution which protects a person’s basic human rights.” (Emphasis mine)
13. Fatimah Bte Shi & Ors v Meor Atiqulrahman Bin Ishak & Ors (Minors, Suing Through Syed Ahmad Johari Bin Syed Mohd) [2005] 2 MLJ 25 (CA):
“14 Where observances as to dress, food, ceremonies and modes of worship are regarded as integral parts of a religion, and these are denied by State action, then and then only can a complaint under Art 11(1) may legitimately be made. The present instance is not such a case. In my judgment, the appellants acted entirely in accordance with the Constitution and the relevant regulations in expelling the respondents” (Emphasis mine)
14. Ng Kim Moi (P) & Ors v Pentadbir Tanah Daerah, Seremban, Negeri Sembilan Darul Khusus (Negeri Sembilan Township Sdn Bhd & Anor, Proposed Intervenors) [2004] 3 MLJ 301 (CA) [dissenting]:
“65 Three principles may be extracted from the majority speeches in Cullen. First, a fundamental right guaranteed by the Constitution is a value added right. Second, because it is a value added right, its breach is to be redressed by an award of compensation without proof of actual damage, ie, on the footing of strict liability. Third, the State is liable to compensate a citizen for a violation of his or her constitutional right by any arm of the State.” (Emphasis mine)
“67 That liability for the breach of any of the fundamental rights guaranteed under Pt II of the Federal Constitution is strict and not fault based was established even before the decision in Cullen by Anand J (later CJ India) in DK Basu v State of West Bengal AIR 1997 SC 617 …” (Emphasis mine)
“75 … Now, if at every turn, the victim of a constitutional violation is required to prove that the contravening public authority acted in bad faith then, the right calling for protection would be illusory, or, to borrow the more picturesque words of Brewer J in Gulf Colorado and Santa Fe Railway Co v Ellis (1897) 165 US 150, it would ‘be a mere rope of sand’.” (Emphasis mine)
15. Marathaei D/O Sangulullai (Suing On Behalf Of The Estate Of Thangayah Aupulley) & Anor v Syarikat Jg Containers (M) Sdn Bhd & Anor [2003] 2 MLJ 337 (CA), at p. 343:
“In other words, our Parliament, unlike the Parliament of the United Kingdom, has no power to enact a law that is ultra vires the Federal Constitution. This is the fundamental difference between our Federal Constitution and the British constitution. Failure to keep this most elementary difference in the forefront of our minds will lead to serious and most basic constitutional errors.”
16. Md Aris Bin Zainal Abidin v Suruhanjaya Pasukan Polis & Anor [2002] 4 MLJ 105 (CA), at pp. 108-109:
“All laws enacted in the Federation of Malaysia whether by Parliament or by any inferior law making authority such as the Rules Committee acting under s 16 of the Courts Judicature Act 1964 must accord with the Federal Constitution, the supreme law by its own declaration (see art 4(1) of the Federal Constitution).
It is therefore axiomatic that no lawmaker within our shores has authority to make law which contravenes the Federal Constitution.
It matters not a jot whether the law is substantive or procedural; constitutional compliance is mandatory.
Courts like any other arm of the government are similarly bound by the Federal Constitution. But there is a difference. A decision of a court cannot be challenged on the ground that it is unconstitutional simply because it contains an error of fact or an error of law. That is because there is a self-correction process available within the justice system by means of an appeal at one or more levels. However, a procedural rule of court does not enjoy the same protection.” (Emphasis mine)
17. Deputy Chief Police Officer, Perak & Anor v Ramesh A/L Thangaraju [2001] 1 MLJ 161 (CA), at p. 165:
“It is, I think, settled beyond argument that procedural and substantive fairness are constitutionally guaranteed by the Federal Constitution. The cumulative operation of arts 5(1) and 8(1) of the Constitution ensures this.
Now, in the early days of the development of our jurisprudence, our courts adopted a narrow and literal approach to the interpretation of the Federal Constitution, in particular those provisions which confer fundamental liberties upon our citizens. The decision of the former Federal Court in Government of Malaysia v Loh Wai Kong [1979] 2 MLJ 33 is illustrative of this. It was the lowest ebb in the history of our constitutional life. The executive was virtually handed a carte blanche by the courts in the matter of a citizen’s fundamental rights. It was one of the darkest moments in our legal history.” (Emphasis mine)
18. Barat Estates Sdn Bhd & Anor v Parawakan A/L Subramaniam & Ors [2000] 4 MLJ 107 (CA), at pp. 117-118:
“We spoke a moment ago of the right to make a choice in the context of employment as a constitutional right. In saying this we have in mind art 6 of the Federal Constitution …
…
In accordance with settled principles of constitutional interpretation, this article must be given a broad and liberal construction. See PP v Datuk Harun bin Haji Idris & Ors [1976] 2 MLJ 116; Dewan Undangan Negeri Kelantan & Anor v Nordin bin Salleh & Anor [1992] 1 MLJ 697. Additionally, this article, like most other Articles of the Federal Constitution, must be read in the light of the humanising and all pervading provisions of art 8(1).See Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261 and Hong Leong Equipment Sdn Bhd v Liew Fook Chuan and another appeal [1996] 1 MLJ 481.” (Emphasis mine)
“We emphasise the inclusion of arrangements governed by private law within the scope of the principle because it is not open to parties to contract out of the provisions of the Federal Constitution. That much was made clear by Ong CJ in Lionel v Government of Malaysia [1971] 2 MLJ 172 at p 173 …” (Emphasis mine)
19. Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utra Badi K Perumal [2000] MLJU 837 (CA):
“Now, it cannot be gainsaid that any sort of punishment imposed upon a public servant has serious consequences. It carries with it a stigma. It tarnishes reputation. The authorities are now well settled that the punishment of dismissal deprives a person of his livelihood and therefore of his “life” within the meaning of that expression in art. 5(1) of the Federal Constitution. See, R Rama Chandran v. The Industrial Court of Malaysia & Anor [1997] 1 CLJ 147;; [1997] 1 MLJ 144; Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan & Anor (supra); Hong Leong Equipment Sdn Bhd v. Liew Fook Chuan [1997] 1 CLJ 665;; [1996] 1 MLJ
Similarly, when a person is derived of his reputation, it would in my judgment, amount to a deprivation of “life” within art. 5(1) of the Federal Constitution. The right to reputation is part and parcel of human dignity. And it is the fundamental right of every person within the shores of Malaysia to live with common human dignity. I derive support for this view from the decisions of the Indian Supreme Court in two cases. The first is Francis Coralie v. Union of India AIR [1981] SC 746 …
…
The second authority is Board of Trustees of the Port of Bombay v. Dilipkumar AIR [1983] SC 114 …” (Emphasis mine)
“The combined effect of arts. 5(1) and 8(1) of the Federal Constitution is, in my judgment, to demand fairness both in procedure and in substance whenever a public law decision has an adverse effect on any of the facets of a person’s life. See, R Rama Chandran v. The Industrial Court of Malaysia & Anor (ibid); Kumpulan Perangsang Selangor Bhd v. Zaid bin Haji Mohd Noh [1997] 2 CLJ 11;; [1997] 1 MLJ 789. Among these facets are a person’s livelihood and his reputation.” (Emphasis mine)
20. Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara Malaysia & Anor [1999] 1 MLJ 266 (CA), at pp. 271-272:
“There are several authorities that deal with the approach a court should adopt when interpreting the provisions of a written constitution and the following principles, relevant to the present appeal, may be distilled from them:
1 Generally speaking, the rules of construction that guide a court in the interpretation of ordinary statutes apply with equal force when interpreting the Federal Constitution. But there are important differences. For, the Federal Constitution, unlike any ordinary statute, does not merely declare the law. It creates and regulates the law-making power of the federation. It also creates and defines the various branches of government. It confers upon individuals certain fundamental and inalienable human rights, such as equality before the law. Its language must accordingly receive a broad and liberal construction in order to advance the intention of its framers. Or as Lord Diplock put it in Attorney-General of The Gambia v Momodou Jobe [1984] AC 689 at p 700:
A constitution, and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction.
2 A court, while rendering a broad and liberal construction to the language employed by the Federal Constitution, is not entitled ‘to stretch or pervert the language of the enactment in the interests of any legal or constitutional theory, or even for the purpose of supplying omissions or of correcting supposed errors’. (Per Gwyer CJ in Re Central Provinces & Berar Sales of Motor Spirit & Lubricants Taxation Act AIR 1939 FC 1.) This general rule is, however, subject to an important qualification. Where the language of the constitution is open to two constructions, a court should adopt the construction ‘which will ensure the smooth and harmonious working of the constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well-established provisions of existing law nugatory’. (Per Shelat and Grover JJ in Kesavananda Bharati v The State of Kerala AIR 1973 SC 1461 at p 1581.) Thus, a court, for the purpose of rendering a harmonious interpretation, is entitled to make implications into the language of the constitution. An implication here refers to something that ‘explains, perhaps limits, the effect of what is expressed’. (Per Windeyer J in Victoria v Commonwealth (1971) 122 CLR 353 at p 401.)
3 An expression appearing in the same or different provisions of a constitution may bear the same or different meaning according to the context in which it is used. For example, ‘law’ in art 4(1) does not have the same meaning as ‘law’ in art 159. See Phang Chin Hock v PP [1980] 1 MLJ 170.
4 An amendment to the Constitution when enacted in accordance with the provisions of art 159 becomes an integral part of the Constitution and falls to be construed together with the existing provisions. See Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187.” (Emphasis mine)
21. Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah & Anor [1998] 3 MLJ 289 (CA), at pp. 305, 306, 308:
“Unlike England, Malaysia has a written constitution the basic framework of which has been fashioned in language that upholds the Rule of Law. The fundamental guarantees that all persons are equal before the law and have equal protection of it (art 8(1)) and that no person shall be deprived of life or personal liberty save in accordance with law (art 5(1)) clearly demonstrate that ours is not a Government of mere humans but of laws. The wide reach of these two articles, and in particular the brooding omnipresence (to borrow the language of Bhagwati J in Maneka Gandhi v Union of India AIR 1978 SC 597) of art 8(1) has already been recognized by our courts.” (Emphasis ours)
“Hence, it is to the courts that a citizen must turn to enforce rights conferred by the Federal Constitution or other written law or existing at common law. This is a cardinal principle of constitutional law and has been stated in a number of cases.” (Emphasis mine)
“Like the Constitutions of Sri Lanka and India, the Federal Constitution preserves the separation of powers between the three arms of Government and evinces no intention that the judicial power of the Federation shall be passed to or shared with the Executive or the Legislature. It follows that the judicial power of the Federation remains where it has always been, namely, with the judiciary.
Based upon what we have said thus far, we are of the view that the liberty of an aggrieved person to go to court and seek relief, including judicial review of administrative action, is one of the many facets of the personal liberty guaranteed by art 5(1) of the Federal Constitution. Were it otherwise, the protection afforded by arts 5(1) and 8(1) of the Federal Constitution will be illusory and the language of the supreme law no more than high sounding words of no practical significance.” (Emphasis mine)
22. Ketua Pengarah Jabatan Alam Sekitar & Anor v Kajing Tubek & Ors And Other Appeals [1997] 3 MLJ 23 (CA), at p. 37:
“It is a well settled principle of constitutional interpretation that every entry in each Legislative List must be given its widest significance and that its scope cannot be curtailed save to the extent necessary to give effect to other legislative entries: State of Bombay v Narottamdas Jethabhai AIR 1951 SC 69.” (Emphasis mine)
“It is also well settled that the phrase ‘with respect to’ appearing in art 74(1) and (2) of the Federal Constitution – the provision conferring legislative power upon the Federal and State Governments respectively – is an expression of wide import.” (Emphasis mine)
“There is yet another principle of constitutional law that is relevant to these appeals and upon which DatO’ Gani Patail has relied. It is the presumption of constitutionality operating in favour of legislation passed by Parliament: see PP v Datuk Harun bin Hj Idris & Ors [1976] 2 MLJ 116 and Commonwealth of Australia & Anor v State of Tasmania & Ors (1983) 158 CLR 1. The essence of this presumption – a rebuttable one – is that Parliament does not intend to make laws that conflict with the provisions or the basic fabric of the Federal Constitution.” (Emphasis mine)
23. Hong Leong Equipment Sdn Bhd v Liew Fook Chuan And Another Appeal [1996] 1 MLJ 481 (CA), at p. 510, 531, 532, 536-537:
“Quite apart from being a proprietary right, the right to livelihood is one of those fundamental liberties guaranteed under Pt II of the Federal Constitution. See Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261 and the cases cited therein. The reasons for the view taken having been expressed by the majority in that case, I find it unnecessary to repeat them here. Suffice to say that the expression ‘life’ appearing in art 5(1) of the Federal Constitution is wide enough to encompass the right to livelihood.
The desire of Parliament to protect the nation’s workforce from the harshness of an unbending and inveterate common law and doctrines of equity, as expressed by the passing of the Act, may thus be seen to be entirely in harmony with the terms of the supreme law of the Federation. The high standards of social justice so carefully established by the legislature and by the framers of the Federal Constitution ought not, in my judgment, to be consciously lowered by any decision of this court.” (Emphasis mine)
“We, on the other hand, have the Federal Constitution which declares itself as the supreme law of the Federation. I am therefore of the view that while the decisions of the courts of these countries may be useful guides, we ought not to slavishly follow them in disregard to the provisions of the Federal Constitution. I think that our courts owe it to those who won us our freedom from the colonial yoke, and gave to us an activist and dynamic written constitution, to decide issues of public law by reference to that supreme law, using as our primary guides, decisions of courts of countries which have constitutional provisions akin to our own. But when we do so, we should also bear in mind any difference in language between like provisions in the respective constitutions. Regard should also be had to the national ethos, our own cultural background and the larger objective which a democratically-elected government is seeking to achieve. For a constitution is a living document, and the concepts it houses in broad and liberal language must perforce be interpreted broadly and liberally in accordance with the particular needs of a developing society.” (Emphasis mine)
“I have made these observations in order to emphasize the existence in the Federal Constitution of provisions, such as arts 5(1) and 8(1), which are of wide import and contain principles that are capable of meeting any issue of public law that arises for decision. The combined effect of these two articles is to require all state action to be fair and just; and they strike at arbitrariness even in the discharge of administrative functions. Procedural fairness is accordingly part of our law, not by reason of the application of English cases, but because of the terms of arts 5(1) and 8(1). See Raja Abdul Malek Muzaffar Shah v Setiausaha Suruhanjaya Pasukan Polis [1995] 1 MLJ 308; Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261.” (Emphasis mine)
“In my judgment, as a general rule, procedural fairness, which includes the giving of reasons for a decision, must be extended to allcases where a fundamental liberty guaranteed by the Federal Constitution is adversely affected in consequence of a decision taken by a public decision-maker. Whether a particular right is a fundamental liberty, and therefore falls within the wide encompass of any of the articles under Pt II of the Federal Constitution is a question that has to be dealt with on a case by case basis.” (Emphasis mine)
24. Tan Teck Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261 (CA), p. 281, 283, 288:
“In my judgment, it is wholly unnecessary for our courts to look to the courts of England for any inspiration for the development of our jurisprudence on the subject under consideration. That is not to say that we may not derive useful assistance from their decisions. But we have a dynamic written constitution, and our primary duty is to resolve issues of public law by having resort to its provisions.” (Emphasis mine)
“When the constitutionality of State action; be it legislative (which is not the case here) or administrative; is called into question on the ground that it infringes a fundamental right, the test to be applied is, whether that action directly affects the fundamental rights guaranteed by the Federal Constitution, or that its inevitable effect or consequence on the fundamental rights is such that it makes their exercise ineffective or illusory. This was laid down by the Supreme Court in its landmark decision in Dewan Undangan Negeri Kelantan & Anor v Nordin bin Salleh & Anor [1922] 1 MLJ 697.” (Emphasis mine)
“In my judgment, the courts should keep in tandem with the national ethos when interpreting provisions of a living document like the Federal Constitution, lest they be left behind while the winds of modern and progressive change pass them by. Judges must not be blind to the realities of life. Neither should they wear blinkers when approaching a question of constitutional interpretation. They should, when discharging their duties as interpreters of the supreme law, adopt a liberal approach in order to implement the true intention of the framers of the Federal Constitution. Such an objective may only be achieved if the expression ‘life’ in art 5(1) is given a broad and liberal meaning.” (Emphasis mine)
25. Saravanan a/l Thangathoray v Subashini a/p Rajasingam [2007] 2 MLJ 705 (CA), [dissenting]:
“[12] … The fact that the legislature is given the power to legislate on these matters but it does not as yet do so, will not detract from the fact that those matters are within the jurisdiction of the Syariah court within the contemplation of paragraph 1 of the State List and which jurisdiction is ousted from the courts mentioned in art 121(1) of the Constitution. If the state legislature has not as yet legislated specifically on the matter, it is within its competency to do so in the future by virtue of the powers given under art 74 of the Federal Constitution. Therefore, when these matters are in issue, the jurisdiction is clothed in the Syariah court and not in the courts mentioned in art 121(1), notwithstanding the absence of express provisions in the state enactments at the time the issue arises.” (Emphasis mine)
26. Repco Holdings Bhd v Public Prosecutor [1997] 3 MLJ 681 (HC), at p. 690, 691:
“In my judgment, having regard to the authorities read before me, the expression ‘conduct’ appearing in art 145(3) and in the two impugned subsections carries the same meaning. Since the Constitution exclusively authorizes the Attorney General to conduct prosecutions, in must follow, as night follows day, that no other authority may be lawfully empowered to exercise that function. Therefore, it is my opinion, that s 126(2) of the SIA is ultra vires art 145(3) of the Federal Constitution save to the extent I shall now indicate.
Subsection (2) of s 126 of the SIA refers to the conducting of a prosecution by the Registar of Companies or by someone authorized by such Registrar in writing. As a matter of practice, the Registar of Companies is usually a senior member of the Judicial and Legal Service. He or she is normally gazetted as a deputy public prosecutor. So, if the Registar of Companies is a gazetted deputy public prosecutor and in such capacity conducts a prosecution of an offence under the SIA, that would not be caught by art 145(3) of the Constitution. But the Chairman of the Securities Commission is not placed on an equal footing. He is therefore not authorized lawfully, that is to say constitutionally, to authorize or to conduct prosecutions under the SIA.” (Emphasis mine)
“Turning now to s 39(2) of the SCA, it is my judgment that this subsection wholly contravenes art 145(3). By reason of art 4(1) of the Federal Constitution, it being a law which is inconsistent with the Constitution, the subsection gives way. I would declare it void and unconstitutional.”
“In arriving at my decision, I have not overlooked the important principles that govern the interpretation of written constitutions. Our Federal Constitution is a living document written for all time. Its language compresses within it ideas that are manifold and concepts that are multifaceted. The task of the judicial interpreter of such a document is not to place it in a coffin and nail the lid but to breathe life into it and to give effect to the full breadth and width of its great language. That is the spirit in which our courts have approached our Constitution on previous occasions. In this context, I need only mention the decisions of our Supreme Court in Dewan Undangan Negeri Kelantan & Anor v Nordin bin Salleh & Anor [1992] 1 MLJ 697; Mamat bin Daud & Ors v Government of Malaysia [1988] 1 MLJ 119; Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan Malaysia& Anor [1996] 1 MLJ 261 and Hong Leong Equipment Sdn Bhd v Liew Fook Chuan and another appeal [1996] 1 MLJ 481.
There is, no doubt a presumption; even a strong presumption; that an Act of Parliament is constitutional. It would require much conviction to strike down a solemn act of legislation by a democratically elected Parliament. Nevertheless, once it has been amply demonstrated, as has been done in the present case, that an Act of Parliament contains provisions that are in direct conflict with the supreme law, it is the duty of this court to say so clearly and unequivocally.” (Emphasis mine)
Note: GSR, though then a Court of Appeal judge, was empaneled to sit in a High Court hearing pursuant to Article 122AA(2) of the Federal Constitution.
[1] FMT Reporters. “Former Federal Court judge Gopal Sri Ram dies, aged 79”. Free Malaysia Today, 29th January 2023, https://www.freemalaysiatoday.com/category/nation/2023/01/29/former-federal-court-judge-gopal-sri-ram-dies-aged-79/. Accessed 30th January 2023.
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