Article 4(1) of the Federal Constitution, which provides the following, empowers the courts to strike down provisions which are inconsistent with the Federal Constitution:[1]

“This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void”

This article intends to present a non-exhaustive list of provisions which have been struck down by the courts in 2022 and 2023 as being unconstitutional.

2022

1. Sections 3 and 7 of the Pensions Adjustment (Amendment) Act 2013 & Sections 3 and 6 of the Pensions Adjustment Act 1980 [as amended by Sections 3 and 7 of the Pensions Adjustment (Amendment) Act 2013]

Section 3 of the Pensions Adjustment (Amendment) Act 2013 substituted Section 3 of the Pensions Adjustment Act 1980 with a new provision of an annual increment of pensions and other benefits by 2%.[2]

Meanwhile, Section 7 of the Pensions Adjustment (Amendment) Act 2013 deleted Section 6 of the Pensions Adjustment Act 1980 on the corresponding last drawn salary of an officer.[3]

The Court of Appeal in Aminah bt Ahmad (suing in her personal capacity and on behalf of 56 retired members of the public services) v The Government of Malaysia & Anor [2022] 4 MLJ 74 struck down the impugned provisions as they were in contravention of Article 147 of the Federal Constitution:

“[47] Accordingly, we make the following declarations:

(a) a declaration that ss 3 and 7 of the Pensions Adjustment (Amendment) Act 2013 are null and void being in contravention of art 147 of the Federal Constitution; and

(b) a declaration that ss 3 and 6 of the Pensions Adjustment Act 1980 as amended by ss 3 and 7 of the Pensions Adjustment (Amendment) Act 2013 and in force since 1 January 2013 are null and void being in contravention of art 147 of the Federal Constitution.

[48]  In substance these declarations are not inconsistent with the actual declarations sought. With these declarations, the situation prevailing before the amendment to s 3 of the PAA 1980 will be revived and continue to apply.”[4] (Emphasis mine)

On appeal to the Federal Court, in The Government of Malaysia & Anor v Aminah bt Ahmad (suing in her personal capacity and on behalf of 56 retired members of the public service) [2023] 5 MLJ 32, the Federal Court agreed with the Court of Appeal’s striking down of the impugned provisions:

“For the above said reasons, we are of the considered view that the amendments to ss 3 and 6 of the PAA 1980 brought about by ss 3 and 7 of the 2013 Amendment Act had resulted in a less favourable situation to the respondents and thus contravene art 147 of the Federal Constitution.”[5] (Emphasis mine)

2. Section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003

The impugned provision granted the Syariah High Court jurisdiction to hear applications for judicial review of decisions made by bodies under the Administration of the Religion of Islam (State of Selangor) Enactment 2003:

“The Syariah High Court, may, in the interest of justice, on the application of any person, have the jurisdiction to grant permission and hear the application for judicial review on the decision made by the Majlis or committees carrying out the functions under this Enactment.”[6] (Emphasis mine)

The Federal Court in SIS Forum (M) v Kerajaan Negeri Selangor (Majlis Agama Islam Selangor, intervener) [2022] 2 MLJ 356 struck down the impugned provision on the basis that the provision was a provision which the Selangor State Legislative Assembly has no power to make (pursuant to the State List[7]):

“Reading s 66A of the ARIE 2003 as it stands and upon analysing the basis for judicial review in this country, I find that s 66A of the ARIE 2003 is unconstitutional and void, as it is a provision which the SSLA has no power to make. I accordingly find that the petitioner has overcome the threshold of the presumption of constitutionality.

The petition is allowed and the following declaration as prayed for is unanimously granted:

A Declaration that Section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 is invalid on the ground that it makes provision with respect to a matter with respect to which the Legislature of the State of Selangor has no power to make, and as such, that said provision is unconstitutional, null and void.”[8] (Emphasis mine)

2023

1. Section 20 of the Extradition Act 1992

The impugned provision laid out the procedure before the Sessions Court where a special direction has been given by the Minister under Section 4 of the Extradition Act 1992.[9]

In Wong Ong Hua & Anor v Public Prosecutor, Malaysia & Ors [2023] MLJU 646 (“Wong Ong Hua”), the High Court struck down the impugned provision on the basis that it offends Article 121(1) of the Federal Constitution:

“In the circumstances of the case, s 20, read together with s 4 of the EA, offends Art 121(1) of the Federal Constitution and ought, therefore, to be struck down, and I so hold.”[10] (Emphasis mine)

It is worth noting that Wong Ong Hua is only a decision of the High Court, and is open to the possibility of being reversed on appeal.[11]

2. Section 4C of the Income Tax Act 1967

The impugned provision considered compensation from compulsory acquisition of land as business income, and therefore subject to income tax:

“For the purpose of paragraph 4(a), gains or profits from a business shall include an amount receiveable arising from stock in trade parted with by any element of compulsion including on requisition or compulsory acquisition or in a similar manner.”[12] (Emphasis mine)

The Federal Court in Wiramuda (M) Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2023] 4 MLJ 753 struck down the impugned provision as it was in contravention of Article 13(2) of the Federal Constitution:

“For the reasons stated above, we answered question 2 in the affirmative, ie that s 4C of the ITA 1967 is in contravention of art 13(2) of the Federal Constitution as it deprives the appellant of the adequate compensation awarded in accordance with the LAA 1960. Section 4C is thus unconstitutional and liable to be struck down.”[13] (Emphasis mine)

3. Section 498 of the Penal Code

The impugned provision made enticing or taking away or detaining with a criminal intent a married woman, a criminal offence:

“Whoever takes or entices away any woman who is and whom he knows, or has reason to believe, to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals, or detains with that intent any such woman, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.”[14]

In Lai Hen Beng v Public Prosecutor [Federal Court Civil Reference No. 06(RJ)-3-04/2023(B)],[15] the Federal Court struck down the impugned provision as it violated Article 8(2) of the Federal Constitution:

“Having considered the law and parties’ respective submissions, we are convinced that section 498 is unconstitutional for the reason that it unlawfully discriminates only on the ground of gender which is violative of Article 8(2).”[16]


[1] See also SIS Forum (M) v Kerajaan Negeri Selangor (Majlis Agama Islam Selangor, intervener) [2022] 2 MLJ 356 (FC), at para 41

[2] https://wwwex.ilo.org/dyn/natlex2/natlex2/files/download/95606/MYS95606.pdf#page=4

[3] https://wwwex.ilo.org/dyn/natlex2/natlex2/files/download/95606/MYS95606.pdf#page=7

[4] Aminah bt Ahmad (suing in her personal capacity and on behalf of 56 retired members of the public services) v The Government of Malaysia & Anor [2022] 4 MLJ 74 (CA), at paras 47-48

[5] The Government of Malaysia & Anor v Aminah bt Ahmad (suing in her personal capacity and on behalf of 56 retired members of the public service) [2023] 5 MLJ 32 (FC), at para 46

[6] See SIS Forum (M) v Kerajaan Negeri Selangor (Majlis Agama Islam Selangor, intervener) [2022] 2 MLJ 356 (FC), at para 9

[7] SIS Forum (M) v Kerajaan Negeri Selangor (Majlis Agama Islam Selangor, intervener) [2022] 2 MLJ 356 (FC), at para 68

[8] SIS Forum (M) v Kerajaan Negeri Selangor (Majlis Agama Islam Selangor, intervener) [2022] 2 MLJ 356 (FC), at paras 93 & 95

[9] See http://www.commonlii.org/my/legis/consol_act/ea1992149/

[10] Wong Ong Hua & Anor v Public Prosecutor, Malaysia & Ors [2023] MLJU 646 (HC), at para 80

[11] As at the time of writing, the matter is pending in the Court of Appeal [Civil Appeal No. W-01(A)-66-02/2023]

[12] Wiramuda (M) Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2023] 4 MLJ 753 (FC), at para 33

[13] Wiramuda (M) Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2023] 4 MLJ 753 (FC), at para 54

[14] See https://www.burgielaw.com/resources/act?act_title=Penal+Code&section=498

[15] https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=fb326ec5-25df-45d4-9ade-e23938338f45&Inline=true

[16] Lai Hen Beng v Public Prosecutor [Federal Court Civil Reference No. 06(RJ)-3-04/2023(B)] (FC), at para 25