[1994] 1 MLJ 566. In that case the Supreme Court laid down some of the tests to be applied in determining whether the impugned law is consistent with Art.10 (2) (a) of the Constitution. The Court held, firstly, that there is a strong presumption of the constitutionality of the impugned law and the burden of proof lies on the party seeking to establish the contrary. And in deciding whether a particular piece of legislation falls within the orbit of permitted restrictions, consideration must be given to the question whether such law is directed at a class of acts too remote in the chain of relation to the subjects enumerated under Art. 10(2) (a). The test as propounded by the Court is that the connection contemplated must be real and proximate, not far-fetched or problematical. [31] However, since the Court of Appeal’s decision in Dr. Mohd Nasir Hashim v. Menteri Dalam Negeri Malaysia [2007] 1 CLJ 19, the Court had imposed a further restriction on the law touching on the fundamental rights guaranteed by the Constitution by applying the “reasonable” and “proportionality” tests in determining whether the impugned law is consistent with the Constitution. [32] In that case, Gopal Sri Ram JCA (as he then was) at pages 28 and 29 stated: “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] 2 CLJ 771. 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 in Menara Panglobal Sdn Bhd v. Ariokianathan [2006] 2 CLJ 501. 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.” The two tests were later affirmed by the Federal Court in Sivarasa Rasiah v. Badan Peguam Malaysia & Anor [2010] 2 MLJ 333. [33] – [34] 7

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