[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
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents