Malaysian constitutional rights and rights adjudication

As we have seen above, proportionality is not the only method of rights adjudication. But proportionality is important in Malaysian constitutional law – and, hence, it is the lens through which we will conduct much of the analysis in this article – because it has been touted as the prime method. The Federal Court has called it ‘an essential requirement of any legitimate limitation of an entrenched right’.Footnote ¹⁵ To illustrate why this is so, it will be useful to discuss the rights provisions in the Federal Constitution and then catalogue the various tests for compatibility with constitutional rights provisions other than proportionality.

With a few exceptions,Footnote ¹⁶ rights provisions in the Federal Constitution have a two-part format: they set out a right, then permit state interference with the right, but only on certain grounds (for example, ‘Parliament may by law impose’ on the freedom of association ‘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’)Footnote ¹⁷ or in a certain manner (for example, ‘No person shall be deprived of his life or personal liberty save in accordance with law.’)Footnote ¹⁸

Faced with such rights provisions, the Malaysian courts could conceivably apply one of four possible approaches. The first, and weakest, involves merely asking whether a law has been passed by the Legislature in accordance with certain criteria of formal validity (for example, whether royal assent has been given).Footnote ¹⁹ The problem with this approach is clear: it reduces the courts to playing a merely clerical role of ensuring that the right number of votes were cast in Parliament and the right signature appears on the bill. Moreover, it would make a mockery of the fundamental liberties provisions since their very purpose is to impose legal limits on legislative action beyond merely formal ones – otherwise, the fundamental liberties provisions might as well not exist.

Second, the courts could ask whether Parliament, in its deliberations, had regard to the need to uphold the fundamental liberties. After all, Members of Parliament are oath-bound to ‘preserve, protect and defend’ the Federal Constitution.Footnote ²⁰ The problem is that the Federal Constitution expressly forecloses many such arguments. For example, the ‘validity of any law shall not be questioned’ merely on the ground that, say, it engages the Article 10(1) rights to freedom of speech, assembly, or association, but the restrictions it imposes on that freedom ‘were not deemed necessary or expedient by Parliament for the purposes mentioned in that Article’.Footnote ²¹ Clearly, the courts are forbidden from attempting to read Parliament's mind or peer into its thought process. Besides, given the aforementioned oath, it would be nearly impossible to prove that Parliament has not directed its mind to the fundamental liberties. Surely, if Parliament made such an omission, it would at least take steps to give the impression that it did.

Third, the courts could ask what the subject-matter of the legislation is. For example, they could say that a law that engages the freedom of expression is constitutionally valid if, objectively speaking, it has some link with the ‘security of the Federation’, ‘public order’, or ‘morality’. However, there are two problems with this approach. First, such an approach is not applicable to certain rights such as in Article 5(1) of the Federal Constitution, which define permissible state restrictions not in terms of their subject-matter, but instead more vaguely in terms of whether they are ‘in accordance with law’. Second, the stated categories of subject-matter are very broad indeed; it is not at all difficult to make out some relation with one of those categories. For example, according to the courts, the term ‘public order’ encompasses everything from ‘danger to human life and safety’ to the ‘disturbance of public tranquillity’ to ‘public health’,Footnote ²² as long as it pertains to the ‘even tempo of the life of the community taking the country as a whole or even a specified locality’.Footnote ²³ Even an act affecting ‘merely an individual leaving the tranquillity of the society undisturbed’ can fall within the ambit of ‘public order’, if it ultimately has some effect (even if indirect) on society generally.Footnote ²⁴

Fourth, the court could ask about the effect of the legislation in question on fundamental liberties. Various flavours of this approach have emerged in Malaysian law. One old approach (which has since fallen into disuse) involves asking whether legislation makes the exercise of a constitutional right ‘ineffective or illusory’Footnote ²⁵ Another is the proportionality test.

These are not necessarily the only possibilities. In particular, an additional possibility is that the courts could apply a relatively permissive approach when reviewing legislation, but apply a stricter standard when reviewing the constitutionality of executive action taken pursuant to that legislation. For example, the courts could hold that any law requiring a police permit for a public assembly to be held is constitutionally valid, but then subject individual decisions by the police to withhold (or impose conditions on) a permit to stricter analysis. However, it appears that the Malaysian courts have yet to explore the possibility of such an approach.

Why focus on proportionality?

So there is a diversity of possible approaches toward rights adjudication (even after discounting the patently incorrect ones). Nonetheless, proportionality deserves special attention for several reasons.

First, the Malaysian courts have drawn special attention to it. Even when they have arguably not performed proportionality analysis in substance, they have often at least seen the need to purport to do so.

Second, a positive case can be made in favour of proportionality analysis. Proportionality provides a structure – as Stone Sweet and Mathews put it, an ‘analytical procedure’Footnote ²⁶ – through which ‘counsel [can] sequence their arguments’Footnote ²⁷ and courts can not only justify individual decisions, but also ‘rationalize and defend rights review’ more generally.Footnote ²⁸ Moreover, this structure is particularly suited to constitutional rights adjudication, which very often requires a court to balance, in a coherent manner, a right and the grounds on which the state is entitled to limit the right.Footnote ²⁹

At this point, caution is needed. Some may also seek to justify proportionality analysis on normative grounds. Indeed, there are some normative benefits which are inherent in any flavour of proportionality analysis, such as the idea that proportionality creates a ‘culture of justification’Footnote ³⁰ according to which ‘every exercise of power is expected to be justified’.Footnote ³¹ As a matter of principle, it is not difficult to disagree,Footnote ³² but others have proffered normative justifications for proportionality such as that it promotes the value of (a particular conception of) the ‘individuality and the dignity of the human being’.Footnote ³³ These create a particular danger, because such values are not universal (or universally conceived of in the same way). If one were to seek to justify transplanting a proportionality doctrine into a given jurisdiction on the basis of such values, one could easily be rebuffed by pointing out such differences in values.

Nonetheless, while proportionality – like any exercise in constitutional rights adjudication – is not value-neutral, it does not necessarily import a particular set of values. As Yap points out, proportionality is a ‘doctrinal construction and an analytical procedure’, but it ‘does not – in itself – produce substantive outcomes’ because everything comes down to judges’ particular ‘choices’ about how to perform proportionality analysis.Footnote ³⁴ In addition, to the extent that proportionality is necessarily value-laden, those values are simply those drawn from the Constitution itself.Footnote ³⁵

Therefore, this writer, like Stone Sweet and Mathews, does not see proportionality as a ‘miracle cure-all that will make hard constitutional questions easier to answer’.Footnote ³⁶ Neither is it this writer's view that proportionality analysis is desirable merely because the state is (to put it crudely) less likely to win. There is nothing intrinsically right about state action being found constitutionally valid. Indeed, we should be worried if it is not.Footnote ³⁷ But what is important is that, if the state wins, it does so because the court has scrutinised its reasoning and/or conclusions and found them adequate, and not merely because some merely formal test has been passed.

That said, proportionality has become a locus of contemporary debates about constitutional adjudication in Malaysia. This has led to problems, because courts which do not favour proportionality analysis are left without a robust method of rights adjudication. In some cases, the courts incant the word ‘proportionality’, but their analysis collapses into the first, second, or third of the methods of rights adjudication mentioned above – which, for reasons already explored, is problematic because it risks reducing the judicial role to the vanishing point. In others, the courts have, in abandoning proportionality (whether in substance or in name), thrown the baby out with the bath-water and failed to perform any meaningful review of legislation vis-à-vis constitutional rights.

While there would in principle be nothing wrong with abolishing proportionality analysis, proponents of removing proportionality analysis risk being seen as undermining these worthy aims unless they provide a viable alternative means to achieve them.

On a more prosaic note, the value of consistency demands that any judicial departure from established doctrine be justified, or, at the minimum, recognised as a departure. Perhaps proportionality exists as a legal doctrine, or perhaps it does not. It may even be that proportionality analysis applies in certain cases but not others, or applies with a variable level of intensity depending on certain factors. But the rule of law would suffer if – as is presently the state of play in Malaysian law – it is not even possible to state with certainty the law surrounding constitutional adjudication. As the Federal Court put it in 2012: ‘It is of supreme importance that people may know with certainty what the law is … Little respect will be paid to our judgments if we overthrow that one day which we have resolved the day before. “We cannot say that the law was one thing yesterday but is to be something different tomorrow.”’Footnote ³⁸

Possible attempts to explain inconsistency

One might respondFootnote ³⁹ that what appears to be inconsistency in judicial decisions, or a failure to perform proportionality analysis in anything more than name, is merely the manifestation of a diversity of judicial philosophies toward rights adjudication. Of course, judges do not all think the same way, and indeed the law would suffer if they did. But the value of judicial disagreement lies in the fact that that disagreement is reasoned, and not merely asserted. Unfortunately, it appears that there are not even agreed ground rules or principles as to the very point of constitutional review, and when the courts have eroded rights adjudication, they have not even squarely confronted that this is the result of their doctrinal developments.

One might also speculate on possible reasons why the proportionality doctrine might or might not apply in certain categories of cases depending on the subject-matter. This writer would decline to do so. It would, of course, be possible to attempt to spot patterns, and perhaps even to isolate them from other variables such as judicial philosophy. Nonetheless, this article focuses on legal doctrine as articulated in the cases, and not so much on possible reasons underlying the articulation of the conclusion. After all, if one were to speculate that the courts are reluctant to apply proportionality in (say) cases involving politicians, one may as well speculate that the courts would have an incentive to disguise the bias (for such speculation is, in substance, an allegation of bias) by cloaking it in the language of proportionality. Therefore, this article takes the case law at its highest, presuming that each judgment represents the judge's best attempt to decide each case in accordance with the product of the best attempt to say what the law is, and, where appropriate, critiques the judgment on that basis.Footnote ⁴⁰

Of course, this is not to deny the impact that contextual factors can have on the case law. The literature identifies the relevant context as the lingering spectre of the 1988 Malaysian judiciary crisis.Footnote ⁴¹ The crisis began when several judges were impeached and removed from office after the then-Lord President of the Supreme Court of Malaysia, Tun Salleh Abas, wrote to the Yang di-Pertuan Agong (the King) expressing concern about comments made by Prime Minister Dr Mahathir Mohamad about the judiciary.Footnote ⁴² The Prime Minister retaliated by initiating the process to have the Lord President removed from office.Footnote ⁴³ Five judges granted the Lord President's application for an order restraining the removal process; they were suspended and two were eventually removed from office. The Lord President himself was eventually removed. These, says Sinnadurai, ‘were the most shocking incidents to affect the judiciary … the safeguard against executive interference on the judiciary were destroyed’.Footnote ⁴⁴

One might suppose that courts would decide cases involving certain topics with this incident in mind. But the evidence does not support that theory. The recent case in which a majority of the Federal Court repudiated proportionality in all but name – Letitia Bosman – involved drug trafficking. Even if one calls this a politically sensitive area, one must note that the next most recent case in which the Federal Court embraced proportionality analysis – Alma Nudo Atenza – was also about drug trafficking. Even in cases involving political rights, such as the freedom of (political) expression, the courts do not uniformly refuse to engage with proportionality. For example, in Hilman – which concerned a ban on university students from ‘expressing support for or sympathy with or opposition to… any political party’ – the majority considered proportionality while the minority did not.Footnote ⁴⁵ In Nik Nazmi, another case involving a political assembly, the Court of Appeal unanimously ruled in the applicants’ favour and against the state.Footnote ⁴⁶

In short, contextual factors do not fully explain why the Malaysian courts have ‘t[aken] an unsteady approach to constitutional adjudication’, sometimes ‘assertive’ or ‘empowered’, and sometimes doing an ‘about-face’.Footnote ⁴⁷ Therefore, I will undertake a primarily doctrinal approach instead, focusing on the courts’ reasoning and whether it stands up to scrutiny.

Before proportionality: little meaningful check on state action

There was a time when the Malaysian courts read the fundamental rights provisions as creating mostly formal, and rarely substantive, constraints on legislative power.

Take, for example, the freedom of expression. Article 10(1)(a) of the Federal Constitution provides that ‘every citizen has the right to freedom of speech and expression’, but Article 10(2)(a) states that ‘Parliament may by law impose’ on this right ‘such restrictions as it deems necessary or expedient’ for various purposes (such as ‘public order’ and ‘morality’). In the 1994 case of Pung Cheng Choon, the Supreme Court (as the Federal Court was then known) held that ‘the scope of the court's inquiry is limited to the question whether the impugned law comes within the orbit of the permitted restrictions’.Footnote ⁴⁸ The court inquired into whether the law (ostensibly) had some link with ‘public order’ or ‘morality’. But the court would not go further and ask whether the law was reasonable or proportionate. The courts in later cases followed suit, and therefore their role in constitutional rights review was often merely clerical.

Moreover, as we have seen, Parliament could even omit to direct its mind to whether that state interest is really engaged. For example, the Federal Constitution expressly states that a law may not be struck down as violating the rights to freedom of speech, assembly, or association merely because Parliament did not really consider it ‘necessary or expedient’ to pass that law.Footnote ⁴⁹

The first and second waves of cases: ‘proportionality’ put in place, but built on foundations of sand

Then came the 1996 case of Tan Tek Seng,Footnote ⁵⁰ where the Court of Appeal (Malaysia's intermediate superior court, between the High Courts and the Federal Court) mentioned proportionality for the first time. This began the first of what this writer has called five ‘waves’ of cases. In the first two ‘waves’, the courts developed what appears to be proportionality doctrine and cemented it in Malaysian constitutional law.Footnote ⁵¹ But after the judge largely responsible for these developments, Justice Gopal Sri Ram, retired, it became clear that the foundations of proportionality analysis were not as solid as they first appeared.Footnote ⁵² In the third ‘wave’ of cases, ‘[s]ome Court of Appeal cases simply ignored Federal Court jurisprudence on proportionality; some purported to apply proportionality but failed to do so properly; others applied proportionality reasoning in a more rigorous manner.’Footnote ⁵³

This writer identified two main problems. First, the textual basis for proportionality analysis was unclear, and it was not clear precisely which constitutional rights were amenable to proportionality analysis. Second, even when the case law purported to apply a proportionality test, it did not always do so clearly.Footnote ⁵⁴

There is a third problem. A close examination of the cases discloses little reasoning as to why any doctrine of proportionality should apply. There was, to be sure, the statement that Parliament cannot possibly be ‘free to impose any restriction [on constitutional rights] however unreasonable that restriction may be’.Footnote ⁵⁵ But why should proportionality be the solution? The proportionality doctrine had no basis in either authority, principle, or the constitutional text; the cases merely asserted that it applied. This, in turn, gave rise to two more problems. First, in later waves of cases, the courts could sweep away proportionality (and, for reasons that will be explained later, other forms of substantive rights review) by exposing that proportionality rested on foundations of sand. Second, even when proportionality analysis does apply, because it is not clear why it does, the courts lack a clear sense of principle as to how to apply it.

Consider Tan Tek Seng, in which Gopal Sri Ram JCA attached importance to the ‘all pervading’Footnote ⁵⁶ equality clause in Article 8(1) of the Federal Constitution. He asserted that the main principle is this:

In support of this, Gopal Sri Ram JCA cited an older Supreme Court case, Nordin,Footnote ⁵⁸ which in turn cited an Indian case called Mian Bashir,Footnote ⁵⁹ which in turn cited another Indian case called Maneka Gandhi.Footnote ⁶⁰

However, Gopal Sri Ram JCA then went on to cite Maneka Gandhi for another proposition, namely, that Article 14 of the Indian Constitution (equivalent to Malaysia's Article 5(1) of the Federal Constitution) contains a ‘great equalizing principle’ that should be interpreted not in a ‘narrow, pedantic or lexicographic’ manner, but rather having regard to the ‘all-embracing scope and meaning’ of equality. This, in turn, meant that ‘Art 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment’, which in turn demanded ‘reasonableness’.Footnote ⁶¹

So it appears that Gopal Sri Ram JCA – then a Court of Appeal judge, bound by the Supreme Court's decisions – treated the decision in Nordin as importing everything that Maneka Gandhi said into Malaysian law: ‘By reason of the decision of our Supreme Court in Nordin's case I do not think it is open to me to ignore the new approach to the construction of art 8(1).’Footnote ⁶² The problem is that the Supreme Court in Nordin said no such thing. It made no reference to Article 8 of the Federal Constitution, nor to ‘equality’ or the prevention of ‘arbitrary’ state action.

In other words, in asserting that the Federal Constitution demanded that state action be proportionate, the Court of Appeal in Tan Tek Seng made a bare appeal to authority. However, the authority did not even support the principle that the Court of Appeal said it did. Maneka Gandhi did not speak of proportionality, save to say that extreme disproportionality could mean that a right was for all intends and purposes ‘abridge[d] or take[n] away’.Footnote ⁶³ This is not Nyambirai/de Freitas-style proportionality either in form or in substance. Nordin, meanwhile, did not mention proportionality of any sort at all.

In short, Tan Tek Seng provided neither a normative basis for proportionality, nor even a basis for it grounded in stare decisis. Neither did the next case, Nasir.Footnote ⁶⁴ There, Gopal Sri Ram JCA claimed that another Court of Appeal judge had applied a ‘principle of substantive proportionality’ in another case, Menara PanGlobal.Footnote ⁶⁵ That case concerned a challenge to a decision of the Industrial Court, which held that an employer was justified in dismissing its employee. The Court of Appeal did not apply any proportionality test. Instead, it applied a test of irrationality. The Court of Appeal held that the decision to dismiss the employee was not ‘irrational’ because it was ‘proportionate’.Footnote ⁶⁶ It does not follow that a decision may be struck down on the ground of disproportionality, because not all disproportionality necessarily amounts to irrationality.

Gopal Sri Ram JCA also cited an Indian case, Om Kumar. There, the Indian Supreme Court remarked obiter that Article 14 of the Indian Constitution calls for a proportionality test.Footnote ⁶⁷ But it only said that proportionality is called for (a) when a constitutional right that expressly allows only ‘reasonable’ restrictions on the right is engaged; or (b) when the right engaged is the right to equality. By contrast, the right at stake in Nasir was not the right to equality, and no Malaysian constitutional rights provision provides that the state may only burden the right with ‘reasonable’ restrictions.

In short, all that Nasir boils down to is a bare assertion that restrictions on rights must not be rendered ‘illusory’; must be ‘reasonable’, and hence must be ‘proportionate’.Footnote ⁶⁸ What is lacking is an explanation of how these concepts – only the first of which finds grounding in authority – relate to each other. And, as Ong pointed out earlier, it is not clear how the Court of Appeal's analysis in Nasir amounts to proportionality analysis.

In short, the early cases which claim to be about proportionality, on closer examination, only say that the state may not completely nullify a constitutional right. The ‘foundations’ which later cases were built on, then, were made of sand. The first-wave cases disclose no basis for the proportionality doctrine in the constitutional test, authority, or principle.

The same may be said of the ‘second wave’ of cases, which cite nothing more than the ‘first wave’ of cases (and cases citing those cases) as authority for the proportionality test. There is, at most, an assertion that proportionality applies by virtue of Article 8(1) of the Federal Constitution,Footnote ⁶⁹ backed up by an equation – without support – of the concepts of ‘equality’, ‘reasonableness’, the prevention of ‘arbitrariness’, and proportionality. To the extent that these assertions are supported by foreign case law, that case law may be distinguished. For example, in Sivarasa, the Federal Court cited the de Freitas case,Footnote ⁷⁰ which hung the proportionality test on the peg of a constitutional provision that restrictions on a right had to be ‘reasonably justifiable in a democratic society’Footnote ⁷¹ – words that do not appear in the Malaysian Federal Constitution.

The third wave: again, little meaningful check on state action

These problems are not merely academic. The key issue was that the proportionality test rested on foundations of sand – on assertions, not on arguments of principle, nor even on sound appeals to well-established Malaysian authority. Meanwhile, there had emerged no sound alternative to anchor constitutional rights adjudication in the event that the sand gave way. As a result, when the ‘third wave’ of cases – decided after the architect of the first two waves, Justice Gopal Sri Ram, retired – washed the sand away, Malaysian law was left with no established robust approach to constitutional adjudication.

Recall that the proportionality doctrine was based on the assumption that ‘reasonable’ means ‘proportionate’. But as the Court of Appeal recognised in Yuneswaran,Footnote ⁷² Malaysian constitutional rights provisions do not even call for ‘reasonableness’ analysis. Meanwhile, the old ‘ineffective or illusory’ test had withered away, having been obscured by the first- and second-wave cases on ‘proportionality’. The upshot was that – as this writer put it – ‘legislation is proportionate as long as it is passed by Parliament and has (or purports to have) some legitimate purpose’.Footnote ⁷³ The court's role was, once again, reduced to a merely clerical one.

Yuneswaran demonstrates the dangers of a court laying down a test (say, proportionality) without foundation. When another court exposes the lack of foundation, it over-corrects against what it sees as a lack of fidelity to the constitutional text by instead applying an extreme textualist view, shorn of attention to matters of principle such as the need for the judiciary to play a meaningful role in constitutional rights review and not merely a clerical one. In Yuneswaran, the Court of Appeal did just that: it swept away not only the proportionality test, but also other possible tests. So, while the fourth wave of cases ‘rehabilitate[d]’ the proportionality doctrine,Footnote ⁷⁴ the cases did little more than to cite the cases in the first two waves, flaws and all. In other words, all the Federal Court did was – again – to assert that proportionality analysis was to apply, without explaining why. The foundations laid were, once again, only foundations of sand.

The fourth wave: proportionality, but why?

At this point, one might think that a proportionality test was not necessary, and perhaps Malaysian law should focus on developing alternative approaches to constitutional rights adjudicationFootnote ⁷⁵ (such as, perhaps, the old ‘ineffective or illusory’ test). Such a test might not go as far as proportionality, but it would still allow the courts to play more than a merely clerical role. But if such a test is to apply, then the word ‘proportionality’ should not feature in the case law at all because it would obscure the real issue. Judges opposed to proportionality could, like the court in Yuneswaran, over-correct by applying a test that entails no meaningful constitutional review.

But the word ‘proportionality’ reared its head again in the ‘fourth wave’ of cases. The courts insisted on applying a proportionality doctrine, founded on the authority of the first and second waves of cases. For example, Azmi bin Sharom, the first of the fourth-wave cases, cited the first-wave case of Nasir and the second-wave case of Sivarasa as authority for the proportionality test.Footnote ⁷⁶ The problem is – as we have seen – those cases themselves do not disclose any textual, normative, or precedential foundation for proportionality. Neither does Azmi itself.

In the next fourth-wave case, Gan Boon Aun,Footnote ⁷⁷ the Federal Court considered whether a derogation from the presumption of innocence was proportionate. This time, the Federal Court was on firmer ground, because it tapped on long-established strands of case law, reasoned in a detailed manner, relating to the presumption of innocence. The problem, however, is that this reasoning was specific to the presumption of innocence, and was not a justification for proportionality analysis generally.

So this writer was not quite right to say that Azmi and Gan should have made it ‘abundantly clear to the lower courts that they must apply proportionality reasoning’ and to do so ‘in substance rather than merely in form’.Footnote ⁷⁸ Except in a narrow category of cases (namely, those involving the right to presumption of innocence), the fourth-wave cases – like the first- and second-wave ones – did not disclose any clear reason why proportionality analysis should apply. Azmi is particularly problematic because it asserted that a proportionality test is to apply without explaining that that test is better than the alternatives. Nor was there any clearly articulated theory explaining why other styles of constitutional adjudication are deficient.

Background

The case reported as Alma Nudo Atenza involved Alma Nudo Atenza and Orathai Prommatat, who had in separate instances been convicted of drug trafficking.Footnote ⁸⁴ At the airport, each of them had had with her a bag containing drugs. This fact alone was sufficient to convict each of them. To understand how, it is necessary to examine various statutory provisions.

Section 39B(1)(a) of the Dangerous Drugs Act (DDA) makes it a crime to ‘traffic in a dangerous drug’. Section 2 defines ‘trafficking’ as including a variety of actions such as ‘importing’, ‘transporting’, ‘carrying’, ‘sending’, and ‘delivering’.

In seeking to prove that an accused person is guilty of drug trafficking, the prosecution has the benefit of several evidentiary presumptions. For present purposes, two are relevant:

1. a. Section 37(d) of the DDA: ‘any person who is found to have had in his custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug’.

2. b. Section 37(da) of the DDA: ‘any person who is found in possession of [a certain amount of drugs or more] …otherwise than in accordance with the authority of this Act or any other written law, shall be presumed, until the contrary is proved, to be trafficking in the said drug’.

In the 1998 case of Muhammed bin Hassan, the Federal Court had held that ‘it would be unduly harsh and oppressive’ for both presumptions to operate simultaneously.Footnote ⁸⁵ In other words, it could not be said that a person found to be in ‘custody’ or ‘control’ of a bag containing drugs was presumed knowingly to possess the drugs, and in turn presumed to have been trafficking in the drugs. In so ruling, the Federal Court did not cite any constitutional provisions, but only ordinary principles of statutory interpretation.

The Legislature subsequently inserted section 37A of the DDA: ‘Notwithstanding anything under any written law or rule of law, a presumption may be applied under this Part in addition to or in conjunction with any other presumption provided under this Part or any other written law.’ On this basis, the High Court convicted each of the accused persons of drug trafficking once it was satisfied that each of them (a) had been in ‘custody or … control’ of a bag containing drugs, and (b) failed to rebut either presumption.

The Court of Appeal's decision: only a test of formal validity; proportionality a mere afterthought

Both accused persons appealed to the Court of Appeal. Alma Nudo Atenza argued, inter alia, that section 37A of the DDA was unconstitutional, in that it effectively reversed the burden of proof, ‘erode[d] the presumption of innocence’, and rendered the trial unfair.Footnote ⁸⁶

The Court of Appeal, aware of the existence of the proportionality doctrine, cited the Federal Court case of Gan Boon Aun.Footnote ⁸⁷ In that case, which also involved a statutory presumption, the Federal Court had shown that it had ‘come to internalize the nature and purpose of proportionality reasoning and apply it in adjudication … in an unprecedentedly rigorous manner’.Footnote ⁸⁸

But instead of putting proportionality front and centre, the Court of Appeal essentially adopted the following as its first line of reasoning:

1. a. Article 5(1) of the Federal Constitution states: ‘No person shall be deprived of his life or personal liberty save in accordance with law’;

2. b. Section 37A of the DDA is a ‘law’; and

3. c. Therefore, the Constitution allows a person to be deprived of his ‘life or personal liberty’ in accordance with section 37A of the DDA.

This reasoning is clearly problematic, because it means that the only restriction on the state's ability to deprive someone of life or liberty is that the Legislature must enact a statute saying it can, and the court's only role is to check whether the statute was duly enacted. This reasoning assumes the answer to the very question that it seeks to resolve, namely, whether section 37A of the DDA is a constitutionally valid ‘law’ in the first place. An additional problem is that the Court of Appeal quoted Article 5(1) of the Federal Constitution, but said nothing about Article 8(1) – a glaring omission, considering past Federal Court cases which state that the ‘test of proportionality [is] housed in … the equal protection limb of Art 8(1)’.Footnote ⁸⁹

As startling as these propositions are, they are the implication of the following statement by the Court of Appeal in Sivarasa Rasiah:

Moreover, everything that was said about proportionality was merely a set of additional reasons to justify this conclusion. This approach belies an underlying doctrine of de facto parliamentary sovereignty (rather than substantive constitutional supremacy) according to which all the constitution requires for an Act of Parliament to be valid is that it be ‘enacted by Parliament’.Footnote ⁹¹ The Court of Appeal did issue several remarks about proportionality. But these were merely obiter, and essentially amount to a statement that any rebuttable presumption which is triggered upon the prosecution's proof of certain primary facts must pass the proportionality test:

In short, the Court of Appeal appears to have thought that Gan Boon Aun stood for the principle that statutory presumptions are constitutionally valid, despite the constitutional right to presumption of innocence, as long as they (a) are triggered only upon the prosecution's proof of certain facts, and (b) can be rebutted by the defence's proof of certain other facts. This is hardly adequate, for three reasons.

First, what the Court of Appeal said would apply to any rebuttable presumption. By contrast, the Federal Court in Gan Boon Aun explained why the particular presumption before it passed the proportionality test: for instance, the presumption had to be ‘fair and necessary’, and not ‘difficult’ to rebut, and it also mattered whether a prosecutor would face ‘difficulty … in the absence of a presumption’ and ‘the importance of what is at stake’.Footnote ⁹³ The Court of Appeal in Alma Nudo Atenza did not ask whether the presumptions in the DDA met these criteria.

Second, the Court of Appeal did not address the fact that while Gan concerned one statutory presumption, Alma Nudo Atenza involved two presumptions operating concurrently.

Third, in Gan Boon Aun, the Federal Court ‘left open the possibility that, even though [the presumption-creating statutory provision] was not in and of itself unconstitutional, a trial court's application of [that provision] could still be unconstitutional’.Footnote ⁹⁴ By contrast, in Alma Nudo Atenza, the Court of Appeal stopped at considering the proportionality of the presumptions in the abstract, rather than considering whether the presumptions as applied in the particular case before it would operate in a proportionate manner.

To put the Court of Appeal's decision in Alma Nudo Atenza in perspective, it will be useful to outline the Federal Court's approach in Gan Boon Aun. That case concerned section 122 of the Securities Industry Act, which created a presumption that when a company was guilty of certain offences, then its directors and various officers were also guilty unless each ‘prove[d] that the offence was committed without his [or her] consent or connivance and that he [or she] exercised all such diligence to prevent the commission of the offence as he [or she] ought to have exercised’.Footnote ⁹⁵ In holding that that presumption was constitutionally valid, the Federal Court explained:

1. a. why it was necessary to punish the directors and officers (namely, that they were the very individuals responsible for the company's offence, but fining the company alone would not suffice to deter them);Footnote ⁹⁶

2. b. why the ‘deeming provision was fair and necessary’ (because, prima facie, ‘only [the directors/officers] could have caused or motivated the offence committed by [the company]’);Footnote ⁹⁷ and

3. c. that ‘[i]t should not be difficult for [each director/officer] to prove the absence of his knowledge, consent or connivance’.Footnote ⁹⁸

These are crucial points in explaining why the statute in question passed the proportionality test. The outcome may well have been different if, for instance, it had been ‘difficult’ to rebut the presumption, or if the presumption had not been ‘fair and necessary’. Unfortunately, in Alma Nudo Atenza, the Court of Appeal went into no such level of detail.

The Federal Court's decision: the high-water mark of proportionality, and of rights review generally

Both accused persons appealed to the Federal Court, which unanimously held that section 37A of the DDA was unconstitutional. That meant that only one of the two statutory presumptions could apply. As a result, the accused persons could at most be convicted of drug possession, not drug trafficking, and so faced a maximum sentence of life imprisonment, not death.Footnote ⁹⁹

The Federal Court could have reached this conclusion without discussing proportionality, or indeed any constitutional issue. Section 37(da) of the DDA provides that a person ‘found in possession’ of certain amounts of drugs is presumed to have been trafficking in those drugs. As the Federal Court pointed out, those words only denote a person who has been proven by evidence to have possessed drugs, not a person who was presumed to have possessed drugs. Section 37A of the DDA does not change that.Footnote ¹⁰⁰ On this basis, alone, the convictions for trafficking could have been overturned.

So it is noteworthy that the Federal Court did not stop there, instead expressly rejecting the Court of Appeal's reasoning. It stated: ‘when any State action is challenged as violating a fundamental right, such as the right to life or personal liberty under art. 5(1) [of the Federal Constitution] … the action must meet the test of proportionality’.Footnote ¹⁰¹ When the statute in question creates a presumption, relevant factors include:

1. (a) whether the presumption relates to an essential or important ingredient of the offence;

2. (b) opportunity for rebuttal and the standard required to disprove the presumption; and

3. (c) the difficulty for the prosecution to prove the presumed fact.Footnote ¹⁰²

As we have seen, such factors are precisely what the Federal Court in Gan Boon Aun considered, but the Court of Appeal in Alma Nudo Atenza did not.

Having laid the groundwork, the Federal Court then held that section 37A of the DDA failed the proportionality test. Because it required the accused person to ‘prove some fact on the balance of probabilities to avoid conviction’,Footnote ¹⁰³ it prima facie infringed on the right to presumption of innocence.Footnote ¹⁰⁴ While it was rationally connected to a legitimate aim (fighting the ‘substantial and pressing’Footnote ¹⁰⁵ problem of drug trafficking), it was disproportionate. This was because the presumptions, taken together, ‘relate to the three central and essential elements of the offence of drug trafficking’.Footnote ¹⁰⁶ This placed a very heavy legal burden on the accused, which would

In short, in the face of the

The upshot of the Federal Court's judgment was as follows. First, proportionality was now a firmly established doctrine of Malaysian constitutional law. Second – contrary to the Court of Appeal's decision – a court cannot avoid engaging in proportionality analysis by reading phrases in the Constitution such as ‘in accordance with law’ narrowly, as though the mere fact of having been passed by Parliament in a procedurally proper manner is enough to make legislation constitutionally valid. Third, the Federal Court had provided a clear example of how proportionality analysis was to apply. But the question remains: was there a clear sense of why, in principle, it should apply, other than that the Federal Court said so?

High Court cases following Alma Nudo Atenza

Taking stock

By now, the Federal Court had clearly stated that ‘when any State action is challenged as violating a fundamental right … the action must meet the test of proportionality’.Footnote ¹²⁴ It had laid down a three-step proportionality testFootnote ¹²⁵ and demonstrated how a court may apply this test having regard to various relevant factors.Footnote ¹²⁶ The High Court had followed suit and applied proportionality analysis in substance. The reasoning in these cases clearly does not, like the Court of Appeal's reasoning in Alma Nudo Atenza, reduce the judicial role in rights adjudication to a vanishing point.

The lingering problem: no clear sense of the Legislature's role

There was, however, a significant weakness in the case law. Even as the courts performed proportionality analysis, the role of the Legislature was not as clear. The issue of deference to the legislature, and how it interacts with proportionality analysis, had never been thoroughly addressed. In other words, the theoretical foundations of proportionality analysis had yet to be fully established.

In fact, the question of the legislative role had been raised in Tan Tek Seng, the case that introduced proportionality analysis into Malaysian law. That case involved a public service employee who had committed a criminal offence. The majority held that dismissing him from service was a disproportionate response to the offence. Unfortunately, the majority did not engage with the dissenting judge's point that the court ought not to ‘substitute [its] own views for that of the employers’Footnote ¹²⁷ and ought instead to uphold any decision that a ‘reasonable employer’ could ‘reasonably have taken’.Footnote ¹²⁸

The issue was also quietly raised by Suresh Kumar Velayuthan.Footnote ¹²⁹ In holding that the law on bail in SOSMA cases was not unconstitutional, the High Court said this:

This passage contains an ambiguity. The first and third sentences suggest that the court, having itself considered whether the law was proportionate, concluded that it was. The second sentence, by contrast, does not make clear who had ‘carr[ied] out … a balancing exercise between the individual right of the accused and the greater good of the public at large’: is it the court, or Parliament, which had done so? In other words, can the court defer to Parliament's judgment that legislation is proportionate?

No case has squarely addressed the issue of the nature and degree of deference which the courts should show toward legislative judgments. At most, there is Mohamad Ariff JCA's statement in Court of Appeal case of Nik Nazmi: ‘[t]he courts in testing the constitutionality of legislative action cannot substitute its own view on what ought to be the proper policy.’Footnote ¹³¹ However, that was only obiter.

This situation is regrettable. On the one hand, constitutional rights review – whether under the rubric of proportionality or otherwise – cannot be an excuse for juristocracy, in which the courts, in the name of proportionality analysis, arrogate to themselves the power to strike down any state action without even considering what can be said in its favour. On the other hand, one instinctively recoils at the notion that the Legislature can validly pass rights-restricting legislation that is not ‘reasonable’Footnote ¹³² or that is ‘harsh and unjust’.Footnote ¹³³ The solution is that courts often apply a doctrine of due deference when testing state action for its proportionality. But the Malaysian courts had not explored this. Some judges had expressed fear of juristocracy, others of legislative dictatorship; but the courts had yet to explore how both extremes are in tension and how the tension could be resolved.

This gap in the case law, coupled with old cases hostile to proportionality which had never been explicitly overruled, paved the way for the Federal Court in Letitia Bosman to hold that the need for deference (and a related doctrine of the ‘presumption of constitutionality’) can override not only proportionality analysis, but also, it seems, any meaningful form of rights review.

Introduction

The case reported as Letitia Bosman arose from four appeals to the Federal Court by persons who had received mandatory death sentences (three for drug traffickingFootnote ¹³⁴ and one for murder) between 2015 and 2016.Footnote ¹³⁵ The eight-judge majority of the Federal Court acknowledged that ‘Malaysian constitutional jurisprudence has developed so as to recognize that statutory provisions may be struck down on the grounds of proportionality’.Footnote ¹³⁶ However, it did not apply any proportionality test at all. Instead, in the name of a ‘presumption of constitutionality’, it asserted that the ‘the matter is an inherently legislative issue for Parliament to decide’Footnote ¹³⁷ due to its ‘social and moral features’,Footnote ¹³⁸ which involved ‘controversial issues of legislative policy and social values’.Footnote ¹³⁹ While the majority acknowledged the case law referring to proportionality,Footnote ¹⁴⁰ it ended up stating: ‘If a judge were to decide that the mandatory death penalty is not proportionate, it would entail the judge enacting his or her personal views of what is just and desirable into legislation.’Footnote ¹⁴¹ In other words, proportionality analysis existed in name only. Only Nallini Pathmanathan FCJ, the lone dissentient (who was also part of the Alma Nudo Atenza court), did.

One might argue that there is nothing intrinsically wrong with the majority's approach in Letitia Bosman. After all, as noted above, proportionality is not the only possible means of rights adjudication.Footnote ¹⁴² But, as we will see, the implication of the court's reasoning appears to be that any legislation that engages constitutional rights is nonetheless ipso facto constitutionally valid. This is antithetical, not only to proportionality analysis, but also to any concept of constitutional rights review.

This writer will now justify this inference from the majority's judgment, and then explain why it cannot be justified in principle in the name of ‘deference’ or the ‘presumption of constitutionality’.

A narrow reading of the rights provision

It is useful to deal first with the section of the majority's judgment titled ‘The Fair Trial Point’,Footnote ¹⁴³ which states that proportionality cannot apply in the specific context of the constitutional right to a fair trial.

The appellants’ argument was that the mandatory death penalty violated the right to a fair trial, because a ‘fair trial’ must involve allowing the accused to make ‘meaningful representations to the court on the appropriate sentence’.Footnote ¹⁴⁴ The Federal Court did not dispute that ‘[t]he right to a fair trial is a constitutionally guaranteed right’.Footnote ¹⁴⁵ However, it said that that right ‘can be taken away in accordance with law’,Footnote ¹⁴⁶ and that the DDA is such a ‘law’. Therefore, the majority held that there was no unconstitutional violation of the right to a fair trial.

We have seen how similar problematic reasoning was raised by the Court of Appeal in Alma Nudo Atenza, but departed from by the Federal Court in that case. Now, in Letitia Bosman, the Federal Court undid this development.

‘Deference’ to the Legislature's judgment?

A more formidable argument against the ‘inhuman or degrading’ test might be that it would give too much power to the courts. The classic response to this problem is a doctrine of due deference to the political branches. The majority alluded to this point:

As we will see, the majority's application of the doctrine of deference is highly problematic. Not only was it antithetical to proportionality analysis (which, recall, the majority acknowledged exists in principle);Footnote ¹⁶⁴ it also collapsed into, as Allan puts it, ‘non-justiciability dressed up in pastel colours’.Footnote ¹⁶⁵ The majority had in effect relied on the ‘supposedly superior qualifications of the decision-maker’, hence ‘divest[ing] the court of its role as independent scrutineer’.Footnote ¹⁶⁶ The correct position, this writer submits, is that the constitutionality of legislation, being a question of law, is not a question as to which Parliament is entitled to have the last word,Footnote ¹⁶⁷ even if ‘Parliament might have the means to consider the issue more fully or on a broader canvas’.Footnote ¹⁶⁸ In other words, even if the court defers to Parliament's answers to certain questions, the court must make a considered decision to do so.Footnote ¹⁶⁹ At the very least, the court must inquire into whether Parliament has asked and directed its mind to the right questions in the first place,Footnote ¹⁷⁰ instead of merely assuming that the Legislature must know better.

The ‘presumption of constitutionality’: yet again, little meaningful check on state action

Even if one disagrees with all of the analysis above, the majority's treatment of the ‘presumption of constitutionality’ is striking, because this ‘presumption’, as the court applied it, would foreclose any degree of deference other than total deference.

According to the majority, it is of ‘crucial importance’ that ‘[t]here is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.’Footnote ²¹⁰ As we will see, this ‘presumption of constitutionality’ is virtually irrebuttable, which means that the court's test for compatibility with constitutional rights is virtually impossible for any legislation to fail.

The ‘presumption of constitutionality’ was first articulated in Malaysian law in Su Liang Yu,Footnote ²¹¹ which cited a series of Indian cases from the 1950s, which in turn cited the 1919 case of Middleton v Texas Power & Light Co;Footnote ²¹² the latter was itself one of several US cases that spoke of a ‘presumption of constitutionality’.Footnote ²¹³ According to Middleton,Footnote ²¹⁴ in a passage echoed in Su Liang Yu:Footnote ²¹⁵

At first glance, it appears that the basis of the presumption is due deference to the Legislature. Indeed, the Malaysian Court of Appeal has stated that the presumption amounts to ‘deference to legislative determinations as to the desirability or adequacy of particular statutory objectives’;Footnote ²¹⁶ and, in a later Federal Court case, one judge (albeit in a dissenting judgment) stated that the presumption ‘seeks to appreciate the importance of the role of the Legislature as the democratically elected body representing the will of the People and upon whose mandate it is formed to pass laws’.Footnote ²¹⁷

Yet there are several serious issues with the presumption of constitutionality as applied in Malaysian law.

First, it is not clear how the ‘presumption of constitutionality’ adds anything to other established principles. If the point of the presumption is that ‘it is for the party who attacks the validity of a piece of legislation to place relevant materials and evidence before the court’,Footnote ²¹⁸ then the presumption adds nothing to the ordinary rule of evidence that the plaintiff bears the burden of proof. If the point is that ‘it must be presumed that the Legislature understands and correctly appreciates the need of its own people’,Footnote ²¹⁹ then the presumption would seek to pursue the same aims as the doctrine of due deference.

But the ‘presumption of constitutionality’ is not the same as the doctrine of due deference, because – and this is the second point – it has no regard as to what degree of deference is ‘due’. Even assuming that the ‘Legislature understands and correctly appreciates the needs of its own people’,Footnote ²²⁰ as Jack Lee points out, (a) there is no guarantee that the Legislature has directed its mind to the question of whether the legislation is constitutionally valid;Footnote ²²¹ and (b) in any event, it is the courts, not the Legislature, that have the last word on the constitutionality of legislation.Footnote ²²² Instead, not only is it wholly unclear from the majority's decision what it would take to rebut the ‘presumption of constitutionality’;Footnote ²²³ the majority also treated the presumption as virtually irrebuttable.

The majority stated that the mandatory death penalty is ‘one of the most sensitive and controversial social issues of our time on which there is no consensus’,Footnote ²²⁴ ‘relates to a most delicate area of social policy’,Footnote ²²⁵ ‘involve[s] a most problematic area of social policy’ that is ‘controversial’,Footnote ²²⁶ and had certain ‘social and moral features’Footnote ²²⁷ that made the controversy about it ‘an inherently legislative issue for Parliament to decide’.Footnote ²²⁸ One might wonder whether the same cannot be said of most, if not all, issues involving the balancing of a right against some ‘area of social policy’.

Surely the mere existence of controversy does not make more-than-clerical constitutional rights review impossible in all but name. In Alma Nudo Atenza, the Federal Court said that there is a ‘presumption in favour of constitutionality’,Footnote ²²⁹ yet that did not stop it from performing proportionality analysis. Even in Su Liang Yu, for all its problematic remarks about the presumption, the High Court did ask whether the legislation in question had any ‘prejudicial or hostile effect’ on accused persons.Footnote ²³⁰ By contrast, the majority of the Federal Court in Letitia Bosman said:

So the mere existence of controversy immunises legislation from judicial review. If the court meant that only certain kinds of controversy do so, this is by no means clear. This problem was apparent to Nallini Pathmanathan FCJ, the lone dissentient, who pointed out that the presumption of constitutionality is not ‘unassailable’ and cannot be applied to render a law that is invalid, valid’.Footnote ²³² This must be correct. The presumption of constitutionality, like all presumptions, can be at most a rule of evidence; the majority had no basis for morphing it into an inflexible rule of substantive law. This point is buttressed by the following recent observation by the Singapore Court of Appeal in Saravanan Chandaram:

In short, the presumption as the Federal Court applied it in Letitia Bosman is antithetical, not only to proportionality analysis, but to any meaningful constitutional rights analysis. The court's reasoning, taken to its logical conclusion, would mean that the courts can virtually never conclude that legislation violates constitutional rights. Again, the courts’ role is a merely clerical one.

Malaysiakini

The first case is Malaysiakini, which involved the freedom of expression. Malaysiakini is an ‘online news portal’.Footnote ²⁴⁷ The case concerned comments which several readers had posted on one of Malaysiakini's articles. These comments made various allegations against the Malaysian judiciary.Footnote ²⁴⁸ The Federal Court, by a majority of six to one, found Malaysiakini guilty of contempt of court and fined Malaysiakini 500,000 Malaysian ringgit (as of the date of judgment, £88,256 or US$123,749).Footnote ²⁴⁹ According to the majority, although Malaysiakini had merely provided the platform on which those comments had been posted, it was ‘deemed to have published the impugned comments’.Footnote ²⁵⁰ This was because section 114A of the Evidence Act created a presumption that a person who ‘in any manner facilitates to publish or re-publish [a] publication is presumed to have published or re-published the contents of the publication unless the contrary is proved’, and Malaysiakini had failed to rebut this presumption.

Malaysiakini argued that holding it liable would violate the constitutional right of freedom of expression. This appears to refer to the rights both of Malaysiakini to ‘disseminat[e] information’ and of commenters to engage in ‘public discussion on matters of public interest’.Footnote ²⁵¹

Anwar Ibrahim

In Datuk Seri Anwar Ibrahim, the Federal Court did take a more robust approach. However, its judgment is haunted by the ghost of Letitia Bosman and its accompanying doctrine of what is effectively blanket non-justiciability.

The applicantFootnote ²⁶⁶ applied to the High Court for a declaration that, among other things, the National Security Council Act 2016 (NSCA) – particularly section 22 – was unconstitutional. He then attempted to invoke a provision of the Courts and Justice Act that allowed the High Court to refer a constitutional question directly to the Federal Court.