1. Is based on/derived from Article 4(1) of the Federal Constitution
Support for this proposition can be found in the Federal Court’s decision in Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] 3 MLJ 356 (“Dhinesh”):
“… constitutional judicial review is expressly encompassed in art 4(1) of the FC.”[1] (Emphasis mine)
In Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan Negeri Kelantan [2024] 2 MLJ 150 (“Nik Elin”), the majority of the Federal Court shared a similar sentiment when it held that Article 4(1) of the FC “forms the substantive constitutional basis for all constitutional judicial review cases.”[2]
2. Is provided for with further codified powers under statutory law of general application
This observation was made by the Federal Court in SIS Forum (M) v Kerajaan Negeri Selangor (Majlis Agama Islam Selangor, intervener) [2022] 2 MLJ 356:
“The means for redress for constitutional judicial review, however is provided directly under cl (1) of art 4 of the FC to strike down unconstitutional legislation with the further codified powers under statutory law of general application ie para 1 of the Schedule to the CJA 1964 to issue declarations and to mould relief in applications for judicial review filed pursuant to O 53 of the ROC 2012.”[3] (Emphasis mine)
3. Is a mechanism for maintaining separation of powers
Nallini Pathmanathan FCJ aptly put this in Dhinesh:
“… By providing for the ability to render enacted law void if inconsistent with the FC, art 4(1) of the FC also clearly houses the doctrine of the separation of powers. It ensures that where the Legislature enacts laws which are outside the purview of the FC, such laws are void. This effectively provides a check and balance mechanism in relation to the division of power between the arms of Government. Neither the Legislature nor the Executive should enact or execute laws that are inconsistent with the FC. In this context it is not purely an issue of the division of powers, but rather undertaking the highest responsibility for maintaining the state and social order. This separation is maintained by the mechanism of constitutional judicial review. Judicial review lies at the heart of the FC as it enables or facilitates the operation of the doctrines of the separation of powers as well as ensuring that the basic features and thus the fundamental identity of the FC is retained.”[4] (Emphasis mine)
Her Ladyship also mentioned in Dhinesh that the role/function of exercising this mechanism falls on the Judiciary:
“The only manner in which any enacted law which is inconsistent with the FC can be held to be void operationally, is through the mechanism of judicial review. And this role or function of constitutional judicial review falls on the Judiciary. The Judiciary undertakes the role of safeguarding the supremacy of the FC by declaring any such inconsistent law, void. It is, in effect, the guardian of the FC.”[5] (Emphasis mine)
4. Is to be contrasted with administrative/statutory judicial review
The Federal Court in Mohd Najib bin Hj Abd Razak & Anor v Government of Malaysia and another appeal [2023] 6 MLJ 483 made it clear that a contrast needs to be made, and provided an explanation regarding administrative/statutory judicial review:
“Constitutional judicial review is to be contrasted with administrative judicial review in that the latter involves the supervision of the acts and/or omissions of public law bodies per se without challenging the validity of a specific legislative provision.”[6] (Emphasis mine)
Constitutional judicial review, on the other hand, “happens when the Judiciary is called upon to exercise its powers of interpretation of the supreme document, the [Federal Constitution]”.[7]
Interestingly, there are cases that involve both constitutional judicial review and administrative/statutory judicial review. An example of this, which was recognised by the Federal Court in Haris Fathillah bin Mohamed Ibrahim & Ors v Tan Sri Dato’ Sri Hj Azam bin Baki & Ors [2023] 2 MLJ 296, is Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan and other cases [2021] 3 MLJ 759 which challenged “the constitutionality of s 4 of the Prevention of Crime Act 1959 and sought concomitant habeas corpus orders for immediate release on the basis of an unlawful detention premised on an unconstitutional legislation.”[8]
5. Locus standi will be broadly construed
Tengku Maimun CJ (as Her Ladyship then was) opined this in Nik Elin:
“[24] In a case such as the present one involving constitutional judicial review, we opine that locus standi must be adjudged on principles even broader than the ones already applicable in Taman Rimba.
…
[29] We therefore take the view that the fact that legislation has been passed creates a factual circumstance in which it can be challenged. Article 4(1), which forms the substantive constitutional basis for all constitutional judicial review cases, does not discriminate between the circumstances and situations in which such challenges can be brought or the categories of persons that can bring them, apart from differentiating between the nature and procedure for those proceedings ie between ‘incompetency’ and ‘inconsistency’ challenges.”[9] (Emphasis mine)
In Attorney General of Malaysia v Sabah Law Society [2024] 6 MLJ 121, the Federal Court applied Nik Elin and concluded that the Sabah Law Society had threshold locus standi in a constitutional judicial review in respect of the Special Grant provided for Sabah under art 112C and s 2 of Part IV of the Tenth Schedule of the Federal Constitution.[10]
[1] Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] 3 MLJ 356 (FC), at para 118
[2] Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan Negeri Kelantan [2024] 2 MLJ 150 (FC), at para 29
[3] SIS Forum (M) v Kerajaan Negeri Selangor (Majlis Agama Islam Selangor, intervener) [2022] 2 MLJ 356 (FC), at para 41
[4] Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] 3 MLJ 356 (FC), at para 119
[5] Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] 3 MLJ 356 (FC), at para 117
[6] Mohd Najib bin Hj Abd Razak & Anor v Government of Malaysia and another appeal [2023] 6 MLJ 483 (FC), at para 30
[7] Haris Fathillah bin Mohamed Ibrahim & Ors v Tan Sri Dato’ Sri Hj Azam bin Baki & Ors [2023] 2 MLJ 296, at para 66
[8] Haris Fathillah bin Mohamed Ibrahim & Ors v Tan Sri Dato’ Sri Hj Azam bin Baki & Ors [2023] 2 MLJ 296, at para 65
[9] Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan Negeri Kelantan [2024] 2 MLJ 150 (FC), at paras 24 and 29
[10] Attorney General of Malaysia v Sabah Law Society [2024] 6 MLJ 121 (FC), at para 12(d)
