Session 4 of the Constitutional Law Conference 2024 was on the topic, “Does the Federal Constitution only have a vertical effect, having regard to Beatrice A/P AT Fernandez v Sistem Penerbangan Malaysia & Ors [2005] 3 MLJ 681?” (“Beatrice Fernandez“).
In Beatrice Fernandez, the Federal Court held the following:
“Constitutional law, as a branch of public law, deals with the contravention of individual rights by the Legislature or the Executive or its agencies. Constitutional law does not extend its substantive or procedural provisions to infringements of an individual’s legal right by another individual.” (Emphasis mine)
In effect, the legal proposition laid down by the Federal Court in Beatrice Fernandez was that the Federal Constitution only had a vertical effect (i.e. between individual & State) and did not have horizontal effect (i.e. between individuals/private parties).
Surendra Ananth and Lim Wei Jiet, as the speakers for the session, provided valuable insights into the topic with the former even taking on the role of the devil’s advocate for discussion purposes.
The slides I prepared, as moderator of the session, can be accessed below:
Does the Federal Constitution only have a vertical effect (Moderator)
At the present moment, in light of Beatrice Fernandez, it appears that the Federal Constitution only has a vertical effect. However, it may be time to revisit Beatrice Fernandez as the basis for the Federal Court’s decision arguably no longer holds water.
In the following jurisdictions, their respective Constitutions have been applied horizontally (at the very least in an indirect horizontal manner):
1. Ireland – in cases of “failure to implement” constitutional rights or “plainly inadequate” implementation of constitutional rights (see Hanrahan v Merck Sharp & Dohme [1988] IESC 1, [1988] ILRM 629);
2. Germany – private law provisions indirectly reflect the legal content of fundamental rights, primarily through mandatory provisions, and judges can give effect to this content in particular by drawing on general clauses (see Lüth 1 BvR 400/51); and
3. India – on a case to case basis, considering the “nature of the right violated” and the “extent of obligation on the part of the violator” [see Kaushal Kishor v. State of Uttar Pradesh & Ors (2023) 4 SCC 1].
