Constitutional Law
250 cases · October 2017 to June 2026
Overview
Constitutional Law appears in 250 reported Malaysia judgments (2017–2026).
In this practice area
Constitutional Law collects the judgments in which the Federal Constitution is the decisive instrument — the guarantee of fundamental liberties, the separation of powers, and the limits the Constitution places on legislative and executive action. The area sits at the apex of the corpus, with a larger proportion of its cases decided by the Federal Court than any other subject.
Fundamental liberties are a central theme. Judgments examine the right to life and personal liberty under Article 5, equality and equal protection under Article 8, and the freedoms of speech and assembly under Article 10 together with the permissible restrictions each carries. The collection includes challenges to corporal punishment framed as cruel, inhuman and degrading treatment, and the compatibility of statutory offences — such as the "offensive" and "annoy" language of section 233 of the Communications and Multimedia Act 1998 — with the constitutional guarantee of expression, decided against the presumption of constitutionality.
Structural questions recur alongside rights. Judgments consider Article 4 and the supremacy of the Constitution, the original jurisdiction of the Federal Court under Article 4(3) and (4) and Article 128, and the boundary between civil and Syariah jurisdiction under Article 121. The abolition of the mandatory death penalty and the constitutional review of sentencing also appear where a punishment is challenged against Articles 5 and 8.
The cases are concentrated at the Federal Court and the Court of Appeal, with the High Court hearing constitutional challenges at first instance. As a whole the area shows how the Malaysian courts mediate between the individual and the state — reading the fundamental-liberties guarantees purposively while respecting the space the Constitution leaves to Parliament to impose restrictions that are permissible and proportionate. Because these questions carry the widest public significance, the judgments are among the most closely reasoned in the corpus and are frequently cited across the other areas.
Case Volume by Year
Key Issues & Sub-Topics
Federal Constitution — Articles 5(1), 8(1) and 8(2) Fundamental liberties — Life and personal liberty — Human dignity — Equal protection of the law — Whether it is in violation of medical ethics for medical officer to be participate in the execution of whipping. 3 cases
Equality before the law — Article 8 of Federal Constitution — Tort damages — Denial of bionic prosthesis based on plaintiff’s village lifestyle and former occupation as car washer — Held to be a form of socio‑economic discrimination — No place in law of tort. 1 case
Freedom of religion — Civil Court jurisdiction — Distinction between ab initio claim and renunciation of Islam — Whether Civil Court had jurisdiction to determine whether Plaintiff ever fell within constitutional category of “persons professing the religion of Islam” — Federal Constitution arts 11(1), 12(4), 121(1A), Ninth Schedule List II Item 1 1 case
Syariah jurisdiction — Whether acceptance of Plaintiff’s argument would collapse distinction between ab initio claims and renunciation claims under Rosliza and Lina Joy 1 case
Minor — Religion — Article 12(4) Federal Constitution — Determination of religion — Biological parentage — Administrative classification of religion — 1 case
Public Prosecutor — Prosecutorial discretion — Power to institute, conduct or discontinue criminal proceedings — Federal Constitution art 145(3) 1 case
Prosecutorial discretion — Judicial review — Scope of review — Presumption of legality — Requirement of compelling prima facie evidence — Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia & Ors [2021] 5 MLJ 209 1 case
Right to property — Adequate compensation — Article 13(2) of Federal Constitution — Whether deprivation of property occurred — Plaintiff had voluntarily agreed to surrender land — No entitlement to constitutional protection for property already committed to State 1 case
Public Prosecutor’s discretion — Scope and limits — Whether discretion unfettered — Application of Art 145(3) Federal Constitution — Whether prosecution acted irrationally, mala fide or oppressively — Effect of Sundra Rajoo decision 1 case
Article 5(1) — Right to life and personal liberty — Whether repeated reprosecution after DNAA violates constitutional fairness — Criminal Procedure Code as “law” under Art 5(1) 1 case
Citizenship by operation of law — Illegitimate child — Whether an illegitimate child at the time of birth qualifies for citizenship by operation of law — Federal Constitution, Art 14(1)(b). 1 case
Citizenship — Citizenship by operation of law — Article 14(1)(b) Federal Constitution — Part II Second Schedule ss 1(a), 1(e), 2(3) — Requirement of jus soli and jus sanguinis — Whether proof of both required — Illegitimate child — Whether citizenship follows biological father or mother — Interpretation of “parents” under s 17 Second Schedule — Whether child born in Malaysia but to non-citizen mother entitled to citizenship — Whether child stateless — Binding effect of Federal Court decision — Appeal dismissed 1 case
Citizenship — Illegitimate child — Section 17 Second Schedule Federal Constitution — “Parents” construed as mother — Jus sanguinis traced to biological mother — Whether child born to foreign mother acquires foreign citizenship at birth — Burden of proof — Whether plaintiffs proved child not a citizen of any country — Failure to prove — Citizenship claim rejected 1 case
Citizenship — Article 14(1)(b) read with s 1(e) Second Schedule — Phrase “not born a citizen of any country” — Whether imports jus sanguinis requirement — Necessity to prove lineage at time of birth — Whether child capable of acquiring Cambodian citizenship — No statelessness — Claim fails 1 case
Citizenship — Article 14(1)(b) read with s 1(a) Second Schedule — Requirement that one parent be citizen or permanent resident — Illegitimate child — Whether biological father can be relied upon — Section 17 applies — “Parent” refers to mother — Requirement not satisfied — No entitlement to citizenship 1 case
Article 10(1)(b) Federal Constitution — Right to peaceful assembly — Article 10(2)(b) FC — Parliamentary restrictions on assembly rights — Article 8(1) FC — Equality before the law & proportionality — Article 4(1) FC — Void laws inconsistent with the Constitution — Peaceful assembly — Notification of assembly — Requirement of giving ten days’ notice to police — Organiser failed to give police ten days’ notice — Whether requirement to give notice reasonable — Whether non-compliance to give required notice detrimental to organiser — Whether in breach of safeguarding provisions — Peaceful Assembly Act 2012 s 9(1) & (5) 1 case
Jurisdiction — Whether civil court or Syariah Court has jurisdiction to hear and determine application for declaration of a person’s identity. Whether ab initio or renunciation case — Whether identity card — proof of a person’s religion. Federal Constitution — Article 121(1A) — Syariah Court (Perak) Enactment — s.17(2)(b)(xiv) — Administration of the Religion of Islam (Perak) Enactment 2004 — s. 2 — Rules of Court 2012 — O. 53 — Specific Relief Act 1950 — s. 41 1 case
Citizenship by operation of law — Citizenship by operation of law by virtue of s 1(a) of Part II read together with s 19B of Part III of Second Schedule of Federal Constitution — Child born in hospital in Malaysia — Identity of birth mother unknown — Malaysian citizen couple adopted abandoned child — Birth certificate stated child as non-citizen —‘Any newborn child found exposed in any place’ — Whether child entitled to citizenship by operation of law — Federal Constitution Second Schedule, Part III, s 19B 1 case
Citizenship by operation of law — Citizenship by operation of law by virtue of s 1(e) read together with s 2(3) of the Second Schedule of the Federal Constitution — “Not born a citizen of any country” — Meaning 1 case
Legislation — validity of legislation — whether Parliament has power and/or competent to enact any provisions that regulates matters relating to Islamic Medicine and Malay Traditional Medicine — sections 25 and 26 of the Act — Islamic Medicine and Malay Traditional Medicine (ACT 775) — Challenge Based On Article 38(4) Of The Federal Constitution — The Doctrine Of Pith And Substance - 1 case
the validity of impugned legislation — the sentence of mandatory death penalty for trafficking under section 39B of the Dangerous Drugs Act and section 302 of the Penal Code for murder — Whether the said provisions were unconstitutional — Whether the said provisions can be struck down for violating Articles 5(1), 8(1) and 121 of the Federal Constitution — Whether death penalty is the proportionate punishment for the offence — Whether alternative punishments should be made available and the Court be given discretion to impose suitable punishment — Whether the Court should simply implement punishment prescribed by Parliament without question 1 case
Legislature — Whether Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 (‘s 28’) enacted by Selangor State Legislature had legislated a matter in the Federal List in Ninth Schedule of the Federal Constitution — Item 4(h) of the Federal List — Section 377A of the Penal Code — Whether applicant ought to be granted leave pursuant to Article 4(4) of the Federal Constitution in challenging the constitutionality of s 28 — Whether applicant has fulfilled the requirements under Article 4(3) for leave to be granted on the ground of lack of competency by Selangor State Legislature to enact s 28 1 case
Gag order — Article 126 FC — S 13 Court Judicature Act — whether Court has jurisdiction to issue gag order — whether court should adopt prismatic construction of A 126 FC and S 13 CJA — whether court should grant gag order when the country has abolished trials by jury — test for gag order — whether appellant had fulfilled the test — whether there is real and substantial risk to the fairness of the trial — whether it is necessary and proportionate to grant gag order 1 case
Article 121 — Islamic banking — Section 57 of CBMA 2009 — ruling of SAC is binding on High Court — whether Section 57 vested judicial power to the Shariah Advisory Council — whether section 57 CBMA is valid and constitutional 1 case
Central Bank of Malaysia Act 2009 S 56,57 — Shariah Advisory Council — whether section 56,57 of CBMA breaches Federal Constitution for having the effect of vesting judicial power in the Shariah Advisory Council — whether the provisions violates doctrine of separation of power — whether Parliament can set up a legislative mechanism in relation to Islamic financial business — whether Court is bound to advice by SAC — whether the impugned provision intrudes onto judicial power 1 case
constitutionality of statute — A 5, 8, 121 FC — s 37A Dangerous Drugs Act 1952 — whether the use of double presumptions under s 37A is constitutional — whether insertion of s 37A contravenes the principle of separation of powers — whether s 37A violates Articles 5 & 8 of FC — whether the use of ‘deemed possession’ under s 37(d) of DDA denied the accused of fair trial — presumption of innocence — whether s 37A violates presumption of innocence — whether requirement of the accused to rebut the presumptions violates the presumption of innocence — whether the decision in Muhammed bin Hassan v Public Prosecutor [1998] 2 MLJ 273 remained valid — whether trafficking presumption could only be invoked if trial court had found evidence of possession affirmatively — duty of the court to adopt prismatic approach in interpreting fundamental rights — doctrine of proportionality on statutory presumptions -- whether double presumptions satisfy the requirement of proportionality — whether enactment of s 37A intrudes into judicial power 1 case
Constitutional questions — s 84 of Court Judicature Act 1964 — Whether the appointments of the second respondent and third respondent as Chief Justice of Malaysia and the President Court of Appeal respectively after their mandatory retirements are valid and constitutional — Federal Constitution Article 122,122B,125 — Constitution of Federal Court — Appointment of judges of Federal Court, Court of Appeal and High Courts, Tenure of office and remuneration of judges of Federal Court — Position of Conflict — Challenge of bias — Direct interest — Real possibility of bias — Whether the constitutional questions rendered academic — Public Law exception 1 case
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How many Constitutional Law cases are reported in Malaysia courts?
250 reported Malaysia judgments (2017–2026) involve Constitutional Law.
What questions does Constitutional Law address?
It addresses the fundamental liberties in Part II of the Federal Constitution — life and personal liberty under Article 5, equality under Article 8, and speech and assembly under Article 10 — together with structural questions of supremacy under Article 4 and the boundary between civil and Syariah jurisdiction under Article 121.
How do the courts test whether a statute is constitutional?
The judgments apply the presumption of constitutionality and ask whether a restriction falls within the permissible limits the Constitution allows, increasingly through a proportionality analysis. Challenges to provisions such as section 233 of the Communications and Multimedia Act 1998 are decided against that framework.
Which court decides most constitutional cases?
A larger share of constitutional cases reaches the Federal Court than in any other area, reflecting its role as the final arbiter of the Constitution and its original jurisdiction under Articles 4 and 128, with the Court of Appeal and the High Court hearing such challenges below.