First judicial precedent plays a lesser part than is normal in matters of

First judicial precedent plays a lesser part than is

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First, judicial precedent plays a lesser part than is normal in matters of ordinary statutory interpretation. Secondly, a constitution, being a living piece of legislation, its provisions must be construed broadly and not in a pedantic way – ‘with less rigidity and more generosity than other Acts’ (see Minister of Home Affairs v. Fisher [1979] 3 All ER 21. A constitution is sui generis, calling for its own principles of interpretation, suitable to its character, but without necessarily accepting the ordinary rules and presumptions of statutory interpretation. As stated in the judgment of Lord Wilberforce in that case: ‘A constitution is a legal instrument given rise, amongst other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms.’ The principle of interpreting constitutions ‘with less rigidity and more generosity’ was again applied by the Privy Council in Attorney-General of St Christopher, Nevis and Anguilla v. Reynolds [1979] 3 All ER 129, 136. It is in the light of this kind of ambulatory approach that we must construe our Constitution. [7] The long and short of it is that our Constitution – especially those articles in it that confer on our citizens the most cherished of human rights – must on no account be given a literal meaning. It should not be read as a last will and testament. If we do that then that is what it will become. [8] 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
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29 [2007] 1 CLJ A B C D E F G H I Dr Mohd Nasir Hashim v. Menteri Dalam Negeri Malaysia 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.
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