I was reading the FMT article posted below and decided to write a legal opinion that will either bewilder or fascinate Sri Ram FCJ and his fellow judicial coram in Sivarasa Rasiah v Badan Peguam Malaysia & Anor  3 CLJ 507.
© The Right to Equal Justice under Malaysian Law
A clear reading of the Federal Court decision in Sivarasa Rasiah v Badan Peguam Malaysia & Anor  3 CLJ 507 surmises the conundrum into legal and practical simplicity.
Article 5(1) of the Federal Constitution may be selected to illustrate the point that is sought to be made since it is one of the provisions relied on in this case. That Article proscribes the deprivation of life or personal liberty, save in accordance with law. “Law” wherever mentioned in Part II of the Constitution includes – by statutory direction – the common law of England (see Article 160(2) read with section 66 of the Consolidated Interpretation Acts of 1948 & 1967). It is now well-settled that by the common law of England the right to equality and to equal justice is a basic or a constitutional right.
A series of judicial review decisions dating back to Kruse v Johnson  2 QB 91 established the existence of a ‘common law principle of equality’ which constituted part of the wider public law doctrine of rationality and equal justice and prohibited unequal treatment based on ‘distinctions which were not properly justified’ or which ‘ultimately [force] the citizen to relinquish her or his sense of equal worth’. Subsequent judicial dicta gave support to this argument: see for example Lord Hoffmann’s comments in Matadeen v Pointu  1 AC 98 at . Thus, the common law right to equality and equal justice is part of the “law” to which Article 5(1) refers. In other words, a law that seeks to deprive life or personal liberty (both concepts being understood in their widest sense) is unconstitutional if it prevents the equal dispensation of justice or limits the equal dispensation of justice. Blake J. in R (Limbu) v Secretary of State for the Home Department  EWHC 2261 (Admin) similarly was of the view that this ‘common law principle is an important instrument whereby it can be determined whether a discretionary public law decision is rational’.
Hence, the well-settled common law principle of the right to equality and equal justice becomes the determinant instrument in the dispensation of equal justice through its rationality and this forms part of the laws of Malaysia.
© Hakimi bin Abdul Jabar, Malaysia, 2nd March 2019. All Rights Reserved.