In Helmi Anuar, the Malaysian Federal Court held that judicial whipping was constitutional, rejecting arguments that whipping violated Article 5(1) of the Federal Constitution (which prohibits deprivation of life and liberty). The Court declined to determine whether whipping, as a cruel punishment, did not pass the proportionality test and breached Article 5(1), holding that only Parliament could determine this. It also approached proportionality (the test for whether state action infringes a constitutional right, per This post argues Helmi Anuar is a missed opportunity for the Court to clarify the doctrines of due deference and proportionality.

Instead, the Court effectively found the issue non-justiciable by holding that Parliament should determine if whipping, as a cruel punishment, was unconstitutional.  It also adds another inconsistent approach to the Malaysian case law on proportionality. As Ong notes, post-Alma Nudo decisions superficially endorse proportionality, but apply it inconsistently: Letitia Bosman held that a constitutional right prohibiting deprivation of personal liberty “save in accordance with law” was not infringed so long as such law was validly enacted (rendering courts’ roles merely clerical). Anwar Ibrahim held that courts “should not intervene and should be hesitant in doing so” where “national security and public order are involved”, demarcating a broad scope of matters where it is unclear if proportionality applies. Helmi Anuar regrettably perpetuates this.

The Court held that determining whether whipping was unconstitutional due to its cruel nature was within the “clear legislative domain” and that only Parliament should determine the “moral efficacy or social desirability” of matters involving “competing moral and social considerations”. The Court further warned against the unconstitutional “substitut[ion of] its own subjective moral preferences”, stating it cannot act as a “moral arbiter” absent a “clear violation of the express letter of the law”. The Court’s own consideration of the cruelty question was expressly obiter and framed as “even if” it accepted it could perform such review.

Firstly, this reasoning overlooks the fact that most constitutional rights cases involve competing social considerations, implying courts should not review the constitutionality of legislation in such cases. This is effectively a finding of non-justiciability in the guise of deference, mirroring previous refusals to determine the constitutionality of the death sentence. Secondly, the Court mischaracterised the application of legal tests in performing rights review as “subjective moral preferences”. Its fears of undermining the separation of powers and rule of law are misplaced; courts would be upholding these doctrines and fulfilling their constitutional roles by adjudicating on constitutionality of legislation. The Court’s positioning of moral considerations is also puzzling; courts should not be acting as moral arbiters in any case. 

The Court also applied proportionality without referring to Article 5(1) or any other constitutional right, holding instead that the objectives of the general legislation sanctioning whipping were legitimate and that whipping had a rational nexus to those objectives. In doing so, its analysis of the first and third stages of the test amounted to bare assertions of their fulfilment. The Court also framed its application of proportionality as an obiter consideration “for the sake of completeness”, after finding no breach of Article 5(1).

This approaching is wanting: it contradicts the conception of proportionality espoused in Alma Nudo and by other Further, whether impugned legislation is contrary to the relevant right (and therefore unconstitutional) hinges on whether such legislation passes the proportionality test; holding that there is no breach before considering proportionality puts the cart before the horse. Doing so renders the test otiose and implies a different test may be applicable. Finally, the Court neglected to consider whether whipping, as applied to the applicants, was proportionate, ruling instead on the proportionality of the general legislation.

The Malaysian courts have made bold progress in developing an indigenised approach to constitutional interpretation and rights review. Increased doctrinal clarity, especially for principles as fundamental as proportionality and deference, would further these efforts.