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Episode 20: Healthcare in Malaysia: A Fundamental Right?

The issue of Healthcare being a right or privilege for citizens is a dividing one with partisan views worldwide. The matter at hand here is whether the Federal Constitution provides for Healthcare as a fundamental right for Malaysians or not? In this edition, the article examines its constitutionality by examining our laws, statutes and the courts' interpretation of the Federal Constitution with respect to the fundamental liberties. The Consti Team also has reviewed international jurisdictions before discussing the pros and cons of Healthcare as a fundamental right.


The word ‘health’ is defined as “a state of complete physical, mental, and social well-being, and not merely the absence of disease or infirmity” by the WHO Constitution of 1946.[1] Meanwhile, healthcare could be described as services to maintain or restore physical, mental, or emotional well-being especially by trained and licensed professionals.[2]


Unfortunately, the distribution in healthcare is uneven to all, especially in Britain. The healthcare quality and payment for medical treatment is dependent on their occupational status, class, gender and age. Luckily, working men received health coverage under the 1911 National Insurance Act. However, their dependents are not covered by it. Hence, they had to pay for their own medical bills. Also, since it is all dependent on job status, the unemployed and middle class also struggle to access affordable healthcare as those who fall under the middle class or middle income group are earning above a certain wage threshold and/or wage limit and, thus, are disqualified for national insurance under the 1911 Act.[3]

This is where the ‘Beveridge Report’ comes into play. It was first introduced by William Beveridge who was a member of the Liberal Party in 1942. The first bill for a National Health Service (NHS) was introduced by the Conservative-led wartime coalition government in 1944. Initially, there were polarising reactions as to the means and scope of execution, particvularly from the political and medical front. Nonetheless, after several considerations and sufficient politcal tolerance and will, the Beveridge plan was acknowledged due to the need for extensive reform for social services by the end of the Second World War.[4] Therefore, what was agreed upon was a free national health service for all citizens in the United Kingdom to battle against “idleness, ignorance, disease, squalor and want” from “cradle to the grave”.

Finally, the NHS was founded in 1948 by Clement Attlee’s Labour government after they had won the 1945 General Election. This brings us to the National Health Service Act 1946 whereby it provides for a comprehensive healthcare service. It is inclusive to all as the service is free of charge. That means, everyone has the right to receive decent health services and it achieves equality in receiving quality healthcare.[5] However, it is pertinent to note that although the NHS extends to non-UK citizens, oftentimes migrants and asylum-seekers access are delayed due to them being deemed “not ordinarily resident”.[6]


The Malaysian health care system consists of tax-funded and government-run universal services and a fast-growing private sector. Public sector health services are organised under a civil service structure and are centrally administered by the Ministry of Health. The Ministry of Health plans and regulates most public sector health services, but less so for private medical care services. Though there are similarities with the NHS, such as being a two-tier healthcare system, there are significant differences as well, namely; unlike the NHS, Malaysia’s healthcare services is not based on a national insurance program as it is heavily government-subsidised and it is not extended to non-citizens or residents.[7]

In this essay, we will explore if there is any express or implied provision for healthcare in our Federal Constitution. In doing so, we will also implore as to how other nations regard the importance of healthcare. Moving on, we will then consider the pros and cons of having an express provision for healthcare as a fundamental right.



In the Federal Constitution, the term "Health" is provided under item 14 of the Federal List. "Public Health" is provided under item 7 of the concurrent list.[8] However, The Federal and Concurrent lists merely demarcate the responsibility of provision of health and public health-related matters. Does this in turn impose a duty?

Though there is no express provision to mandate access to healthcare to the public, Article 2 paragraph (1) of the Convention on Economic, Social and Cultural Rights states the obligation of a Government to fulfil the right to health as a human right.[9] Furthermore in Malaysia, healthcare is under the purview of the federal government as Malaysia's public health system is financed mainly through general revenue and taxation collected by the federal government.


Unfortunately, there are no cases in Malaysia that expressly held that as to whether healthcare is a fundamental right or otherwise. However, what can be done is to look at the courts’ interpretation regarding our fundamental rights in the Federal Constitution. In the case of Suzana bt Md Aris v DSP Ishak bin Hussain & Ors,[10] the judge held that “nothing can buffer the harsh reality that a person who is being deprived of his liberty is in a more vulnerable position of being deprived of life when his plea for medical help falls on deaf ears and is being brushed aside as being a nuisance.” This matter can be seen that everybody has the right to medical attention and assistance (including health attention), with respect to the liberal interpretation of Tan Tek Seng (as seen below).[11]


So what is the solution to this outright rejection of the right to healthcare? Perhaps health and subsequently, healthcare could be implied as a part of Article 5(1) of the Federal Constitution. As per Article 5(1), “no person shall be deprived of his life or personal liberty save in accordance with law”.[12]

The Courts have construed Article 5(1) in two ways. For ‘life’, the Courts in Tan Tek Seng have construed that the right of ‘life’ includes those things that are integral to form the quality of life which includes the right to live a reasonably healthy and pollution-free life which is a subset of health.[13] Thus, it can be inferred that ‘health’ should also fall under ‘life’ under Article 5(1). Perhaps this right to live a reasonably healthy and pollution free life could also be extended to the right to healthcare as healthcare constitutes as an integral part of life itself.

In addition, the Courts[14] also referred to the judgement of Field J in the case of Munn v Illinois where the judge explained ‘life’ in the Fourteenth Amendment of the Constitution of the United States of America. No doubt this case as ‘something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.’[15] It is also pertinent to take note that Article 5(1) is inspired by the 14th Amendment of the Constitution of the United States regarding the enforcement of law that takes away the citizens’ fundamental rights.

In addition, this interpretation of the word ‘life’ that was referred to by the Federal Court in Tan Tek Seng was in pari materia with Article 21 of the Indian Constitution in the case of Bandhua Mukti Morcha v Union Of India & Ors.[16] In that particular case, the Indian Court as per Bhagwati J derived the meaning of the word ‘life’ from the Directive Principles of State Policy of India which include the protection of health and strength of workers, men, women and children which are minimum requirements that must exist to enable a person to live with dignity and in pursuance of that, the State has no right to deprive a person the enjoyment of these basic essentials.

In short, there remains a need for an explicit provision to guarantee the right of every Malaysian to healthcare. Until Parliament specifically amends the Federal Constitution to include a provision guaranteeing healthcare, the Courts have tried to solve this by adopting a liberal meaning to the word ‘life’ to include facets of life.


The importance of health and healthcare as a fundamental human right has been recognised across the globe. The World Health Organization (WHO), enshrined “the right to the enjoyment of the highest attainable standard of physical and mental health” in its 1946 Constitution, further defining the term health in its preamble to mean, “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”.[17] Following this, the International Covenant on Economic, Social and Cultural Rights (ICESCR) provided for the right to health under Article 12.[18] With such international organisations recognising health as fundamental human rights that should be afforded to everyone regardless of race, creed or gender, how have nations included the right to health and healthcare into their constitutional framework?


The Indian Constitution, like our own, does not expressly provide for the right to health in its provisions. However, Indian courts through judicial interpretation in decided cases have liberally construed the guarantee of the right to life and personal liberty of every citizen under Article 21 of the Constitution (in pari materia with Article 5 of the Malaysian Constitution) to include the right to health and healthcare.

In the case of State of Punjab v Mohinder Singh Chawla,[19] the right to health was held to be an integral component to the right to life, and therefore, that the government was constitutionally obligated to provide health facilities for its people.[20] In a similar vein, the court in Paschim Banga Khet Mazdoor Samity v State of West Bengal[21] held that the failure of a government hospital in ensuring timely medical treatment violates a patient’s constitutional right to life.[22] Given the many similarities between the Indian and Malaysian Constitution, it is perhaps time for Malaysian Courts to follow these interpretations of the Indian Courts and include the right to health and healthcare under the constitutionally guaranteed right to life, in the absence of express constitutional provisions to that effect.


As with Malaysia and India, Canada’s constitution also does not expressly provide for a right to health.[23] However, following constitutional reforms in 1982, the Canadian Charter of Human Rights & Freedoms[24] was incorporated into the Canadian Constitution, which included many of the basic human rights enshrined in the 1948 Universal Declaration of Human Rights (UDHR)[25] and the International Covenant on Economic, Social and Cultural Rights (ICESCR).[26] This Charter played an instrumental role in the development of recognising the right to health in Canada and has been applied by courts in advancing human rights, as well as reviewing government initiatives and restrictions concerning matters such as access to reproductive health, substance abuse therapy, assisted suicide, Covid-19 public health restrictions and prisoner access to essential health services.[27]

Despite this, Canadian courts seem to have taken a rather deferential approach in adjudicating health rights - where courts have avoided interfering with health care resource allocation by interpreting section 7 of the Charter, which guarantees ‘life, liberty and security of the person’ to only protect negative rights such as statutes that could limit fundamental rights, or the rights of a citizen to noninterference on the part of the government.[28] In an infamous 2004 ruling, the Supreme Court of Canada held that the Charter grants no positive right to health care, and that “[t]his Court has repeatedly held that the legislature is under no obligation to create a particular benefit.”[29]


In contrast with the previous examples of nations, South Africa has enshrined the right of access to healthcare in its Constitution. Article 27 of the Constitution provides that:

"(1) Everyone has the right to have access to: health care services, including reproductive health care; sufficient food and water; and social security, including, if they are unable to support themselves and their dependents, appropriate social assistance. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. (3) No one may be refused emergency medical treatment."

Section 27 thus confers not only a negative right, where both the state and individuals are restricted from interfering with a person’s right to healthcare, but a positive right as well where persons are entitled to receive healthcare from the state.[30]


Directly quoted from Dr. Tedros Adhanom Ghebreyesus, the Director General of World Health Organization, the right to health for all people means that everyone should have access to the health services they need, without suffering financial or any other general hardship,[31] hence the relevancy of making healthcare as one’s fundamental rights will be truly beneficial. However, the right to health needs to be distinguished from the right to healthcare. The right to healthcare requires the state to do everything possible to provide the population with the necessary medical services, regardless of their financial situation.[32] As a fundamental right, healthcare will impose legal obligation on the state to provide timely, acceptable, and affordable healthcare of appropriate quality, as well as to provide for the underlying determinants of health, such as safe and potable water, sanitation, nutritious foods, adequate housing, health-related information, and education.[33]

i) Elimination of discrimination in Malaysia

By making healthcare a fundamental right, discrimination under Article 8(1) based on the medical practitioners personal prejudices in healthcare treatment will be substantially reduced and everyone, from all walks of life, will have access to the greatest, most sustainable medical care. For instance, in the current situation, numerous published and undocumented complaints from patients who identify as Lesbian, Gay, Bisexual, or Transgender (LGBT) revealed negative experiences with prejudice in the Malaysian healthcare system, raising the issue of discrimination in receiving adequate and equitable healthcare treatments.[34] An illustration would be when the doctors and other medical professionals are said to keep great distance from them and avoid touching them. Not to mention rash conclusions, insufficient medical diagnosis, and inadequate treatment.[35] As a result, this crop of individuals will gradually lose their right to health if their healthcare rights are rejected. Having healthcare as one of Malaysia's fundamental rights should logically ensure that every single person gets their fair share of the cake. Doctors do own a sense of duty regardless of their personal beliefs as enshrined in the code of ethics under the Malaysian Medical Association (MMA).

However, there are several limitations to this proposition. In the case of Beatrice Fernandez v. Sistem Penerbangan Malaysia & Anor,[36] the court held that Article 2(3) of the First Schedule to the collective agreement between the parties which required the appellant to resign on becoming pregnant is not ultra vires with respect to Article 8 of the Federal Constitution. The rationale behind this proposition is that the very concept of a 'fundamental right' involves State action. It is a right guaranteed by the State for the protection of an individual against arbitrary invasion of such right by the State. Where the invasion is by another private individual, the aggrieved individual may have his remedies under private law, but the constitutional remedy would not be available.

In short, this would render any claims that doctors in private practise acting discriminatorily unsustainable in light of constitutional law. Their remedies lie elsewhere, and in this case it would be in private law. Nonetheless, it does provide somewhat of a safety net to patients by preventing doctors in public hospitals from acting discriminatingly. To some extent, the issue of discrimination in health treatment may be mitigated.

ii. Creates a more just healthcare in Malaysia

Another justification for having rights to healthcare as one’s fundamental right is that it will promote solidarity, proportionality and transparency towards the Malaysian healthcare system.[37] Comparatively in India, the right to healthcare is a natural corollary and is extensively protected by the Indian Constitution.[38]

This leads to the question on how India incorporates its right to healthcare. Right to Healthcare in India has been emphasised in the constitution through different articles and rights. The Right to Healthcare is India’s first national health reform plan and the main function of this bill is to provide basic healthcare services to all citizens of India, free of cost. On top of that, it is to introduce transparency and accountability into the health sector and encourage private investment in the healthcare sector.[39] As further justification, in the case of State of Punjab v Ram Lubhaya Bungga,[40] The court recognized that the right to health care is fundamental to the right to life and that it is the responsibility of the state to ensure the right from being illusionary. As a result, with India taking the lead and becoming the world leader in health administration, Malaysia has nothing to lose by following in India's footsteps.

Widening the comparative scope of right to healthcare, in European countries and Canada, health care is regarded as a vital and mandatory public service, the provision of which is the responsibility of the public sector and is not dependent on individual income.[41] The principle of universal healthcare operates in these countries where not only it protects the population from financial risks, but also guaranteeing the provision of high quality medical services and ensuring a fair and equal right to health for all people. [42]

As a result, Malaysia is encouraged, as a developing country, to make better decisions and implement better initiatives for future generations, and making healthcare one of the fundamental rights will eventually serve the purpose.


Healthcare is often deemed essential, but it is not entirely necessary to state that it is supposed to be enshrined as a fundamental right for society in general, inclusive of our nation which is why we will not be able to find healthcare expressly mentioned as a right in our constitution. There are various reasons as to why this view is quite widespread globally.

i) Difficulty in identifying as to what healthcare should constitute if it is made a fundamental right

Firstly, healthcare is something that is very much generic and widespread. The bare minimum requirement of something we intend to classify as a fundamental right would be the ability to define what it is[43] and in the scope of medical healthcare it would be difficult to do so. The predicament then relates as to how its scope will be limited, for otherwise, the government will be duty-bound to provide even the most remote forms of screenings, medicines, treatment and whatnot. If the Courts were to interpret the word "life" to encompass healthcare, on grounds of public policy, then express limitation should be imposed.

Should the government provide free sanitary pads, condoms, health screening, dialysis treatment etc, or should it be decided on a case-by-case basis? Failure to impose express limits otherwise may result in a never-ending flood-gate of litigations

ii) Inefficiency in terms of manpower

Most nations make a clear stand that the lack of manpower would be the key source of avoiding making healthcare a fundamental right for all. This would be seen in terms of financial ability to sustain such an effort along with enough sources of medication or medical staff to continue such an initiative.

Now it is not too far-fetched to imagine the outcome of our own nation for this matter. Just in 2022 there were reports that doctors are often overworked due to shortage of manpower.[44] Allowing this sort of right in our nation would possibly make the situation severe regardless of how little our population is compared to other nations especially given the fact that we already face the issue of overworked medical staff on a consistent basis. This can be seen as there are reports of the healthcare system being strained in both manpower and financial matters.

iii) Expansion of healthcare would cause issues of equal treatment

Our constitution has mentioned that no one should be discriminated against on various grounds[45] but it is not enshrined in our constitution on medical aid as aforementioned. Even if it was there, it would still lead to a violation of equal treatment via healthcare because an expansion of medical care would transpire if healthcare became a fundamental right to all citizens. This would lead to a difficult question which would be as to whom would be able to access such care and coverage of healthcare expenses and medication.[46] The Malaysian government has already increased allocation towards healthcare towards the B40 specifically despite other economic classes having a higher tax rate.[47] This would invoke the issue of equal treatment and difficulty in enforcing healthcare treatment to all.


In conclusion, the fundamental right to healthcare in Malaysia is not explicitly stated and discussed. However, it has been implied in some ways such as in the Federal Constitution, and international bodies such as WHO has recognized health as a fundamental right. This country is on the right track in improving the quality of healthcare services however more serious improvement needs to be done. Hence, a proper legal framework should be made to take this matter seriously so that the rights of the people for better healthcare are protected. For starters, we could apply basic international legal mechanisms as a foundation to the legal framework to meet the global standards.


[1] WHO Constitution of 1946. Retrieved from

[2] health care. (2022). In The Dictionary.

[3] Seaton, A. (2018f, July 5). From Caution to Celebration: The NHS at 70. History of Government.

[4] Day, C. (2017, December 7). The Beveridge Report and the foundations of the Welfare State. The National Archives Blog. Retrieved January 14, 2023, from

[5] See footnote 4 above.

[6] Campbell, D. (2021, 14 Oct). Migrants in England Denied NHS Care for Average of 37 weeks, Research Finds. The Guardian. Obtained from

[7] Malaysia’s Healthcare System: A Guide for Visitors and Expats. International Citizens Insurance. Obtained from

[8] Federal Constitution (Malaysia). Federal and Concurrent List.

[9] Yusriando… Anis Madhurohatun (2018). Government Responsibilities in Health Care Based on Dignified Justice. South East Asia Journal of Contemporary Business, Economics and Law. 15(4). 33. Obtained from

[10] Suzana bt Md Aris v DSP Ishak bin Hussain & Ors [2011] 1 MLJ 107.

[11] Tengku Noor Azira Tengku Zainudin… Kamaliah Salleh (2021). Legal Exploration of Right to Health. Pertanika Journals: Social Science & Humanities. 221, 225. Obtained from

[12] Federal Constitution (Malaysia) art 5(1).

[13] Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261.

[14] See footnote 9 above.

[15] Munn v Illinois 94 U.S. 113.

[16] Bandhua Mukti Morcha v Union Of India & Ors [1984] AIR 802.

[17] UN Office of the High Commissioner for Human Rights (OHCHR). (2008). The Right to Health: Fact Sheet No. 31. UN Office of the High Commissioner for Human Rights (OHCHR). Retrieved from <>. Site accessed on 18 January 2023.

[18] International Covenant on Economic, Social and Cultural Rights (ICESCR), GA Res 2200A (XXI), UN GAOR (16 December 1966), art 12. Retrieved from <>.

[19] State of Punjab v Mohinder Singh Chawla [1997] 2 SCC 83.

[20] Mathiharan, K. (2003). The Fundamental Right To Health Care. Issues in Medical Ethics, 11(4), 123. Retrieved from <>.

[21] Paschim Banga Khet Mazdoor Samity v State of West Bengal [1996] 4 SCC 37.

[22] See footnote 4 above.

[23] European Parliamentary Research Service. (2022). Right To Health, A Comparative Law Perspective: Canada. European Parliamentary Research Service. Retrieved from <>. p 7.

[24] Constitution Act, 1982 (Canada). Retrieved from <>.

[25] Universal Declaration of Human Rights, GA Res 217 A (III), UN GAOR (10 December 1948). Retrieved from <>.

[26] See footnote 9 above.

[27] See footnote 19 above, p 9.

[28] Thomas, B., & Flood, C., M. (2015). Putting Health to Rights: A Canadian View on Global Trends in Litigating Health Care Rights. Canadian Journal of Comparative and Contemporary Law, 1(1), 49, 67. Retrieved from <!fragment/zoupio-_Tocpdf_bk_8/BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoAvbRABwEtsBaAfX2zhoBMAzZgI1TMAHAEoANMmylCEAIqJCuAJ7QA5KrERCYXAnmKV6zdt0gAynlIAhFQCUAogBl7ANQCCAOQDC9saTB80KTsIiJAA>.

[29] Auton (Guardian ad litem of) v British Columbia (Attorney General) [2004] SCC 78, para 41.

[30] Ngwena, C. (2000). The Recognition of Access to Health Care as a Human Right in South Africa: Is It

Enough? Health and Human Rights, 5(1), 27, 28, 29. Retrieved from <>.

[31] Ghebreyesus. (2017, Dec 10). Health is a Fundamental Human Right. World Health Organization. Retrieved from

[32] Verulava, T. (2021). Access to Healthcare as a Fundamental Right or Privilege. Siriraj Medical Journal, 73(10).

[33] See footnote 30 above.

[34] Gideon, Thilaga, Pang Khee Teik. (n.d.). Crying Discrimination: Making Healthcare Inclusive for LGBT People. Queer Lapis. Retrieved from

[35] See footnote 30 above.

[36] [2005] 3 MLJ 681.

[37] Varsha. (2022, Sep 5). Fundamental RIghts and Public Health Law: Right to Health. B&B Associates LLP. Retrieved from

[38] Siwadi. (2022, Nov 20). Right to Health as a ‘Fundamental Right’. Law column. Retrieved from

[39] Tanwir. (n.d.). The Right to Healthcare in India Explained. LawWiser. Retrieved from

[40] [1998] 4 SCC 117.

[41] See Footnote 31 above.

[42] See footnote 30 above.

[43] Barlow P. (1999). Health care is not a human right. BMJ (Clinical research ed.), 319(7205), 321.

[44] Povera,A. (2022). Khairy to look into claims of overworked medical officer. New Strait Times. Obtained from

[45] Federal Constitution (Malaysia) art 8(2).

[46] Smith, R., Hiatt, H., & Berwick, D. (1999). Shared ethical principles for everybody in health care: a working draft from the Tavistock group. BMJ (Clinical research ed.), 318(7178), 248–251.

[47] Asila Jalil (2019, Oct 14). Healthcare should be more than just for B40. The Malaysian Reserve. Retrieved from

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