The Chronicles of The Basic Structure Doctrine

The Federal Constitution is the supreme law of the land in Malaysia. Yet, like all laws, it must be capable of change. However, how much change can the constitution be subject to by a majority political faction before it becomes unrecognisable?
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​I. INTRODUCTION
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The basic structure doctrine is no stranger to disciples of the law. Frequently tied in with the issue of constitutional amendments, the basic structure doctrine, as its name suggests, posits that there are several features within the Constitution that form the basic fabric of our nationhood, and cannot simply be taken away by virtue of a constitutional amendment or a legislation propounded by Parliament.
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The brainchild of judicial activism, this seminal doctrine which arose from the Indian constitutional courts has found its place within Malaysian jurisprudence. For many years, it was a doctrine which was felt but not seen, as many Malaysian judges had been in the past sceptical of its compatibility with local circumstances. However, after the luminous decisions of the Federal Court in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat[3] and Indira Gandhi v Pengarah Jabatan Agama Islam Perak,[4] there is no longer any reason to question its importance.

II. THE DAWN OF THE BASIC STRUCTURE DOCTRINE

​As stated earlier, the basic structure doctrine’s inception is owed to the Indian constitutional courts. It first sprouted through the case of Sajjan Singh v State of Rajasthan.[5] In this case, the Indian Supreme Court was invited to examine whether the Indian Parliament’s power to amend the Constitution under Article 368 included the power to amend the Fundamental Rights guaranteed within Part III. The majority of the Supreme Court held that the Parliament does have such power under Article 368 of the Constitution.[6]

Mudholkar J however, in his minority view, commented on whether the Parliament may tamper with the citizens’ fundamental liberties as they please. His Lordship observed that:

'It is true that the Constitution does not directly prohibit the amendment of Part III. But it would indeed be strange that rights which are considered to be fundamental and which include one which is guaranteed by the Constitution (vide Art. 32) should be more easily capable of being abridged or restricted than any of the matters referred to in the proviso to Art. 368 some of which are perhaps less vital than fundamental rights…'
[Emphasis my own]
 
His Lordship questioned the seemingly feeble nature of such rights that should be considered fundamental and highlighted the fact that the Constitution in India is a written one. The written Constitution[7] immortalised many founding features of India, such as its three separate organs of State, the recognition of fundamental liberties, and the prescribed forms of oaths of office.,  Hence, this indicates the intention of the framers of the Constitution[8] that there should be a degree of permanency to features which are considered basic and crucial. His Lordship also queried whether Article 368[9] envisaged the vesting of Parliament with overarching powers to rewrite the Constitution[10] through the amendment of its basic features.

At the conclusion of His Lordship’s dissent, he commented:

‘Before I part with this case I wish to make it clear that what I have said in this judgment is not an expression of my final opinion but only an expression of certain doubts which have assailed me regarding a question of paramount importance to the citizens of our country : to know whether the basic features of the Constitution under which we live and to which we owe allegiance are to endure for all time - or at least for the foreseeable future - or whether the yard no more enduring than the implemental and subordinate provisions of the Constitution.’
[Emphasis my own]
 
Soon after, this doctrine gained traction through the Supreme Court’s decision in Golak Nath v State of Punjab & Ors,[11] where the court held that fundamental rights under Part III of the Constitution were non-amendable through the constitutional amending procedure established in Article 368 of the Constitution.[12]

Chief Justice Subba Rao, in elucidating his reasons as to the majority’s holding, began by saying:

‘The fundamental rights are given a transcendental position under our Constitution and are kept beyond the reach of Parliament.’

​His Lordship opined that Parliament should not have the authority to tailor fundamental liberties to their liking due to the scheme of the Constitution and the nature of the freedoms. Parliament is not the arbiter of freedom, instead, it is Part III that has the final say. In verbatim, His Lordship commented as such:

'The importance attached to the fundamental freedoms is so transcendental that a bill enacted by a unanimous vote of all the members of both Houses is ineffective to derogate from its guaranteed exercise. It is not what Parliament regards at a given moment as conducive to the public benefit but what Part III declares and protects, which determines the ambit of the freedom. The incapacity of Parliament therefore in exercise of its amending power to modify, restrict, or impose fundamental freedoms in Part III arises from the scheme of the Constitution and the nature of the freedoms.'
 
To conclude, His Lordship christened fundamental rights as part of the basic structure of the Constitution, which meant that the essence of those rights cannot be destroyed, only preserved.
 
Despite the rejuvenating verdict in Golak Nath,[13] a series of constitutional amendments were introduced by Parliament to nullify its effect.[14] The efforts of the judiciary were undone by the work of the then Indian prime minister, Indira Nehru Gandhi.
In 1973, these amendments to the Constitution were challenged before the Supreme Court through Kesavananda Bharati v State of Kerala & Anor.[15]There was great controversy surrounding this case, as there were widespread allegations that the government had manipulated the appointment of judges to their benefit. Given the  importance of this case, 13 judges were empanelled to hear it. By a 10:3 majority, the decision in Golak Nath[16] was effectively overruled by the Supreme Court. However, by a thin majority of 6:5, the basic structure doctrine introduced in Golak Nath[17] and Sajjan Singh[18] was upheld. The eminence of this doctrine was cemented when the Supreme Court held that the Parliament’s power to amend under Article 368 is not absolute and is subject to the condition that any purported amendments must not destroy the basic features of the Indian Constitution.

The court even listed out several basic features of the Indian Constitution, which includes the supremacy of the Constitution, the Republican and Democratic form of government and sovereignty of the country, the secular and federal character of the Constitution, the demarcation of power between the legislature, executive and the judiciary, and the dignity of the individual. Such basic features, the court opined, were not only discernible from the Preamble, but also from the whole scheme of the Indian Constitution.  

The rich philosophy behind this doctrine was explained in the diaphanous judgment of KS Hedge and AK Mukherjee JJ:

'Our Constitution is not a mere political document. It is essentially a social document. It is based on a social philosophy and every social philosophy like every religion has two main features, namely, basic and circumstantial. The former remains constant but the latter is subject to change. The core of a religion always remains constant but the practices associated with it may change. Likewise, a Constitution like ours contains certain features which are so essential that they cannot be changed or destroyed. In any event it cannot be destroyed from within. In other words, one cannot legally use the Constitution to destroy itself.'
[Emphasis my own]
 
With the conclusion of this case, the basic structure doctrine was recognised within the Indian constitutional landscape. This doctrine has since been widely utilized by the Indian courts on matters pertaining to the amending of the Constitution.[19]

III. THE DOMESTIC RECEPTION OF THE BASIC STRUCTURE DOCTRINE

It was only a matter of time before the waves of the basic structure doctrine reached the sandy shores of Malaysia. This doctrine was first vaguely considered in Government of Kelantan v Government of Malaya.[20] In this case, the plaintiff argued that the incorporation of Singapore into the Malaysian Federation would entail a fundamental change that would require the consent of Kelantan despite the absence of an explicit provision requiring consent from constituent states. Thomson CJ rejected the plaintiff’s contention but observed that if Parliament does something ‘fundamentally revolutionary’, it may require the ‘fulfillment of a condition which the Constitution itself does not prescribe.’ Within this dictum, the roots of the basic structure doctrine in Malaysia were established.

However, the introduction of said doctrine was not without resistance. In Loh Kooi Choon v Government of Malaysia,[21] the apex court was presented with the argument that the amendment of Article 5(4) of the Federal Constitution[22] was not permissible as it destroyed its basic structure. It was argued that the amendment of the provision contravened the spirit of the Federal Constitution as it effectively invalidated the right of habeus corpus. In response to the proposed introduction of the doctrine, the Federal Court opposed it in strong terms. Raja Azlan Shah FJ stated:

'There have also been strong arguments in support of a doctrine of implied restrictions on the power of constitutional amendment. A short answer to the fallacy of this doctrine is that it concedes to the court a more potent power of constitutional amendment through judicial legislation than the organ formally and clearly chosen by the Constitution for the exercise of the amending power.'
[Emphasis my own]
 
However, despite the explicit rejection of the doctrine in this case, Raja Azlan Shah FJ did ultimately identify three concepts as basic to Malaysia, namely: (i) fundamental rights; (ii) distribution of sovereign power between the States and the Federation; and (iii) separation of power amongst the executive, legislature and judiciary.
 
Then, in Phang Chin Hock v Public Prosecutor[23] Suffian LP (as he then was) saw no merit to conclude on the applicability of the doctrine in these words:

'For the reasons which will appear when we deal with the third point in a moment, it is unnecessary for us to say whether or not Parliament’s power of constitutional amendment extends to destroying the basic structure of the Constitution. For the purpose of this appeal it is enough for us merely to say that Parliament may amend the Constitution in any way they think fit, provided they comply with all the conditions precedent and subsequent regarding manner and form prescribed by the Constitution itself.'
[Emphasis my own]
 
His Lordship took the view that our Federal Constitution must be distinguished from the Indian Constitution for two reasons: (i) India was not provided a Constitution when the British left; and (ii) the Indian Constitution was drafted by a Constituent Assembly with an express preamble. His Lordship further pointed out that we had a ready-made Constitution when the British surrendered sovereignty over our lands, and our Constitution contains no preamble that is akin to the Indian Constitution.  

Suffian LP again stood by his ground against the basic structure doctrine in Mark Koding v Public Prosecutor,[24] where His Lordship expressed:

'As regards the argument that the amendments complained of affected the basic structure of the constitution and are therefore unconstitutional, with great respect to Mr. Heald, we have no difficulty in holding that they do not; and it was therefore unnecessary for us to consider the question whether or not Parliament has power to so amend the Constitution as to alter its basic structure whatever that may be.'
[Emphasis my own]
 
The Federal Court however granted the basic structure doctrine a glimmer of hope for revival in Sivarasa Rasiah v Badan Peguam Negara.[25] In this case, the appellants submitted that the fundamental rights under Part II of the Constitution[26] were part and parcel of the basic structure, and that Parliament could not enact laws or constitutional amendments which violated that basic structure. In response to this submission, Gopal Sri Ram FCJ made reference to Kesavananda Bharati,[27] and stated:
 
‘Further, it is clear from the way in which the Federal Constitution is constructed there are certain features that constitute its basic fabric. Unless sanctioned by the Constitution itself, any statute (including one amending the Constitution) that offends the basic structure may be struck down as unconstitutional. Whether a particular feature is part of the basic structure must be worked out on a case by case basis. Suffice to say that the rights guaranteed by Part II which are enforceable in the courts form part of the basic structure of the Federal Constitution.’
[Emphasis my own]
 
This decision in Sivarasa Rasiah[28] marked the beginning of a new dawn for the basic structure doctrine in Malaysia. Since then, the courts have begun to identify many different elements within the Constitution[29] to be a part of its basic structure.

IV. CATALOGUING THE BASIC FEATURES OF THE FEDERAL CONSTITUTION
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A. Human Rights within Part II of the Federal Constitution

The court’s decision in Sivarasa Rasiah[30] to treat Part II rights as basic structure was affirmed by the Court of Appeal in Muhammad Hilman bin Idham v Kerajaan Malaysia.[31] This case concerned the claim regarding a declaration that S.15(5) of the University and University Colleges Act[32] contravened Article 10(1)(a) of the Federal Constitution.[33] Contrarily, the respondents argued that the impugned provision was permitted by Clause 2(a) of Article 10,[34] and that the restriction was necessary in the interest of ‘public order or morality’. Mohd Hishamudin JCA (as he then was), a luminous judge known for his spirit of judicial activism, recognised that Part II of the Federal Constitution forms part of the basic structure of the Constitution.

The High Court in SIS Forum v Dato Seri Syed Hamid b Syed Jaafar Albar[35]  also referred to Sivarasa Rasiah[36] in allowing an application for judicial review to quash the Minister of Home Affairs’ book ban on the book published by the appellants, entitled ‘Muslim Women and the Challenges of Islamic Extremism’.

In 2019, Alma Nudo Atenza v Public Prosecutor[37] was decided by the Federal Court. The bench led by Richard Malanjum CJ (as he then was) made the opinion that Article 5(1), which guarantees the right to life and liberty of an individual, is the foundation upon which other fundamental rights in the Constitution draw their support. In citing the Indian case of Maneka Gandhi v Union of India,[38] His Lordship took note that the deprivation of personal liberty affects every other aspect of human freedom and dignity. Thus, in accordance with the well-settled jurisprudence that Part II rights are part of the basic structure, this case supplements the basic structure doctrine with the need to read these provisions harmoniously, as all fundamental liberties in Part II were stated to be ‘parts of a majestic, interconnected whole and not each as lonely outposts’.

As such, it narrows the window for any future court to hold that a certain fundamental right, in isolation, would fall out of the basic structure framework. Also, with Article 5(1) being the ‘most fundamental of human rights’, the Federal Court has buttressed the understanding that the right to life and liberty is the bedrock of Part II rights, thereby being the most basic component of this recognised limb of the basic structure.

In KCSB Consortium v Pentadbir Tanah Johor Bahru, the High Court further buttressed the right to property as a basic structure within this constitutional framework.[39] The court, adding onto the principle in Sivarasa Rasiah,[40] held that Article 13(1) which safeguards the right to property cannot be removed by any law or institution for being part of the basic structure of the Constitution.
With these cases, there is no longer any merit in mooting that Part II rights would fall out of the basic structure of our Constitution. Each right enumerated within Part II is a crucial component of the Federal Constitution and cannot be negated completely.
However, it is not only Part II rights which are within the premises of the basic structure doctrine. Other aspects within our legal framework are also given recognition as a crucial component of the Constitution.

B. Separation of Powers and Judicial Power

The concept of Separation of Powers propounded by Montesquieu connotes the understanding that all organs of government should exist independently of each other. As elucidated by Raja Azlan Shah J in Loh Kooi Choon v Government of Malaysia:[41]
‘no single man or body shall exercise complete sovereign power, but that it shall be distributed among the Executive, Legislative and Judicial branches of government, compendiously expressed in modern terms that we are a government of laws, not of men.’[42]

There can be no liberty if the three organs unite in one person, and no one organ can have more power than the other. An overlap between such powers will incentivise the possibility of abuse and unrest. Inseparable from the discussion of Separation of Powers is the notion of Judicial Power. Judicial Power as a concept rests on the understanding that judicial independence from executive or legislative interference must be preserved, so as to ensure proper subservience to the rule of law. The importance of these two concepts to the Constitution has been recognised in the Reid Commission Report[43] and the White Paper.[44]  

Merdeka University Berhad v Government of Malaysia was one of the earlier cases to discuss the importance of judicial power and separation of powers. [45] Suffian LP (as he then was), observed the following:

‘The fact that the Federal and High Courts are excluded from the definition of public authority does not affect the question before us. It is due to the need to maintain judicial independence, and to make clear that these courts are not part of the Executive.’[46]

Subsequently, numerous cases have affirmed the importance of separation of powers in the scheme of the Constitution.[47] However, this notion was well entrenched as a fundamental feature within the Constitution only until the era of judicial depression. Due to the amendment to Article 121(1)[48] after the 1988 Constitutional Crisis, the Federal Court in PP v Kok Wah Kuan[49] found favour for a pedantic interpretation of the Constitution. This pedantic view has subdued judicial power and separation of powers to the written words of the law. It also caused judicial turmoil as a basic feature of the Constitution had been severely undermined.

In the wake of Kok Wah Kuan[50] came Nik Noorhafizi v Public Prosecutor.[51] Here, the Court of Appeal concluded that S.27 of the Peaceful Assembly Act[52] was constitutional as it fell within the ambit of the permissible restrictions of the right to assemble. Hamid Sultan JCA however, in his dissenting judgment, saw the need to address the issue of judicial power in relation to the basic structure doctrine. His Lordship posited that the doctrine does not permit novice or pathetic interpretation of the Constitution.[53] He further added:  

‘The doctrine itself does not permit the judiciary to abrogate its constitutional role and succumb to fallacious and/or pathetic argument that Parliament has deprived its judicial powers when Parliament is not authorized to do so under the Constitution.’
[Emphasis my own]

After much criticism and public outcry over Kok Wah Kuan,[54] the Federal Court in Yang Dipertua, Dewan Rakyat & Ors v Gobind Singh Deo attempted to mitigate the effects of its earlier decision.[55] Through Suriyadi FCJ (as he then was), the court acknowledged the doctrine of separation of powers as a feature of the Constitution.[56] There was no mention of whether it is actually a basic feature that may not be abrogated by legislative provisions. However, the court acted to its own detriment when it quoted the very problematic paragraph from Kok Wah Kuan,[57] that is:

‘Our Constitution does have the features of the separation of powers and at the same time, it contains features which do not strictly comply with the doctrine. To what extent the doctrine applies depends on the provisions of the Constitution. A provision of the Constitution cannot be struck out on the ground that it contravenes the doctrine…’
[Emphasis my own]

Therefore, there was still no light of redemption at the end of the tunnel. The doctrines of separation of power and judicial power were still entangled within a thicket of uncertainty.

The panacea to this judicial headache came in the year 2017, when the Federal Court heard Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat.[58] In this case, the constitutionality of S.40D(3) and the proviso to S.49(1) of the Land Acquisition Act was challenged. [59] From such a challenge, Zainun Ali FCJ saw the need to address the error in Kok Wah Kuan.[60] Her Ladyship opined that the amendment to Article 121(1) could not be read in such a narrow manner as it would be manifestly inconsistent with the supremacy of the Federal Constitution in Article 4(1).[61] Her Ladyship reasoned that the removal of judicial power from the judiciary’s inherent jurisdiction would suborn said institution to the Parliament. Consequently, the Executive would be exerting huge influence over the jurisdiction of the Courts. Her Ladyship eventually concluded that judicial power and separation of powers are parts of the basic structure of the Constitution:[62]
 
‘Thus, given the strong observations made on the true nature and purpose of the impugned enactment, any alterations made in the judicial functions would tantamount to a grave and deliberate incursion in the judicial sphere. The important concepts of judicial power, judicial independence and the separation of powers are as critical as they are sacrosanct in our constitutional framework.’
 
The recognition of these concepts as parts of the basic structure of the Federal Constitution did not end there. The Federal Court conducted a clear exposition on the inclusion of judicial power within the basic structure doctrine in Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak.[63] Her Ladyship Zainun Ali FCJ expounded that it is ‘beyond a shadow of doubt’ that judicial power is vested in the High Courts, and that judicial powers such as judicial review, the principles of separation of powers, the rule of law, and the protection of minorities are parts of the basic structure of the Constitution. In relation to judicial review, the court observed that this power is essential to the role of courts and is inherent in the Constitution.[64] Judicial review is significant for several reasons: (i) judicial power cannot be removed from civil courts, (ii) judicial power cannot be conferred on any other body whose members do not enjoy equal constitutional protection to ensure their independence.

Another important decision from the Federal Court is the case of Alma Nudo Atenza.[65] This case concerned the constitutionality of S.37A of the Dangerous Drugs Act[66] in light of Articles 5, 8 and 121 of the Federal Constitution. In its judgment, the court found that constitutions based on the Westminster model are drafted based on the principle of separation of powers, and this logically infers that these provisions surely intend to confine the exercise of legislative, executive and judicial power with the respective branches of government. As such, the absence of express recognition of separation of powers within the Federal Constitution does not mean that it isn’t fundamental. Other than bolstering the decisions of Semenyih Jaya and Indira Gandhi, the court in Alma Nudo Atenza also added that the basic structure doctrine empowers the courts to scrutinize any act of Parliament on, inter alia, two matters: (i) contravention with the express words of the Constitution; and (ii) violation of doctrines or principles that constitute the constitutional foundation.

From these cases, it is clear that the doctrines of judicial power and separation of power play a pivotal role in protecting the salient features of our Constitution. Any law or constitutional amendment which besieges such basic features of the Constitution may be rendered null and void. These two decisions have been subsequently followed by many other cases.[67]

However, despite the celebrated judgments of these two cases, a subsequent Federal Court decision brews trouble. In the controversial case of JRI Resources Sdn Bhd v Kuwait Finance House, the court was asked whether ss. 56 and 57 of the Central Bank of Malaysia Act (CBMA)[68] usurped the court’s judicial power and function to determine Shariah issues, and whether those provisions go against the ethos of the separation of powers. [69]

The majority, through Zawawi Salleh FCJ, held that the legislature had authority to vest the Shariah Advisory Council (SAC) with the power to ascertain Islamic law, and this power is not judicial power. Further, Parliament was also empowered to vest the function of ascertainment of Islamic law in the SAC, as civil courts are not sufficiently equipped to make findings on Islamic law. The binding nature of SAC rulings on civil courts is thus justified, and necessary for certainty in the industry of Islamic banking. This decision is troubling. Subordinating the courts’ authority to the SAC on matters pertaining to Islamic law is no different from suborning judicial power to the will of the Legislature and the Executive. By letting the provisions of the CBMA[70] reign, the Federal Court affirmatively acknowledged the power of the legislature in circumventing the court’s jurisdiction under the guise of ‘religious expertise’. The courts should not have their limbs of justice hogtied when adjudicating any dispute brought to its attention, even when it pertains to Islamic law. It is pertinent to note here that although this matter is concerning Islamic principles, civil courts may still be able to administer justice by entertaining expert evidence on such Islamic principles. Mere reasons of expertise are never muscled enough to wrestle judicial power from the High Courts.

The concurring decision of Azahar Mohamed FCJ, with respect, only stirred the pot further. His Lordship held that the impugned provisions did not intrude judicial power and the doctrine of separation of powers, as the ascertainment of Islamic laws delegated to the SAC are a function or power delegated by the legislative branch to the judicial branch and the SAC. His Lordship opined that a certain ‘shared jurisdiction’ is in play here, as the SAC and the courts operate with ‘some level of integration’ to ensure proper functioning of Islamic financial services.

The dissenting judges did not sit still with their arms folded. Richard Malanjum CJ (as he then was) and David Wong CJSS both wrote their own dissenting judgments. In essence, both judges rejected the argument that the impugned sections did not violate the doctrine of separation of powers, as they did not vest judicial power within the SAC. The finality of the SAC’s rulings on Shariah issues effectively circumvented and reduced the High Court to a mere rubber stamp of the SAC’s rulings. Their Lordships also noted that the argument of Islamic expertise held no water as expert evidence may be adduced to civil courts in deciding matters pertaining to Shariah principles. Both judges concluded that the impugned provisions should be struck down, and no usurpation of judicial power should be condoned.

Despite the disturbance caused by JRI Resources,[71] the recent High Court decision in PP v G Saminathan is a healthy development for the principle of separation of powers and judicial power.[72] This case revolved around the detention of G Saminathan, a Parliamentarian, for alleged links to the Sri Lankan terror group known as the Liberation Tigers of Tamil Eelam (LTTE). The issue before the High Court was whether bail may be granted to the accused, and whether S.13 of the Security Offences (Special Measures) Act 2012 (SOSMA)[73] is unconstitutional for conflicting with Articles 8 and 121 of the FC. S.13 of SOSMA, in effect, denies the court any discretion to grant bail to those accused under the said controversial security legislation.

In a glistening decision by Justice Mohd Nazlan Ghazali, it was held that S.13 of SOSMA is unconstitutional and ultra vires Articles 8 and 1221(1) of the Constitution. On the issue of judicial power, His Lordship observed:

‘The argument that the doctrine of separation of powers is not a feature of the Constitution has been resoundingly discarded. In my view, there is no denying that a fundamental bulwark of a constitutional democracy is the independence of the judiciary. But like the doctrine of the separation of powers, this concept is nowhere stated in the Constitution. These, including the related basic structure doctrine, are the overarching values which are integral to the true interpretation of the Constitution and the proper functioning of our democracy, a construction that will prevail if this living Constitution of ours is properly interpreted - which ought to be in prismatic fashion (see the Federal Court decision in Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301).’
 [Emphasis my own]

Justice Nazlan also placed emphasis on the centrality of judicial power to the doctrine of separation of powers, which is a basic feature of the Constitution. However, what follows has been a matter of debate as of late. His Lordship took the view that the power to consider bail is a judicial power, despite the express wordings of S.13. He found supporting precedents[74] for such a view, especially in the decision of Dato’ Yap Peng.[75] His Lordship perceived that it would be a failure of the judiciary’s oath to defend the Constitution if it allows Parliament to dictate the courts’ power to grant bail. Hence, the power to grant bail falls squarely within judicial power, and this runs in tandem with the presumption of innocence plus the objective of securing attendance of an accused at trial.

The reception of Justice Nazlan’s decision was lukewarm. In some quarters, the move to broaden the scope of judicial power to include the discretion of granting bail was celebrated. However, to some others, the liberality of His Lordship in circumventing the express words of legislation was worrying. This worry was reflected in a subsequent High Court decision pertaining to S.13 SOSMA. In the case of Suresh Kumar v PP, Justice Collin Sequerah disagreed with his learned brethren’s decision. His Lordship put forward a critical question: can the court pronounce on the constitutionality of a legislative provision where there is no foundation or basis laid for the exercise of judicial power? (para 42). While Justice Sequerah agrees with Justice Nazlan that any legislation removing judicial power is inimical to the doctrine of separation of powers, he respectfully differs that S.13 lays no such foundation or substratum for exercise of such power. Therefore, there is no room for judicial discretion in respect of bail granted to persons charged with offences relating to terrorism ascribed under S.13. Commenting on the separation of powers, Justice Sequerah critiqued that the act of a court declaring a law passed by legislature as unconstitutional, despite there being no foundation to exercise a discretion amounting to judicial power at all, is in itself a transgression into the powers of the legislature. By extension, this amounts to a rarer form of violation of the separation of powers – that is a violation by the judiciary. His Lordship further critiqued that the decision in Saminathan could open the floodgates of litigation, and also lead to the demise of S.41B DDA, which akin to S.13, falls under the category of unbailable offences. Saminathan could evolve into a legal avalanche, thus spelling the end for offences falling under the ‘unbailable’ category.

With that, Justice Sequerah ruled that S.13 SOSMA is constitutional, and not ultra vires Article 121(1) or Article 8 of the FC.

C. Democracy

As judicial decisions are the true arbiter of what is basic to our constitutional framework, the author shall only look at cases which explicitly crown the element of democracy with such stature. It is pertinent to first observe the pedantic view of the court in PP v Kok Wah Kuan.[76] Here, the court observed the following:

‘The doctrine is not a provision of the Malaysian Constitution even though no doubt, it had influenced the framers of the Malaysian Constitution, just like democracy. The Constitution provides for elections, which is a democratic process. That does not make democracy a provision of the Constitution in that where any law is undemocratic it is inconsistent with the Constitution and therefore void.’
[Emphasis my own]

This position is worrying, as it casts a shadow of doubt as to whether democracy is truly fundamental to the legal framework of the nation. By affirming the existence of laws that are ‘undemocratic’, it could mean that the Federal Court would turn a blind eye to the passage of laws that would potentially undo Malaysia’s democratic roots. One can only shudder at the thought of Malaysia turning into an autocratic state.

However, this position was rectified (though not conclusively) in Muhammad Hilman Idham v Kerajaan Malaysia.[77]  At page 528 of the case report, the Court of Appeal made an accurate observation that democracy is the bedrock of the Federal Constitution.
Though the notion of constitutional democracy has been coined and frequently used in judgments, no case other than Hilman Idham[78]  affirmed the notion of democracy as a basic feature of the Constitution.

D. Islam 

The interplay between Islam and the Constitution is one of the most unique features of our Constitution. In many cases, the court has noted that Islam has a special position in the Constitution.[79] But, does this special position equate to it being part of the Constitution’s basic structure?
First, we must always bear in mind the decision of the Supreme Court in Che Omar Che Soh v PP when discussing the status of Islam in Malaysia.[80] It is always worth reiterating Salleh Abbas LP’s celebrated judgment:

‘Thus, all laws including administration of Islamic laws had to receive this validity through a secular fiat... Thus, it can be seen that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce, and inheritance only (see MB Hooker, Islamic Law in South-east Asia, 1984).

In our view, it is in this sense of dichotomy that the framers of the Constitution understood the meaning of the word 'Islam' in the context of art 3. If it had been otherwise, there would have been another provision in the Constitution which would have the effect that any law contrary to the injunction of Islam will be void. Far from making such provision, art 162, on the other hand, purposely preserves the continuity of secular law prior to the Constitution, unless such law is contrary to the latter…

…It is the contention of Mr Ramdas Tikamdas that because Islam is the religion of the Federation, the law passed by Parliament must be imbued with Islamic and religious principles and Mr Mura Raju, in addition, submitted that, because Syariah law is the existing law at the time of Merdeka, any law of general application in this country must conform to Syariah law. Needless to say that this submission, in our view, will be contrary to the constitutional and legal history of the Federation and also to the Civil Law Act which provides for the reception of English common law in this country.

A great deal of argument was spent to say that the law must be just, and the Proclamation of Independence was cited as an authority. There is of course no need for us to go further than to say that the standard of justice naturally varies from individual to individual; but the only yardstick that the court will have to accept, apart from our personal feelings, is the law that was legislated by Parliament. We thank counsel for the efforts in making researches into the subject, which enabled them to put the submissions before us. We are particularly impressed in view of the fact they were not Muslims. However, we have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law.’
[Emphasis added]

Of course, Che Omar Che Soh did not endeavor to discuss whether Islam falls out of the basic structure of the Constitution, mostly because such a doctrine had yet to materialise and be incorporated in our local jurisprudence back then. In fact, all Che Omar Che Soh attempted to achieve was to rebuke the argument that our laws must be compliant to Islamic moral principles. Nevertheless, it is still a matter of discussion whether the role of Islam as a feature of the Constitution may be removed by constitutional amendments. The question remains: is Islam a basic feature of our Constitution, rendering it unremovable and thus a permanent notion in our nationhood?

In Menteri Dalam Negeri v Titular Roman Catholic Church, the Court of Appeal through Apandi Ali JCA (as he then was) observed that Article 3(1) of the FC places the religion of Islam on equal footing as other basic structures of the Constitution.[81] This is because the scheme of the Constitution is laid out in such a manner that Article 3(1) is placed third in precedence of articles in Part I,[82] and constitutional provisions stipulating fundamental liberties are only listed in Part II.[83] While that is indeed a curious and peculiar way of examining the importance of a provision, this decision seems to suggest (very subtly) that the religion of Islam is equally important as the provisions recognised as basic features of the Constitution. This would effectively mean that Islam is indeed part of the basic structure.

Fast forward to the case of Indira Gandhi,[84] the Federal Court in its dicta stated:

‘It does not lie for the converted husband to Islam to say that as the Guardianship of Infants Act does not apply to him by virtue of s 1(3), he now has more rights under his personal law and under the Islamic Family Law (Perak) Enactment over his unconverted non-Muslim wife where custody over their children are concerned. Whether that argument is hinged on Islam being the religion of the Federation or that Islamic law is the grundnorm or basic structure of the Constitution, it has no foundation and place in the interpretation of the relevant provisions of the Federal Constitutiton [sic] and the federal laws and state enactments as has been held in a number of cases and supported by legislative and constitutional history.’
[Emphasis added]

The Federal Court also referred to Che Omar Che Soh[85] and Subashini a/p Rajasingam v Saravanan a/l Thangathoray[86] to reject the position that Islamic law is the grundnorm of the Federation based on Article 3(1). As a conclusion on this thorny issue, the Federal Court observed that Article 3(1) shall not undermine the rights given to non-Muslims under federal laws. Therefore, taken as a whole, the decision in Indira Gandhi stipulates that Islam is not a basic feature of the Constitution, thus (temporarily) putting to rest this sensational issue.[87]

E. Royal Assent

The recent Federal Court decision in the case of Datuk Seri Anwar Ibrahim v Government of Malaysia[88] concerns an application for a declaration that the National Security Council Act 2015 (NSCA) is unconstitutional. To support this demand, the plaintiff pushed an interesting question to the court’s attention, that is: ‘whether S.8 of the Constitution (Amendment) Act 1994 violates the basic structure of the Federal Constitution?’.

S.8 of the Constitution (Amendment) Act, stipulates that all Bills which arrive before the YDPA shall be treated as being given Royal Assent upon the lapse of 30 days, from the date it was brought before the YDPA. The lawyers of the plaintiff, which included Dato’ Seri Gopal Sri Ram, argued that the grant of Royal Assent to all bills brought before Parliament is a basic feature of the Constitution. It was also the plaintiff’s contention that the amendment effectively reduces the YDPA’s grant of Royal Assent to a mere rubber stamp.

The majority of the bench chose to dismiss this action on procedural grounds pertaining to S.84 of the Courts of Judicature Act. Besides, this claim was also dismissed due to the understanding that it was brought forth in vacuo. Therefore, the question on the NSCA’s constitutionality, and the question of whether the impugned Constitutional Amendment affected the basic structure of the Constitution were not answered. However, Tengku Maimun CJ and David Wong CJSS (as he then was) dissented and wrote separate judgments. The Chief Justice dissented on the interpretation of S.84, while agreeing with the CJSS’ conclusions on the basic structure argument raised by the plaintiff.

The CJSS’ dissent on the basic structure argument, in essence, disagreed with the plaintiffs that the Constitutional Amendment affected the Constitution’s basic structure. He reasoned that the act of granting Royal Assent is a legislative act instead of an executive one. Then, His Lordship viewed that the impugned Constitutional Amendment made no substantial change to the legislative process as it did not remove the need for Royal Assent, and that the YDPA was never permitted to exercise discretion in such grant of assent. In fact, His Majesty is sanctioned by the Constitution to assent to all bills that appear before him. His Lordship zoomed in on the wordings of Article 66(4A), and highlighted “as if he had assented thereto”. From these words, it is clear to His Lordship that Royal Assent is very much still a part of the legislative process, and that “the law merely does for the YDPA what he himself ought to have done in the first place”. To His Lordship, the insertion of Article 66(4A) not only maintained the YDPA’s involvement in the legislative process, but also specified necessary procedural limits to His Majesty’s act of assent, so as to expedite the passing of laws. His Lordship concluded that it is the will of the people which is central to a constitutional democracy like Malaysia.

This dissenting view of the CJSS is the only in-depth analysis of the constitutional position of Royal Assent in this case. His Lordship’s decision was focused on addressing whether the impugned Constitutional Amendment caused any substantial change to the Constitution, and not whether there was any substantial change to the basic feature of the Constitution. Therefore, in His Lordship’s view, what needed urgent answering is not whether the basic structure was affected, but rather, whether it even changed the general framework of the sacred document. Clearly, if the Constitution is unscratched even at its surface, then surely its foundations are very much intact. That is why there is no explicit mention as to whether the act of Royal Assent is a basic feature. Therefore, there is still no closure as to whether Royal Assent is indeed basic to the Constitution. The answer to this question may be available soon, as the case has been remitted back to the High Court for deliberation. 

V. CONCLUSION
​
The basic structure doctrine, through much trial and turbulence, is now settled and well-rooted within the Malaysian jurisprudence. It is an indication of what constitutes the grundnorm, and the ideals we identify as truly fundamental to the essence of our colourful country. While there are still many basic features that are yet to be discovered, judges must approach this doctrine with caution, as not all constitutional provisions should be given this cardinal seal of approval. Proper analysis must be done to determine whether it is truly essential to our nationhood, and whether it requires further safeguards other than what is already set in stone (or rather, text).

This doctrine’s biggest strength is also its biggest flaw. As this doctrine survives on judicial willpower, many settled principles could be bent and suborned through uninspiring judgments and pedantic views of the law. Hence, the author implores all readers of this article to take it upon themselves to deepen their appreciation of the Constitution and its many pleasant intricacies. Like the guise of a lover, we should embrace it for all its beauty, and for all its flaws. Only through such appreciation will we be able to utilise the basic structure doctrine to its maximum effect.

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Written by Iqbal Harith Liang, a final year law student of University of Malaya.

Edited by Matthew Ooi.

​Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affliated with.

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Footnotes:

​[1] The author would like to note that this article is heavily influenced by the succinct writing of Mr Surendra Ananth, in his article titled: ‘The Basic Structure Doctrine: Its Inception and Application in Malaysia’ [2016] 1 MLJ clxvi. In this article, the author seeks to expand and update upon Mr Surendra Ananth’s written scholarship, which is already comprehensive and detailed in its own right.

[2] The author apologises for the sizable length of this article. It is the most summarised version he could muster.

[3] [2017] 3 MLJ 561.

[4] [2018] 1 MLJ 545.

[5] 1965 AIR 845.

[6] Constitution of India, Art 368.

[7] See footnote 6.

[8] See footnote 6.

[9] See footnote 6, Art 368.

[10] See footnote 6.

[11] 1967 AIR 1643.

[12] See footnote 6, Art 368.

[13] See footnote 11.

[14] Hishamudin Yunus. (2018). The Basic Structure Doctrine: Its Inception and Application in Malaysia. Legal Herald, 1. [2016] 1 MLJ clxvi.

[15] ‎(1973) 4 SCC 225.

[16] See footnote 11.

[17] See footnote 11.

[18] See footnote 5.

[19] Indira Nehru Gandhi (1975) AIR 2299; Minerva Mills v Union of India AIR (1980) 1789; Union of India v Sankal Chad Himmatlal Sheth (1977) AIR 2328; Kumar Padma Prasad v Union of India (1992) AIR 1213; Supreme Court Advocates-on-Record Association v Union of India AIR (1994) 268; Chandra Kumar v Union of India AIR (1997) 1125.

[20] (1963) MLJ 355.

[21] [1977] 2 MLJ 187; Article 5(4) was amended by Act A345/76 which stated that the provision has no application to any arrest or detention of persons under restricted residence laws.

[22] Federal Constitution (Malaysia) Art 5(4).

[23] [1980] 1 MLJ 70.

[24] [1982] 2 MLJ 120.

[25] [2010] 3 CLJ 507.

[26] See footnote 22, Part II.

[27] See footnote 15.

[28] See footnote 26.

[29] See footnote 22.

[30] See footnote 26.

[31] [2011] 6 MLJ 507.

[32] University and University Colleges Act 1971 (Act 30) (Malaysia) S.15(5).

[33] See footnote 22, Art 10(1)(a).

[34] See footnote 22, Art 10, Clause 2(a).

[35] [2010] 2 MLJ 377.

[36] See footnote 26.

[37] [2019] 4 MLJ 1.

[38] AIR 1978 SC 59.

[39] [2019] MLJU 915.

[40] See footnote 26.

[41] [1977] 2 MLJ 187.

[42] See footnote 46, 189.

[43] Report of the Federation of Malaya Constitutional Commission 1957, London, Colonial No. 330, at p 57 (Reid Commission Report).

[44] Constitutional Proposals for the Federation of Malaya, presented by the Secretary of State to Parliament by Command of Her Majesty June 1957, London, at p 13 (‘White Paper’).

[45] [1982] 2 MLJ 243.

[46] See footnote 51, 253.

[47] Haji Salleh Bin Jafaruddin v Datuk Celestine Ujang & Ors [1986] 2 MLJ 412 (SC), at p 415; Lim Kit Siang v Dato Seri Dr Mahathir Mohamad [1987] 1 MLJ 383; Chee Pok Choy v Scotch Leasing [2001] 4 MLJ 346; Palm Oil Research and Development Board Malaysia & Anor v Premium Vegetable Oils Sdn Bhd & Another Appeal [2005] 3 MLJ 97 (FC), at p 125; Chong Chung Moi @ Christine Choong v The Government of the State of Sabah [2007] 5 MLJ 441.

[48] See footnote 22, Art 121(1).

[49] [2008] 1 MLJ 1.

[50] See footnote 55.

[51] [2013] 6 MLJ 660.

[52] Peaceful Assembly Act 2012 (Act 736) S.27.

[53] See footnote 22.

[54] See footnote 55. 

[55] [2014] 6 MLJ 812.

[56] See footnote 22.

[57] See footnote 55.

[58] See footnote 3.

[59] Land Acquisition Act 1960 (Act 486) (Malaysia) S.40D(3), S.49(1).

[60] See footnote 55.

[61] See footnote 22, Art 4(1).

[62] See footnote 22.

[63] [2018] 3 CLJ 145.

[64] See footnote 22.

[65] Alma Nudo Atenza v Public Prosecutor [2019] 4 MLJ 1.

[66] Dangerous Drugs Act 1952 (Act 234)

[67] Jimmy Seah Thian Heng v PP [2019] 7 MLJ 308; Kerajaan Malaysia v Shimizu Corporation [2018] MLJU 169; Alma Nudo Atenza v Public Prosecutor [2019] 4 MLJ 1; Dato’ Sri Mohd Najib bin Hj Abdul Razak v Public Prosecutor [2019] 4 MLJ 74. 

[68] Central Bank of Malaysia Act 2009 (Act 701) (Malaysia) S.56, S.57.
S.56 prescribes for the reference of any Shariah questions related to Islamic finance to the SAC, while  S.57 states the binding effect of rulings made by the SAC on such referred matters.

[69] [2019] 3 MLJ 561.

[70] See footnote 75.

[71] See footnote 76.

[72] Hamdan, N. (2019, Nov 29). High Court allows Gadek rep Saminathan to apply for bail in LTTE case Retrieved from: https://www.thestar.com.my/news/nation/2019/11/29/high-court-allows-gadek-rep-saminathan-to-apply-for-bail-in-ltte-case. Site accessed on 29 Dec 2019.

[73] Security Offences (Special Measures) Act 2012 (Act 747) (Malaysia) S.13.

[74] Chinnakarappan v Public Prosecutor [1962] MLJ 234; Jimmy Seah Thian Heng v Public Prosecutor [2019] 7 MLJ 308; Tamil Selven a/l Lechumenan v Pendakwa Raya [2019] 1 LNS 1542; Chow Lin Choy v Pendakwa Raya [2010] 9 MLJ 813.

[75] Public Prosecutor v Dato’ Yap Peng [1987] 2 MLJ 311.

[76] See footnote 55.

[77] See footnote 32.

[78] See footnote 32.

[79] Mohamed Habibullah v Faridah bte Dato Talib [1992] 2 MLJ 793; Lina Joy v Majlis Agama Islam Wilayah [2004]2 MLJ 119; Menteri Dalam Negeri v Titular Roman Catholic Archbishop of Kuala Lumpur [2013] 6 MLJ 468; Jamilah Jan Vasanthegokelam v Ketua Pengarah Jabatan Pendaftaran Negara [2015] MLJU 636; and Mohd Jefry a/l Mohd Baser v Ketua Pengarah Jabatan Pendaftaran Negara [2015] MLJU 903.

[80] [1988] 2 MLJ 55.

[81] [2013] 6 MLJ 468.

[82] See footnote 22, Part I.

[83] See footnote 22, Part II.

[84] See footnote 71. 

[85] See footnote 88.
​
[86] [2008] 2 MLJ 147.

[87] See footnote 71.

[88] Datuk Seri Anwar Ibrahim v Government of Malaysia [2020] 2 MLJU 120.