Division in the Federal Court on the Basic Structure Doctrine

The Basic Structure Doctrine, after years of development in Malaysian jurisprudence,[1] has been under siege recently.

The trend of  rejection of the Basic Structure Doctrine began in Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor,[2] and continued in Rovin Joty a/l Kodeeswaran v Lembaga Pencegahan Jenayah & 4 Ors[3] and other appeals and cropped up again in Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan & Ors[4] & other appeals.

What is evident is that the Federal Court is divided into two distinct camps, one which favours the acceptance and application of the Basic Structure Doctrine in Malaysia and another which rejects the same.

Yes

The following are the present Federal Court judges in the “Yes” camp who have either directly or indirectly indicated their support for the application of the Basic Structure Doctrine in Malaysia:

Judge (arranged alphabetically) Evidence of position
YAA Tan Sri Dato’ Sri Azahar bin Mohamed “It is also worth emphasising that our Federal Constitution is grounded on the Westminster system of parliamentary government under which the sovereign power of the State is distributed among three branches of government, viz, Legislature, the Executive and the Judiciary (see Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187). Legislature, the Executive and the Judiciary are all co-equal branches of government. This distribution of the governance of the State to the three branches reflects the doctrine of the separation of powers. At the core of the doctrine is the notion that each branch of the government must be separate and independent from each other. As decided by this court in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561, this important doctrine is critical as it is sacrosanct in our constitutional framework and is part of the basic structure of our Federal Constitution.”[5]
YA Datuk Harmindar Singh Dhaliwal In Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 1 MLJ 750, YA Datuk Harmindar Singh Dhaliwal agreed with YAA Tun Tengku Maimun binti Tuan Mat’s dissenting judgment which was premised on the Basic Structure Doctrine.[6]
 YA Datuk Nallini Pathmanathan “To read Art 121 FC in any other manner would be to do violence to the basic and foundational structure of the FC. In order to retain its role under Art 4(1) FC, Art 121(1) FC cannot be given the literal reading adopted in the majority decision in Kok Wah Kuan and since overruled in the trilogy of cases of Semenyih Jaya, Indira Gandhi and Alma Nudo.”[7]

“… The enforcement of rights by way of judicial review does comprise a part of the basic structure of the FC under Art 4(1) FC”[8]

“… This is consonant with the unanimous decisions of this court in Semenyih Jaya and Indira Gandhi which both held that the superior courts enjoy such a power of review as a basic feature of the FC.”[9]

YA Datuk Ong Lam Kiat Vernon “… In this connection, I am inclined to agree with the following views of the learned Chief Justice expressed in her written judgment:

i. That the power of constitutional review is inherent in the Courts by constitutional design. The drafters of the FC had in mind certain basic principles which ought to form the bedrock of this country and that under art 159(1), Parliament may amend certain provisions of it without amending the central tenets of the FC. This is a safeguard as couched in the wide language of the first limb of art 4(1) to cast away any attempt to cause to FC to implode on itself by abuse of the legislative process.”[10]

Note: In Rovin Joty a/l Kodeeswaran v Lembaga Pencegahan Jenayah & 4 Ors [Federal Court Criminal Appeal No. 05(HC)-304-12/2019(B)] and other appeals, YA Datuk Ong Lam Kiat Vernon agreed with the majority judgment which inter alia held that the Basic Structure Doctrine was inapplicable in Malaysia.[11]

 YA Dato’ Rhodzariah binti Bujang “I respectfully concur with and adopt wholeheartedly the reasons given by the learned Chief Justice and the conclusion which Her Ladyship has arrived at”[12]
YAA Tun Tengku Maimun binti Tuan Mat “In other words, we need not look elsewhere to know that basic structure or basic concept, whatever term one may want to use, is engraved within the very fabric of our Article 4(1).”[13]

“Although judicial precedent plays a lesser role in construing the provisions of the FC, I see no reason to depart from the doctrine of stare decisis, particularly given the parties’ common ground that Semenyih Jaya and Indira Gandhi correctly held that judicial power is a basic structure of the FC.”[14]

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Minimum Remuneration for Pupils

Disclaimer: The following was written before the Malaysian Bar passed a resolution that “it accepts in principle that pupils ought to be protected with minimum remuneration.”

The Current Position

As it stands, pupils in Malaysia are only allowed to receive a remuneration from their pupil master. This is provided for in Section 12(3) of the Legal Profession Act 1976 (“LPA 1976”) which states:

“(3) No qualified person shall, without the special leave in writing of the Bar Council, hold any office or engage in any employment of any kind, whether full-time or otherwise, during his period of pupillage, but nothing in this subsection shall preclude a pupil from receiving remuneration from his master.” (emphasis mine)

Two things need to be noted at this point:

(i) The LPA 1976 is silent on the definition of “remuneration” thereby leaving it to the discretion of a master to determine how much (if any at all) a pupil should receive.

(ii) From a plain reading of the provision, it would appear that masters are not

statutorily obligated to remunerate their pupils. Though by convention pupils are remunerated, masters appear to not be required to remunerate their pupils.

Chapter 10 of the Rules and Rulings of the Bar Council, which touches on pupillage, is silent on this matter.

Item (i) has, unsurprisingly, resulted in “wage” inequality. In 2014, a survey by eLawyer revealed that some pupils in certain cities in Malaysia received as low as RM500 a month.[1] Meanwhile, in the Klang Valley, pupils were reportedly receiving around RM2,000 to RM2,800 a month.

More recent data reveals that this wide spectrum still persists – with some pupils in the Klang Valley receiving up to RM5,000 a month[2] while some, also in the Klang Valley, only receive RM400-900 a month.[3]

As at the time of writing, the minimum wage for selected locations in Malaysia is RM1,200.[4] However, this figure only applies to employees who fall under the scope of the Employment Act 1955, the Sabah Labour Ordinance, or the Sarawak Labour Ordinance.[5]

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Asylum Access Malaysia & Amnesty International Malaysia’s Judicial Review Application

Asylum Access Berhad (Asylum Access Malaysia) and Aimal Sdn Bhd (Amnesty International Malaysia) [collectively referred to as “the Applicants“] recently filed a judicial review application against the Director General of Immigration, the Home Minister, and the Government of Malaysia[1] over the planned repatriation of 1,200 Myanmar nationals (“Impugned Decision“).[2]

The Applicants successfully obtained an interim stay of the repatriation on 23rd February 2021[3] but the success was shortlived as, on the same day, 1,086 Myanmar nationals (out of the 1,200) were nevertheless repatriated by the Immigration Department in collaboration with the Royal Malaysian Navy, National Task Force, and the Myanmar Embassy.[4]

The Immigration Department’s actions received widespread criticism in light of the interim stay granted by the High Court.[5] The Immigration Department was legally represented by the Attorney General’s Chambers when the interim stay was granted and had full knowledge of the same.[6]

The interim stay has since been extended until 9th March 2021, the date on which Yang Arif Dato’ Sri Mariana binti Haji Yahya will deliver her decision on whether the Applicants should be granted leave to proceed with their judicial review application.[7]

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Where the Court of Appeal in Westech Went Wrong

Where the Court of Appeal in Westech Went Wrong

The Court of Appeal in Westech Sdn Bhd (in voluntary liquidation) v Thong Weng Lock (as surviving partner of Thong Kee Trading Co) [2014] 3 MLJ 427 [“Westech”] was confronted with the question of whether the leave of Court is required for a party to commence/proceed with any action/proceeding against a company after the commencement of a members voluntary winding up.[1]

The Court of Appeal answered the question in the affirmative and its decision was premised upon the following:

“[34] In our view the language in s 263(2) of the Companies Act 1965 is patently clear that no action or proceeding is to be commenced or proceeded with against a company after the commencement of a winding up is made except with leave of the court. The section makes no distinction between a voluntary winding up by members of the company or winding up by a creditor on the ground of the company’s insolvency.”[2] (underline mine)

Section 263(2) of the Companies Act 1965 (“CA 1965”) provides that:

Property and proceedings

263 (2) After the commencement of the winding up no action or proceeding shall be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes.”

At first glance, the Court of Appeal in Westech appears to have gotten it right. After all, as Abdul Aziz Abd Rahim JCA points out, Section 263(2) of the CA 1965 does not make any distinction between members’ voluntary winding up and creditors’ voluntary winding up.

Even the marginal note[3] for Section 263 merely states “Property and proceedings,” which appears to leave room for the section to be applicable to both members’ voluntary winding up and creditors’ voluntary winding up.

However, the Court of Appeal in Westech went wrong when it failed to take into account the relevant sub-divisions and relevant sub-section of the CA 1965.

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Is the suspension of Parliament during an Emergency, unconstitutional?

Mr. Hassan bin Abdul Karim, the Member of Parliament for the Pasir Gudang parliamentary constituency, has argued that the suspension of Parliament “… is illegal and unconstitutional. It must be challenged and oppose.”[1]

With all due respect to my learned friend, his contention is misplaced.

Article 150(2B) of the Federal Constitution provides as follows:

“If at any time while a Proclamation of Emergency is in operation, except when both Houses of Parliament are sitting concurrently, the Yang di-Pertuan Agong is satisfied that certain circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as circumstances appear to him to require.” (emphasis mine)

At the moment, neither the House of Representatives (also known as the Dewan Rakyat) nor the Senate (also known as the Dewan Negara) are sitting.

The former’s previous sitting ended on 17th December 2020[2] while the latter’s previous sitting ended on 30th December 2020.[3]

The latter’s next sitting was scheduled to be held on 8th March 2021 – 8th April 2021[4] and the former’s next sitting was scheduled to be held for one day on 8th March 2021 before continuing on 14th April 2021 – 28th April 2021.[5]

In light of the above, as at the time of writing, it can be concluded that both Houses of Parliament are not sitting concurrently.

Therefore, in view of the Proclamation of Emergency which was published in the Federal Gazette on 12th January 2021,[6] pursuant to Article 150(2B) above, the Yang di-Pertuan Agong (“YDPA“) is constitutionally empowered to “promulgate such ordinances as circumstances appear to him to require.”

This would include an ordinance which provides for the suspension of Parliament, which was in fact done in Clause 14 of the Emergency (Essential Powers) Ordinance 2021.

Article 150(6) of the Federal Constitution provides that, as a general rule:

“… no provision of any ordinance promulgated under this Article, and no provision of any Act of Parliament which is passed while a Proclamation of Emergency is in force and which declares that the law appears to Parliament to be required by reason of the emergency, shall be invalid on the ground of inconsistency with any provision of this Constitution.” (emphasis mine)

This means that constitutionally, the YDPA can promulgate ordinances which are inconsistent with other provisions in the Federal Constitution. If the YDPA does so, such ordinances will not be invalid.

As such, even if Mr. Hassan bin Abdul Karim were to mount a legal challenge against Clause 14 of the Emergency (Essential Powers) Ordinance 2021, it appears unlikely that the Courts would declare the Clause invalid/unconstitutional.

The Federal Constitution goes even further, in Article 150(8)(b)(iii), to provide that “no court shall have jurisdiction to entertain or determine any application, question or proceeding, in whatever form, on any ground, regarding the validity of … any ordinance promulgated under Clause (2B).”

The Federal Constitution expressly ousts the jurisdiction of the Courts to determine the validity of any ordinance promulgated under Clause (2B), which would include the Emergency (Essential Powers) Ordinance 2021.

On the face of it, Mr. Hassan bin Abdul Karim’s intended legal challenge will be destined to fail unless the Courts first strike down Article 150(8)(b)(iii) of the Federal Constitution (for example, for being incompatible with the basic structure of the Federal Constitution).

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