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] |
No
The following are the present Federal Court judges in the “No” camp who have either directly or indirectly indicated their rejection of the Basic Structure Doctrine in Malaysia:
| Judge (arranged alphabetically) | Evidence of position |
| YA Dato’ Abdul Rahman bin Sebli | “… There is nothing wrong to describe the fundamental features of the Federal Constitution as its “basic structures”. What poses a problem in the context of a written constitution is the application of the so-called “doctrine” of basic structure. Under the doctrine, any law passed by Parliament that “offends” the Federal Constitution is void.”[15]
“The difficulty with the doctrine is that “basic structure” is not confined to the written terms of the Federal Constitution. It has been extrapolated to include a doctrine of law, in this case the doctrine of separation of powers. This leads to a situation where a law that is duly passed by Parliament is rendered void for offending the doctrine of separation of powers even where it is not inconsistent with the express terms of the Federal Constitution. Herein lies the paradox.”[16] |
| YAA Dato’ Abang Iskandar bin Abang Hashim | 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, YAA Dato’ Abang Iskandar bin Abang Hashim agreed with the majority judgment which inter alia held that the Basic Structure Doctrine was inapplicable in Malaysia.[17]
Note: YAA Dato’ Abang Iskandar bin Abang Hashim was previously on the Federal Court panel in Alma Nudo Atenza v Public Prosecutor and another appeal [2019] 4 MLJ 1 which unanimously affirmed the Basic Structure Doctrine.[18] |
| YA Dato’ Sri Hasnah binti Dato’ Mohammed Hashim | “In light of the clear and purposeful intention of the architects of our Constitution as well as the judgments of this Court in Loh Kooi Choon (supra), Phang Chin Hock (supra) and more recently in Letitia Bosman (supra), Maria Chin (supra) and Rovin Joty (supra), the inevitable conclusion would be that the basic structure doctrine has no place in Malaysia. It therefore follows that the majority decisions in the aforementioned cases affirmed the true position of the law and thus binding.”[19] |
| YA Dato’ Mary Lim Thiam Suan | In Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [Federal Court Civil Appeal No. 01(f)-5-03/2019(W)], YA Dato’ Mary Lim Thiam Suan agreed with the majority judgment which inter alia held that the Basic Structure Doctrine was inapplicable in Malaysia.[20] |
| YAA Tan Sri Rohana binti Yusuf | In Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [Federal Court Civil Appeal No. 01(f)-5-03/2019(W)], YAA Tan Sri Rohana binti Yusuf agreed with the majority judgment which inter alia held that the Basic Structure Doctrine was inapplicable in Malaysia.[21] |
| YA Dato’ Zabariah binti Mohd. Yusof | “To hold to the view that what constitutes basic structure in our FC cannot be amended, would go against the clear and express provision of our very own Article 159 FC which allow for amendments according to the required mandatory pre-conditions”[22]
“Putting an implied limitation on the powers of Parliament as postulated by the basic structure concept, clearly contravenes the very provision of the FC as Article 4(1), which states that the FC is supreme and that only Parliament have the power to make constitutional amendments even if they are inconsistent with the FC. Parliament may amend the FC as it deems fit, so long as they comply with the necessary requirements precedent and subsequent regarding the manner and form prescribed by the FC as stated in Article 159”[23] “In the context of the challenge in the present appeal, the determination of the constitutionality of the impugned provision has to be based on what is provided in the FC. It cannot be premised on some foreign basic structure concept which is amorphous where uncertainty will ensue in the application of our law. Historically, and textually, there is nothing in our Constitution to indicate which provision constitutes basic structure and hence, unamendable or to remain as eternity clause.”[24] |
| YA Puan Sri Dato’ Zaleha binti Yusof | “At the same time I would like to say the following. Although I do not deny that we can definitely refer to foreign doctrine or jurisprudence when relevant; those foreign doctrines or jurisprudence are not binding upon us and we need to be cautious in applying them into our very own law, so as not to contradict with the express provision of our law especially our written Constitution. The peculiar circumstances of the country from which the law or its doctrine were to be adopted must also be one of the considerations; for as a law is always enacted to cater for the local needs of each country.”[25] |
Unclear
|
Judge (arranged alphabetically) |
Evidence of position |
| YA Datuk Seri Haji Mohd. Zawawi bin Salleh | In Peguam Negara Malaysia v Chin Chee Kow (as secretary of Persatuan Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan) and another appeal [2019] 3 MLJ 443, YA Datuk Seri Haji Mohd. Zawawi bin Salleh agreed with the then Chief Justice’s judgment which had mentioned the Basic Structure Doctrine in passing.[26]
Note: In subsequent decisions which involved mention/discussion of the Basic Structure Doctrine in the dissenting judgments,[27] YA Datuk Seri Haji Mohd. Zawawi bin Salleh agreed with the majority judgments which were non-committal on the Basic Structure Doctrine.[28] |
At the present moment, it appears that six (6) judges are in the “Yes camp,” seven (7) judges are in the “No” camp, and one (1) judge’s position is unclear.
Although judges are not bound to hold to the same opinions they previously held, the above tables give a rough indication of the divide amongst the present Federal Court judges on the highly controversial issue of the Basic Structure Doctrine.
[1] “The Rise and Fall of the Basic Structure Doctrine in Malaysia,” Legalfoxes Law Times, Vol. II, Issue III
[2] [Federal Court Civil Appeal No. 01(f)-5-03/2019(W)]
[3] [Federal Court Criminal Appeal No. 05(HC)-304-12/2019(B)]
[4] [Federal Court Appeal No. 05(HC)-153-11/2020(W)]
[5] JRI Resources Sdn Bhd v Kuwait Finance House (M) Bhd (President of Association of Islamic Banking Institutions Malaysia & Anor, interveners) [2019] 3 MLJ 561, at paragraph 154
[6] Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 1 MLJ 750, at paragraph 238
[7] 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, judgment of Nallini Pathmanathan (dissenting), at paragraph 117
[8] 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, judgment of Nallini Pathmanathan (dissenting), at paragraph 122
[9] 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, judgment of Nallini Pathmanathan (dissenting), at paragraph 151
[10] Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan & Ors [Federal Court Appeal No. 05(HC)-153-11/2020(W)] & other appeals, judgment of Vernon Ong FCJ, at paragraph 6
[11] 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, judgment of Zabariah binti Mohd Yusof FCJ, at paragraph 257
[12] Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan & Ors [Federal Court Appeal No. 05(HC)-153-11/2020(W)] & other appeals, judgment of Rhodzariah binti Bujang FCJ, at paragraph 2
[13] Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan & Ors [Federal Court Appeal No. 05(HC)-153-11/2020(W)] & other appeals, judgment of Tengku Maimun binti Tuan Mat CJ, at paragraph 95
[14] Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [Federal Court Civil Appeal No. 01(f)-5-03/2019(W)], judgment of Tengku Maimun binti Tuan Mat CJ (dissenting), at paragraph 236
[15] Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [Federal Court Civil Appeal No. 01(f)-5-03/2019(W)], judgment of Abdul Rahman bin Sebli FCJ, at paragraph 130
[16] Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [Federal Court Civil Appeal No. 01(f)-5-03/2019(W)], judgment of Abdul Rahman bin Sebli FCJ, at paragraph 131
[17] 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, judgment of Zabariah binti Mohd Yusof FCJ, at paragraph 257
[18] Alma Nudo Atenza v Public Prosecutor and another appeal [2019] 4 MLJ 1, at p. 1
[19] Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan & Ors [Federal Court Appeal No. 05(HC)-153-11/2020(W)] & other appeals, judgment of Hasnah binti Dato’ Mohammed Hashim FCJ, at paragraph 60
[20] Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [Federal Court Civil Appeal No. 01(f)-5-03/2019(W)], judgment of Abdul Rahman bin Sebli FCJ, at paragraph 377
[21] Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [Federal Court Civil Appeal No. 01(f)-5-03/2019(W)], judgment of Abdul Rahman bin Sebli FCJ, at paragraph 377
[22] 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, judgment of Zabariah binti Mohd Yusof FCJ, at paragraph 191
[23] 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, judgment of Zabariah binti Mohd Yusof FCJ, at paragraph 192
[24] 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, judgment of Zabariah binti Mohd Yusof FCJ, at paragraph 193
[25] Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan & Ors [Federal Court Appeal No. 05(HC)-153-11/2020(W)] & other appeals, judgment of Zaleha binti Yusof FCJ, at paragraph 4
[26] Peguam Negara Malaysia v Chin Chee Kow (as secretary of Persatuan Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan) and another appeal [2019] 3 MLJ 443, page 443 read together with page 469
[27] E.g. Datuk Seri Anwar Ibrahim v Government of Malaysia & Anor [2020] 4 MLJ 133, at paragraphs 35 and 110; Jabatan Pendaftaran Negara & Ors v A Child & Ors (Majlis Agama Islam Negeri Johor, intervener) [2020] 2 MLJ 277, at paragraph 213
[28] E.g. Datuk Seri Anwar Ibrahim v Government of Malaysia & Anor [2020] 4 MLJ 133, at paragraph 225; Jabatan Pendaftaran Negara & Ors v A Child & Ors (Majlis Agama Islam Negeri Johor, intervener) [2020] 2 MLJ 277, at paragraph 91
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