Division in the Federal Court on the Basic Structure Doctrine
The Basic Structure Doctrine, after years of development in Malaysian jurisprudence, has been under siege recently.
The trend of rejection of the Basic Structure Doctrine began in Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor, and continued in Rovin Joty a/l Kodeeswaran v Lembaga Pencegahan Jenayah & 4 Ors and other appeals and cropped up again in Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan & Ors & 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.
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  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  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.”|
|YA Datuk Harmindar Singh Dhaliwal||In Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor  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.|
|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.”
“… 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”
“… 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.”
|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.”
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.
|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”|
|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).”
“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.”