Basic Structure Doctrine in Malaysia: Judiciary’s Cautious Engagement

Introduction

The Basic Structure Doctrine (BSD) can be defined as a judge-made constitutional limitation on Parliament’s amending power. In Malaysia, Article 159 of the Constitution sets out the procedure for constitutional amendments but does not expressly limit the matters that Parliament may amend. Even where the required procedure has been followed, the issue remains whether certain fundamental constitutional principles should be protected from amendment. In this regard, the Basic Structure Doctrine fills the gap by allowing the courts to recognise substantive limits on Parliament’s amending power. Despite the significance of this doctrine, it is submitted that BSD in Malaysia remains uncertain and only partially developed.

No Formal Recognition 

In the evolution of BSD in Malaysia, the courts’ attitude towards this doctrine has been cautious and has shifted over time. At first glance, BSD in Malaysia may be perceived as doctrinally uncertain due to its inconsistent judicial treatment. Early cases, such as Loh Kooi Choon v Government of Malaysia rejected the doctrine.[1] The court held that compliance with the procedures stipulated in Article 159 of the Federal Constitution (FC) was sufficient to ensure the validity of the amendment of the Constitution. The court avoided ruling on whether Parliament’s power of amendment was implicitly or substantially limited.

However, the BSD was later accepted in landmark decisions in the case of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat.[2] The Federal Court expressly adopted a form of the BSD in reviewing the constitutionality of a statute compelling judges to adopt the opinion of lay assessors in determining compensation for land acquisitions. Also, in 2020, scholars such as Jaclyn Neo and Yvonne Tew suggested a judicial embrace of the doctrine and its global trend toward constitutional unamendability.[3]

Later, while the Federal Court’s decision in Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor did not amount to a doctrinal rejection of the BSD, it shows the unstable status of BSD in Malaysia.[4]

Resurgence happened in Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah & Ors,[5] in which the court unanimously upheld the continued applicability of the BSD and Ketheeswaran Kanagaratnam & Anor v PP,[6] where the court unequivocally endorsed the dissenting judgments in Maria Chin.[7]

In short, the shift in judicial approach raises further uncertainty about the future position of BSD in Malaysia, reflecting a judiciary that vacillates between reinforcing and undermining constitutional fundamentals.[8] The courts tend to show a cautious approach as the BSD has not been fully adopted. Such a constitutional principle is only cautiously cited in certain cases and has not been forcefully and comprehensively implemented as in India. In the Malaysian context, it can be said that the courts’ approach of the BSD poses a serious constitutional risk to the extent that it undermines constitutionalism on the grounds of uncertainty and unpredictability.

Partially Developed and Ambiguous Doctrine

There are some critical issues that remain unsettled due to the cautious attitude of the Malaysian judiciary towards the BSD. There is no absolute answer on whether the BSD is entrenched in Malaysia’s legal framework. Such issues can be deemed as a factor that weakens constitutionalism if they are not addressed adequately.

(i) First Issue: There is no single and fixed list of Malaysia’s BSD elements

Some Malaysian cases have “listed” elements of the BSD. For example, courts in Semenyih Jaya mentioned judicial independence and separation of powers, while the court in recent Dhinesh a/l Tanaphll has declared, inter alia, judicial review as feature of basic structure.

However, this does not mean that Malaysia has established a unified, authoritative and normative basic structure list. Judicial approach has been on a case-by-case basis to define what is included in the doctrine of basic structure in Malaysia.[9]  There is no exhaustive or exclusive definition of basic structure given by the judiciary. The cautious engagement by judiciary creates uncertainty as legislators cannot predict which amendments will be upheld or struck down. This doctrine due to its undefined nature continues to be unclear in its perception and application. This vagueness may invite arbitrary application, diminishing the principle of constitutionalism.

(ii) Second Issue: There is no established BSD approaches in Malaysian courts

While Indian courts have previously articulated several analytical approaches for determining whether a constitutional amendment violates the BSD, such an approach remains largely absent in the Malaysian context.  Malaysian courts have yet to develop a consistent approach for assessing violations of the doctrine like India.[10] Instead, courts mainly focused on identifying certain constitutional features as part of the basic structure without clearly explaining how those conclusions are reached.

As a result, it can be observed that the engagement of this principle by judicial branch remains ad hoc and case-specific, rather than based on precedent. The absence of analytical approaches weakens legal certainty and predictability, which in turn fails to effectively safeguard constitutionalism.

(iii) Third Issue: Uncertain Legal Basis of BSD in Malaysia

BSD is claimed to be entailed by Article 4 of the FC. However, the doctrine was introduced in Sivarasa Rasiah v Badan Peguam Malaysia & Anor, in which the judge cited the precedent of Kesavananda Bharati v State of Kerala but did not base it on Article 4(1) of the FC.[11] Thus, it is argued that this is a judge-led reform rather than an organic doctrinal development.

Opponents of the BSD contend that Article 4(1) of the FC does not mention the amendment of FC. The argument that the court can reject an amendment that fully complies with the procedures of Article 159 of the FC lacks a textual basis. This can be seen in Opinion: The myth of the Basic Structure Doctrine in Malaysia, where Tan Sri Mohamed Apandi Ali argues that the BSD has no legitimate foundation in Malaysia’s FC.[12]  The BSD is not indigenous and not textually supported.

In Phang Chin Hock v Public Prosecutor, the judge pointed out that there is no need to rule on whether Parliament can undermine the basic structure, because the questioned amendments do not do so. There was no implicit endorsement of the BSD in this case, nor was there any “oblique acknowledgement” of basic features in the FC.[13]

Nevertheless, recent cases show a distinct attitude. In Dhinesh case, the Federal Court unanimously affirmed that the fundamental structural principle is derived from Article 4(1) of the FC, thereby refuting the argument that the principle is an external or imposed concept unrelated to the constitutional framework of Malaysia.[14] However, despite such affirmation, this only amounts to recognising without consolidating, leaving the status of the BSD unresolved in practice, since the court has neither clarified a clear legal source beyond the general reference to Article 4(1) of the FC nor clarify the relationship of BSD with Article 159.

Conclusion

As said by Tun Tengku Maimun: “Basic features of the Constitution cannot be altered or taken away even by way of a constitutional amendment”. The doctrine of basic structure serves as a crucial tool in safeguarding the fundamental principles of the Constitution from abuse of Parliament’s amending power. BSD allows the courts to ensure that constitutional amendments do not destroy the Constitution’s essential structure. However, its position in Malaysia remains uncertain because it has been applied cautiously and inconsistently. There is also no fixed list of basic features, clear judicial test and fully settled legal basis. Therefore, greater judicial clarity is needed to strengthen constitutional supremacy and legal certainty in Malaysia.

Reference(S):

Legislation

Federal Constitution, Malaysia.

Case Laws

Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] 3 MLJ 356.

Kanagaratnam & Anor v PP [2024] 2 MLRA.

Kesavananda Bharati v State of Kerala [1972] SCC 364.

Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187.

Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 2 CLJ 579.

Phang Chin Hock v Public Prosecutor [1980] 1 MLJ 213.

Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat [2017] 5 CLJ 526.

Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 3 CLJ 507.

Secondary Sources

Benjamin Joshua O, ‘The Basic Structure in Malaysia: Less than Meets the Eye’ in Kevin YL Tan and HP Lee (eds), Smu.edu.sg (The basic structure doctrine in Malaysia: Themes and perspectives 2025) <https://ink.library.smu.edu.sg/sol_research/4657/> accessed 7 July 2026

Hamid N, Nawang I and Bidin N, ‘The Doctrine of Basic Structure of the Malaysian Constitution: A Study of Framework’ (2017) 25 Pertanika J. Soc. Sci. & Hum 163 <http://www.pertanika.upm.edu.my/resources/files/Pertanika%20PAPERS/JSSH%20Vol.%2025%20(S)%20Oct.%202017/JSSH(S)-0546-2017.pdf> accessed 7 July 2026

I•CONnect and I•CONnect, ‘The Contemporary State of the Basic Structure Doctrine in Malaysia’ (www.iconnectblog.com2 December 2025) <https://www.iconnectblog.com/the-contemporary-state-of-the-basic-structure-doctrine-in-malaysia/> accessed 7 July 2026

Rehan Abeyratne and Bui Ngoc Son, ‘Unconstitutional Constitutional Amendments as Constitutional Politics’ (25 September 2023) <https://linkx.ee/Yullt> accessed 7 July 2026

Tan Sri Mohamed Apandi Ali, ‘Opinion: The Myth of the Basic Structure Doctrine in Malaysia’ (The Edge Malaysia8 May 2025) <https://theedgemalaysia.com/node/754555> accessed 7 July 2026

Ramalingam S, Unravelling the Basic Structure Doctrine in Malaysia (Journal of Malaysian and Comparative Law 2024) <https://ejournal.um.edu.my/index.php/JMCL/article/view/65047/18959/> accessed 7 July 2026

[1] [1977] 2 MLJ 187.

[2] [2017] 5 CLJ 526.

[3] Ong Benjamin Joshua , ‘The Basic Structure in Malaysia: Less than Meets the Eye’ in Kevin YL Tan and HP Lee (eds), Smu.edu.sg (The basic structure doctrine in Malaysia: Themes and perspectives 2025) <https://ink.library.smu.edu.sg/sol_research/4657/> accessed 7 July 2026.

[4] [2021] 2 CLJ 579.

[5] [2022] 3 MLJ 356.

[6] [2024] 2 MLRA.

[7] I•CONnect and I•CONnect, ‘The Contemporary State of the Basic Structure Doctrine in Malaysia’ (www.iconnectblog.com2 December 2025) <https://www.iconnectblog.com/the-contemporary-state-of-the-basic-structure-doctrine-in-malaysia/> accessed 7 July 2026.

[8] Rehan Abeyratne and Bui Ngoc Son, ‘Unconstitutional Constitutional Amendments as Constitutional Politics’ (25 September 2023) < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4558300> accessed 7 July 2026.

[9] N Hamid, Ismail Nawang and N Bidin, ‘The Doctrine of Basic Structure of the Malaysian Constitution: A Study of Framework’ (2017) 25 Pertanika J. Soc. Sci. & Hum 163 <http://www.pertanika.upm.edu.my/resources/files/Pertanika%20PAPERS/JSSH%20Vol.%2025%20(S)%20Oct.%202017/JSSH(S)-0546-2017.pdf> accessed 7 July 2026.

[10] Ong Benjamin Joshua (n3).

[11] [2010] 3 CLJ 507.

[12] Tan Sri Mohamed Apandi Ali, ‘Opinion: The Myth of the Basic Structure Doctrine in Malaysia’ (The Edge Malaysia8 May 2025) <https://theedgemalaysia.com/node/754555> accessed 7 July 2026.

[13] [1980] 1 MLJ 213.

[14] SHEILA RAMALINGAM, ‘View of UNRAVELLING the BASIC STRUCTURE DOCTRINE in MALAYSIA’ (Um.edu.my4 October 2025) <https://ejournal.um.edu.my/index.php/JMCL/article/view/65047/18959> accessed 7 July 2025.