Authored By: Leshimita a/p Kamalezveran
Brickfields Asia College (BAC), Malaysia
Introduction
In past years or rather for decades, the Basic Structure Doctrine that is quoted and often marked as evidently a landmark legal principle that was established by the Supreme Court of India in 1973 is constantly rejected by Malaysia’s jurisprudence by choosing a stand that practices constitutional supremacy under the Article 159 of the Federal Constitution in terms of Parliament’s amending powers. However, as times change, the very orthodox textualism that was upheld for decades was completely fragmented by the case of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and Another Case [2017] 3 MLJ 561 which reasserted the independence of the judiciary and the core importance of separation of powers that are unamendable leading to one of the landmark decisions in the constitution. The case of Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and Other Appeals [2018] 1 MLJ 545 too further amplified the two importance as core tenets of the rule. Following on, cases such Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 3 MLRA 1 which dissented the old rule and unveiled an incredibly deep fractured apex court while wavering on different opinions regarding the doctrine’s legitimacy. However, a recent landmark decision which is Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] 3 MLJ 356 that reformalized closely of the doctrine towards the path of liking back to constitutional supremacy clause under Article 4(1) of the Federal Constitution.
Thesis Statement
Hence, illuminating the main context that this article contends is that the action of acknowledging and the act of preserving the Basic Structure Doctrine by the Malaysian Federal Court is absolutely not an undermining nor an illegitimate exercise in the sense that practicing as well as conforming an extra-constitutional judicial activism but rather seen as undoubtedly essential structure to be upheld in order to grant and build what this nation needs. Affirmation of the clause in Article 4(1) of the Federal Constitution explicitly demands the growth and change as well. It was brought to attention as well that although a broad power is indeed granted to the Parliament under Article 159 of the Federal Constitution to amend the Federal Constitution, only the existing constitutional framework were allowed to be made amendments at discretionary purposes but the very institutional identity of the Constitution itself must not be disturbed or influenced to be destroyed. When doctrine within the Article 4(1) of the Federal Constitution itself is grounded against the majoritarian overreach, its denounces indirectly of the apex court’s progressive jurisprudence which would less serve its purpose as the vital constitutional correction to run the nation. Inherently, judicial power was restored after the 1998 crisis which aimed better at the separation of powers, core judicial independence and rule of law to be impervious to legislative pillar which thus depriving through statutory ouster clauses.
The Structural Blueprint and the 1988 Article 121(1) Crisis
The Malaysian Federal Constitution holds the ground on establishing a complete transparent and clear separation of powers between the three pillars that form the government which are the Executive, the Legislature and the Judiciary. When the nation gained its independence at 1957, Judiciary was explicitly vested as a co-equal branch of the government in the High Courts under Article 121(1) of the Federal Constitution to aim the equilibrium. However, when the Constitution (Amendment) Act 1988 (Act A704) came into power, it defied and caused imbalance to the core constitutional equilibrium that was established after gaining the independence. In such way, the federal law deemed as sovereign with court’s jurisdiction may be conferred upon it. The implication of the amendment coming into power and being exercised throughout the nation’s court jurisdictions bended the jurisprudential towards the literal textualism in increasingly a concerned direction and rather an extreme wording of the law itself. The established case which is PP v Kok Wah Kuan [2008] 1 MLJ 1 illustrated the matter of the Federal Court taking a stand in rather a controversial heat that produced the profound decision of dependence of the judicial power is to be inherent as of the moment towards the legislative conferment entirely. “Our Constitution is not a replica of the US Constitution… The separation of powers is not a strict or watertight feature. The jurisdiction and powers of the courts in Malaysia depend on what federal law says.” was an inspiring observation made by Abdul Hamid Mohamad PCA that placed a stronghold on regards that ouster clauses were unable to scrutinized then which leds the legislature unaccountable by treating the third brach of government to Parliament instead.
IV. Case Law Analysis: The Judicial Renaissance
An inevitable point came into piece in the current times of Malaysia’s constitutional history when the 1988 amendment was inevitably dismantled by systematic processes that lead to a very much evolved judicial trilogy. The landmark evidence was concluded from the case of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and Another Case [2017] 3 MLJ 561 where Section 40D of the Land Acquisition Act 1960 was struck down with no further discussions and debate by the Federal Court themselves. Ratio decidendi as in the leading judgement delivered by Zainun Ali FCJ in actively pursuing and validating the monopoly of judicial power. The statement perpetually included that “The judicial power of the Federation remains in the courts… Parliament cannot, by an amendment of the Constitution, destroy the basic structure of the Constitution. The amendment to Article 121(1) cannot be interpreted as a license for Parliament to strip the courts of their inherent constitutional role.” which hold the jurisdiction at the highest account of respecting the separation powers.
More of the statement was exemplified better in the case of Indira Gandhi Mutho v Pengarah Jabatan Agama Islam Perak [2018] 1 MLJ 545 where the scope of judicial power and jurisdiction to hold a judicial review is undeniably an unamendable core feature of the base of the constitution itself held by the apex court. Further clarification were given to enhance the statement that in order for the enforcement for the rule of law, judicial review is an absolute mechanism and cannot be under a mere discretionary od the legislative and administrative decree. Maria Chin Abdullah v Ketua Pengarah Imigresen [2021] 3 MLJ 759 and Zaidi bin Kanapiah v ASP Khairul Fairoz [2021] 3 MLJ 759 were the cases of temporary procession of the textualist judges that actively divided and urged the pushback for te insurgence of judicial independence. Finally, the full application of the doctrine was tributed and established in Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah [2022] 3 MLJ 356 in having a declaration that barring judicial review is an extremely unconstitutional act by using the legislature provisions and rather invitalises the Basic Structure Doctrine under the text of Article 4(1) of the Federal Constitution.
V. Critical Evaluation: Article 4(1) vs. Article 159
Constitutional debate surrounded the conflict in between Article 159 that only evolved to power to discern by codifying the application of two-thirds majority is the requirement for the Constitution to be amended by the Parliament whereas Article 4(1) that exclaims the statement of Constitution to be the supreme law of the land. In regards to that, the ‘basic structure’ phrase is dissented by many skeptics as it is not codified as its or written in the constitution or even case laws and hence, the doctrine of parliamentary sovereignty. Is breached and crossed. Nevertheless, the very nature of what an actual written constitution is often misinterpreted and core remark of the criticism. In the sense that power to ‘amend’ is inherently only to alter, modify and improve the existing provisions and yet again emphasizes that idea of destroying and intending to influence badly the fundamental identity of the constitutional framework itself is completely restricted and forbidden. Thought of having an unlimited version of power by the Parliament to the characteristics of the nation to be at their disposal to be altered, it favours the idea of eliminating and dissenting the fundamental liberties entirely. Thus, in order to ensure while may the individual laws evolve as tim passes as well as the provisions, the Basic Structure Doctrine rather serves as in an implied nature with limits anchored under Article 4(1) to produce an intact democratic and institutional of the nation.
IV. Conclusion
In light of the authorities discussed, it is submitted that the Basic Structure Doctrine is truly essential as it has been revived to represent Malaysia’s legal history in terms correcting a vital part of the constitution itself. Inevidently, despite being the foreign transplant, the supremacy clause under Article 4(1) of the Federal Constitution requires the doctrine to a native necessity to aim and construe a better meaning. The two unamendable pillars of the government which are the judicial power and the separation of powers to be recognised as such allow\ed the Federal Court to reassess the situations in the nation and deprive the choosing to causing damage as it had been done by the 1998 crisis. It ensured the fundamental liberties will be protected by judicial review famously heed the saying that no one is above the law.
Primary Sources: Case Law
Alma Nudo Atenza v Public Prosecutor [2019] 4 MLJ 1 (FC).
Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] 3 MLJ 356 (FC).
Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors [2018] 1 MLJ 545 (FC).
Kesavananda Bharati v State of Kerala AIR 1973 SC 1461 (SC India).
Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 3 MLJ 759 (FC).
Public Prosecutor v Kok Wah Kuan [2008] 1 MLJ 1 (FC).
Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Another Case [2017] 3 MLJ 561 (FC).
Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan & Ors [2021] 3 MLJ 759 (FC).
Primary Sources: Statutes & Legislative Instruments
Federal Constitution of Malaysia.
Constitution (Amendment) Act 1988 (Act A704).
Secondary Sources: Books & Academic Materials
Tan, KYL and Lee, HP (eds), The Basic Structure Doctrine in Malaysia: Themes and Perspectives (Bloomsbury Publishing 2025).
Publisher Portal: Bloomsbury Professional Law
Ong, BJ, ‘The Basic Structure in Malaysia: Less than Meets the Eye’ in KYL Tan and HP Lee (eds), The Basic Structure Doctrine in Malaysia: Themes and Perspectives (Bloomsbury Publishing 2025).
Tay Tze Vern, W, ‘The Protection of Judicial Power and the Resurgence of Constitutionalism in Malaysia’ (2025) 20 Cambridge Asian Journal of Comparative Law 45.
Journal Database: Cambridge Core Journal Archive
Malaysian Bar Council Legal Archives, ‘The Historic Shifts of Article 121(1) and Constitutional Supremacy’ (Malaysian Bar Council Law Library Portal).
Research Library: The Malaysian Bar Press & Insights Portal
