THE recent opinion piece by Tan Sri Zainun Ali (“A response to Tun Hamid Mohamed”, May 4) passionately defends the Basic Structure Doctrine (BSD) as a cornerstone of Malaysia’s constitutional identity. While her commitment to constitutional supremacy and judicial independence is to be respected, her assertions regarding the origin, development, and legal basis of the BSD in Malaysia warrant critical scrutiny.

First, it must be said that respectful disagreement is fundamental to democratic discourse, especially in constitutional interpretation. 

While Zainun criticises Hamid’s recent article on the Basic Structure Doctrine (BSD) as one that "fails and falters on all fronts", such a sweeping dismissal undermines the very standard of reasoned, even-handed engagement she calls for. 

Rather than addressing Hamid’s substantive arguments, her critique leans on tone and insinuation. A proper legal response should instead engage with the legitimacy, provenance, and implications of the BSD in the Malaysian constitutional context.

Zainun contends that Article 4(1) "encapsulates" the BSD, making it native to Malaysia. This interpretation is untenable. Article 4(1) merely affirms constitutional supremacy — that laws inconsistent with the Constitution are void. It is not a gateway to judicially determined unamendable principles.

There is a critical distinction between striking down ordinary legislation under Article 4(1) and striking down constitutional amendments under Article 159. Article 4(1) does not mention amendments at all. The idea that courts may veto amendments passed in full procedural compliance with Article 159 lacks textual support.

Article 159 clearly lays out the procedures for constitutional amendment, including various thresholds and the need for Conference of Rulers’ consent for sensitive provisions. If any substantive limits were intended, they would have been stated expressly, as in Germany’s Basic Law (Article 79(3)). Their absence reflects a conscious democratic design.

The claim that Article 4(1) entails the BSD rewrites constitutional history. The doctrine was first introduced in Sivarasa Rasiah (2010) by Justice Datuk Seri Gopal Sri Ram, who cited Kesavananda Bharati without anchoring it in Article 4(1). Zainun’s later judgements in Semenyih Jaya and Indira Gandhi entrenched this shift — but this was judge-led reform, not organic doctrinal development.

Zainun denies the BSD’s foreign origin, claiming it is shared among jurisdictions like Germany, India, Canada, and Kenya. However, each of those jurisdictions has constitutional mechanisms — eternity clauses, referenda, preambles — not found in Malaysia.

In India, Kesavananda Bharati was a judicial response to constitutional abuse. India lacks an eternity clause but has a rich preamble and distinct historical context. The BSD arose to curb majoritarian overreach. Malaysia, with no analogous crisis, lacks the same justification.

In Germany, Article 79(3) of the German Constitution entrenches core provisions beyond amendment. Kenya’s 2010 Constitution mandates referenda for fundamental changes. Malaysia’s Constitution does not. Article 159(5) of the Federal Constitution provides procedural hurdles (e.g., two-thirds majority, royal consent), reflecting a belief in democratic safeguards — not judicial supremacy.

Judicial precedent in the past has been clear on this matter. In Loh Kooi Choon v Govt of Malaysia [1977] 2 MLJ 18, the BSD was explicitly rejected. Raja Azlan Shah FJ affirmed that Parliament’s power to amend the Constitution was as plenary as that of the British Parliament.

"Law" in Article 4(1) referred to ordinary legislation, not constitutional amendments. Regardless of Zainun’s attempts to frame the decision as one that was reached because Ali FJ passed away and that Wan Suleiman FJ dealt with the case procedurally, the fact remains that this was the first pronouncement of the courts on the BSD, and it was loud and clear — there is no basis for the BSD in Malaysia.

The above was reaffirmed by Phang Chin Hock v PP [1980] 1 MLJ 70, where Suffian LP reiterated this position, stating that it was unnecessary to rule on whether Parliament could destroy the basic structure because the impugned amendment didn’t do so. Contrary to what Zainun asserts in her article, there was no implied endorsement of the BSD. Nor was there any “obliquely acknowledged” so-called existence of the essential basic features in the Federal Constitution, as Zainun misleadingly states.

Further, in Kok Wah Kuan [2007] 1 MLJ, the majority, interpreting Article 121(1) post-1988 amendment, confirmed that courts derive jurisdiction from federal law. Tun Richard Malanjum FJ’s dissent, while impassioned, did not displace precedent.

The pivotal moment for the BSD in Malaysia came in the 2010 Federal Court case of Sivarasa Rasiah v Badan Peguam Malaysia [2010] 2 MLJ 333. In that case, Justice Gopal — sitting as a judge of the Federal Court — introduced the BSD into Malaysian constitutional jurisprudence for the very first time. His Lordship cited the Indian Supreme Court’s landmark case of Kesavananda Bharati v State of Kerala and observed that “certain features…constitute its basic fabric,” and that even constitutional amendments could be struck down if they offend the basic structure. Notably, this proposition was made without reference to Article 4(1) — the very provision that Zainun now retroactively claims has always “encapsulated” the doctrine.

The introduction of the BSD in Sivarasa was not an organic outgrowth of Malaysian constitutional development but a judicial transplant. For over three decades, Malaysia had rejected such a doctrine, affirming instead that constitutional amendments passed in accordance with Article 159 — including those curtailing fundamental liberties — were legally valid unless procedurally flawed. In contrast, Sivarasa signified a profound break with this established understanding.

Rather than grounding his analysis in the text or structure of the Federal Constitution, Gopal relied on normative reasoning about rights and constitutional ideals, borrowing heavily from foreign precedent. This marked a significant shift — not one of evolutionary jurisprudence but of assertive judicial importation.

The writer of the article herself, Zainun, then a judge of the Federal Court, played a critical role in legitimising and entrenching the BSD in subsequent landmark cases. In Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat [2017] 3 MLJ 561, the Federal Court, speaking through Zainun, explicitly declared that concepts such as judicial power, judicial independence, and separation of powers form part of the basic structure of the Constitution. This declaration was made without engaging in a re-examination of earlier binding authorities such as Loh Kooi Choon or Phang Chin Hock, which had clearly rejected such limitations.

Her Ladyship further reinforced this line of reasoning in Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak [2018] 1 MLJ 545. There, the Federal Court once again affirmed that judicial review is an essential and unamendable feature of the Constitution — another step in codifying the BSD as a judicially enforceable limit on Parliament's amendment power.

What is striking, however, is that these judgements rest not on the express text of Article 4(1) or Article 159, but on the assertion that unwritten “core features” or “fundamental constitutional principles” exist and are judicially cognisable. These decisions elevate judicial interpretation over constitutional procedure and allow courts to substitute their view of constitutional essentials for those of Parliament and, where relevant, the Conference of Rulers.

In her article, Zainun also relies heavily on the dissenting opinion of Richard Malanjum FCJ in PP v Kok Wah Kuan [2008] 1 MLJ 1. In that case, the majority of the Federal Court (led by Tun Abdul Hamid Mohamad) held that following the 1988 constitutional amendment to Article 121(1), judicial power is derived solely from federal law. Malanjum’s dissent countered that the courts remain an independent pillar of the Constitution and are not servile agents of Parliament.

While his concern for judicial independence is commendable, Malanjum’s dissent made a significant leap: he suggested that courts should assert a constitutional power of review even against constitutional amendments, implying the BSD without naming it. This was a minority view at the time, and it was not binding precedent.

Yet, in Semenyih Jaya, Zainun explicitly endorsed Malanjum’s dissent, declaring it to now reflect the correct understanding of judicial power. In doing so, she effectively reversed Kok Wah Kuan without a full bench, without doctrinal re-evaluation, and without a formal overruling — a questionable approach in a legal system grounded in stare decisis.

This trajectory culminated in Alma Nudo Atenza v PP [2019] 4 MLJ 1, where then Chief Justice Richard Malanjum, now leading the court, affirmed the BSD outright. By this point, what began as dissent had become orthodoxy — but not through parliamentary amendment or public debate, but through a chain of judgements building upon each other, each citing the last, despite the absence of original constitutional text supporting such doctrine.

This pattern — of citing prior judicial assertions of the BSD to justify new ones — is self-reinforcing and circular. It gives the appearance of doctrinal solidity while bypassing foundational questions of constitutional text, intent, and democratic legitimacy.

The BSD, as practiced, allows unelected judges to define and enforce vague "core" principles. In Semenyih Jaya and Indira Gandhi, the courts mention judicial independence and separation of powers, but no list of basic features is provided. This vagueness invites arbitrary application.

If a future Parliament amends Article 121 to restore balance or reform the judiciary, courts could now strike it down on BSD grounds — displacing Parliament and the Conference of Rulers as constitutional guardians.

In India, the BSD’s scope has ballooned to include electoral fairness, secularism, and more. Malaysia risks replicating this amorphous jurisprudence, undermining legal certainty and democratic control.

Zainun criticises Hamid for suggesting that the Chief Justice strategically empanelled judges to support the BSD in cases such as Maria Chin Abdullah v Ketua Pengarah Imigresen. She dismisses his concerns as “baseless” and characterises them as personal attacks that undermine judicial integrity.

However, this response glosses over the substance of the concern raised. Hamid did not make a gratuitous accusation of judicial corruption. Rather, he questioned the increasing judicial uniformity on the BSD post-2017, following a string of judgements by panels composed of judges known to support the doctrine. Such concerns merit serious institutional scrutiny — not rhetorical dismissal.

Accusations of court-packing or judicial preference are not unique to Malaysia. They arise wherever jurisprudential shifts align conspicuously with changes in judicial composition. The US Supreme Court and Indian judiciary have faced similar critiques — not as personal slanders, but as part of rigorous constitutional dialogue.

If judicial panels repeatedly affirm a new constitutional doctrine — introduced only recently via dissenting opinions — it is legitimate to inquire how such doctrinal entrenchment occurred and whether internal judicial dynamics contributed. 

This is not a “grave allegation”; it is a constitutional reality in common law systems with evolving jurisprudence.

Moreover, Maria Chin Abdullah was a split 4-3 decision — hardly the kind of resounding affirmation that signals settled law. Judges on both sides wrote detailed opinions, including a forceful dissent by Chief Justice Tun Tengku Maimun Tuan Mat. 

The closeness of the vote validates Hamid’s view that the BSD remains controversial and not judicially entrenched.

To conflate scrutiny of judicial trends with attacks on judicial integrity is to silence legitimate public discourse. Judicial independence includes the capacity to withstand critique — even from former members of the bench.

Zainun further argues that the Federal Court in Dhinesh Tanaphil was constitutionally obligated to request submissions on Article 4(1) and Article 121(1). She frames this as routine judicial review under constitutional supremacy.

This framing is disingenuous. The issue in Dhinesh concerned an ouster clause under Section 15B of the Prevention of Crime Act 1959 (POCA). The court’s invitation to parties to submit on the “basic structure” and Article 121(1) was not procedurally mandated. It reflected a judicial intent to test POCA against a framework of substantive constitutional limits — a hallmark of the BSD, not traditional constitutional supremacy.

More troubling is the implication that any failure to invoke BSD principles would amount to judicial abdication. This presumes that the BSD is now the default constitutional standard — a claim that lacks textual or historical grounding. It conflates judicial vigilance with judicial supremacy.

Zainun dismisses Kok Wah Kuan, where the majority upheld parliamentary sovereignty under Article 121(1), as wrongly decided. Yet Kok Wah Kuan remains binding precedent unless expressly overruled. The BSD was not part of Malaysian law at that time, and the judiciary’s powers were understood to derive from — and be limited by — federal law.

The elevation of dissenting judgements (e.g., Malanjum in Kok Wah Kuan) into binding doctrine through later cases like Semenyih Jaya reflects judge-led innovation, not constitutional interpretation. This process warrants scrutiny, not sanctification.

Zainun criticises Hamid’s reliance on Anjum Kardari v Union of India, claiming that the case merely limited the BSD to constitutional amendments, not ordinary statutes.

This criticism misses the point. Anjum Kardari reflects the Indian judiciary’s growing caution against unbounded BSD application. The judgement reiterates that statutes must be tested against specific constitutional provisions — not abstract constitutional values.

Malaysia’s BSD proponents do the opposite: they invoke Article 4(1) and declare entire statutes void based on “judicial independence” or “separation of powers” without clear textual anchors. This creates a slippery slope towards discretionary invalidation — the very concern Anjum Kardari sought to restrain.

Moreover, Zainun contradicts herself. She criticises reliance on foreign doctrine, yet defends the BSD on the basis that other countries (e.g., India, Germany, Kenya) share similar concepts. If foreign precedent is irrelevant when it criticises the BSD, it cannot become authoritative when it supports the BSD.

Zainun asserts that the BSD enhances Malaysia’s rule of law and constitutional stability. She argues that without the BSD, core provisions like Article 3 (Islam as the religion of the Federation) and Article 153 (special position of the Malays) could be abolished by future governments.

This is a false dichotomy. Malaysia already protects such provisions through entrenched safeguards under Article 159(5), which requires the consent of the Conference of Rulers for amendments to sensitive provisions. There is no need for an implied doctrine to do what the Constitution already does explicitly.

By introducing unwritten, judge-made limits on amendment power, the BSD creates uncertainty. Legislators cannot know which amendments will be upheld or struck down. Judicial discretion replaces constitutional clarity.

Far from promoting the rule of law, the BSD undermines it by displacing the Constitution’s text with judicial subjectivity. It reduces democratic accountability by transferring final authority from elected representatives to unelected judges.

Malaysia’s Constitution is not a blank slate, nor is it an immutable relic. It is a living document with built-in mechanisms for change. Article 159, not Article 4(1), governs constitutional amendment. To allow Article 4(1) to override Article 159 is to distort the Constitution’s design and to shift the locus of sovereignty.

In sum, Zainun’s continued invocation of the BSD — as embedded within Article 4(1) — remains textually unsupported, historically inaccurate, and constitutionally destabilising. It is neither necessary for protecting core constitutional values nor compatible with Malaysia’s democratic framework. Any safeguards needed should be enacted through constitutional amendment — not imposed through judicial fiat.

It is not disrespectful to disagree with the judiciary. In a constitutional democracy, respectful scrutiny of judicial reasoning is not only permitted — it is necessary. To dismiss Hamid’s concerns as unfounded conjecture ignores both the long-standing legal debate surrounding the BSD and the very values of open discourse that Zainun herself advocates.

The assertion that the BSD in Malaysia is an “evolution” rather than an “import” is difficult to sustain when the doctrine itself was first judicially articulated in Sivarasa Rasiah (2010) by direct reference to Indian jurisprudence — specifically Kesavananda Bharati. 

Prior to that, the Federal Court in Loh Kooi Choon and Phang Chin Hock had explicitly rejected any notion that constitutional amendments could be substantively constrained by an unwritten doctrine.

It is not conjecture to point this out; it is constitutional history.

Nor does it serve the judiciary’s institutional integrity to assert that criticisms of the BSD amount to attacks on judicial independence. 

One may fully uphold judicial independence while challenging judicial overreach. 

Indeed, the essence of constitutionalism is not merely that Parliament is bound by the Constitution, but that judges are too. When courts begin to limit the express amendment powers under Article 159 by relying on implied principles said to be housed in Article 4(1), this shift of interpretive power warrants rigorous debate, not blind allegiance.

The BSD — at least in its current Malaysian form — lacks the textual, structural, and historical foundation needed to justify its elevation as a constitutional limit on Parliament. It transforms constitutional interpretation from an exercise in fidelity to written provisions into one of judicial policy-making. 

Such a shift undermines the democratic legitimacy of constitutional amendments and erodes the predictability and clarity that constitutional law demands.

Malaysia’s Federal Constitution already includes procedural and institutional safeguards for its most sensitive provisions — from the consent of the Conference of Rulers to special majorities for certain amendments. These were the framers’ deliberate choices. 

If there are concerns about erosion of core constitutional values, the appropriate response is to amend the Constitution — not to invent a doctrine that allows judges to override it.

True constitutional supremacy means fidelity to the Constitution as written — not as imagined. It is time we acknowledge that the BSD, as currently invoked, departs from that fidelity.

Tan Sri Mohamed Apandi Ali is a former Federal Court judge and former attorney general of Malaysia.