This article first appeared in Forum, The Edge Malaysia Weekly on October 24, 2022 - October 30, 2022

Of late, there has been growing interest in the work of the Federal Court and its role in construing and interpreting the workings and interrelationship between each branch of government.

The Federal Constitution vests the Federal Court with judicial power and authority to interpret the scope of laws passed. Unlike Britain, Malaysia has a written constitution, which is our supreme law. No organ of government created by the constitution is bigger or more powerful than the others. They are co-equal in power but fulfil different functions. That is how checks and balances can take place to maintain the sanctity of the Federal Constitution and the rule of law. Parliament (the legislature), the Yang di-Pertuan Agong (YDPA) and the cabinet/prime minister as executive organs have their own spheres of power and authority. So too do the rulers and governors of states and their respective jurisdictions under state powers and the Second List.

One main attack on the Federal Court’s recent jurisprudence is that the unelected judiciary has taken over a power that rests firmly with the executive and legislature.This criticism is misconstrued, mischievous and misconceived and ought to be rejected by right-thinking members of the citizenry.

The Federal Constitution espouses a democratic form of governance and sets out the division of powers between constitutional organs. When Tunku Abdul Rahman read the Declaration of Independence (Pemasyhuran Kemerdekaan Tanah Melayu) in 1957, he declared that Malaya would forever be “a sovereign, democratic and independent state founded upon the principles of liberty and justice and ever seeking the welfare and happiness of its people and the maintenance of a just peace among all nations”.

The Federation of Malaya Agreement, which constituted the nation, accepted a covenant that would govern the polity, and the rights and duties of the rulers and the ruled. This bargain has helped us to journey from post-war Emergency, Konfrontasi with Indonesia and the May 13 riots to the present day. Throughout, the judiciary has played a vital part in balancing the rights of the individual and minority communities with majoritarian claims of law and order and economic development.

Constitutional interpretation is dynamic and cannot be crippled by the dead hand of the past. At the apex level, it is the constitutional role of the Federal Court to navigate the claims of precedent and the context of constitutional realities of 21st-century Malaysia.

In recent years, the Federal Court has responded to the attempt by parliament to remove its “judicial power” by amending Article 121 of the Federal Constitution by asserting that there is a basic structure, an internal architecture in the Constitution that no amendment can remove. This is what has come to be known as the Basic Structure Doctrine (BSD), and one of the pillars of the basic structure of the Federal Constitution is the independence of the judiciary, which includes the power to determine the parameters and boundaries of laws passed, and the legality of parliamentary and executive actions and decisions.

What the Federal Court has done is merely to reassert its proper place in the constitutional pantheon. This should never be construed as the Court being anti-anybody or thing. In construing the laws, our judges are servants and stewards of the constitution, which they all took a solemn oath before the YDPA and the nation to uphold and defend. Their duty is to interpret and lay down the nature, scope and application of all laws, including amendments to the Federal Constitution.

The BSD is now the target of an attack by various quarters who argue that the Federal Court has used (or will use) it as a weapon or tool to strike down “undesirable” executive decisions and legislation. This is a travesty and a caricature of what the courts actually did. Coming from those quarters, including certain retired senior judges, it is lamentable since they lend these attacks a halo of respectability. If only these critics would look more closely at the judgments. A closer look at the decisions in which the BSD was discussed will show that the doctrine itself did not form the bedrock of those decisions. The BSD was used only to affirm the rule of law and its boundaries of operation. Only in one case — Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat (2017) — was the doctrine used to reject incursions made on the courts’ judicial power. Judges have consistently benchmarked any laws (which include any attempt of parliament to amend the constitution) against the supremacy clause in Article 4.

It is ironic that the critics of the BSD chafe at its application only when it comes to the delineation of the constitutional spheres of religion and rulership. Undoubtedly, it may be argued that the contours of BSD are ill-defined, and there may be legitimate anxieties that courts may “abuse” their judicial power “to strike down legitimate legislation and executive decisions springing from such laws”. With respect, such anxieties are unfounded as in each of the decisions that alluded to or even articulated the BSD as an undergirding concept, there has been absolutely no hint of the courts ignoring their proper boundaries. All these decisions can be justified as proper constructions of the Federal Constitution. The BSD is not an Indian or foreign import, although both the Indian and German courts have given an exposition of the same. In any case, that is a red herring. A good idea is a good idea regardless of where it comes from. What we see is the Malaysian judiciary evolving its own jurisprudence when confronted by novel situations that call for it to affirm our constitutional identity as a state and nation.

Critics of BSD who set up straw arguments and invoke threats to their way of life must critically ask themselves what they are so antagonistic about and not simply cry wolf when there is none.

At the UM-NUS Symposium entitled “Constitutional Amendments and the Basic Structure Doctrine in Malaysia” held on Oct 14 and 15, notable academics and practitioners analysed and critiqued the BSD (see recording on the Facebook page of the Faculty of Law, Universiti Malaya). Polemics were set aside and the matters were delved into dispassionately. It was a far cry from the alarmist, bowdlerising diatribes being hurled about online.

Philip T N Koh is an adjunct professor of law at Universiti Malaya

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