My Say: The basic structure doctrine in relation to amending the Federal Constitution

This article first appeared in Forum, The Edge Malaysia Weekly, on November 14, 2022 - November 20, 2022.
My Say: The basic structure doctrine in relation to amending the Federal Constitution
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Malaysia’s Federal Constitution is the supreme law of the federation, so much so that any inconsistent law is void to the extent of the inconsistency. It is thus interesting that all the members of the Reid Commission, the commission responsible for drafting the constitution, are foreigners. The commission was led by Lord Reid, after whom the commission was named; Sir William McKell, former governor-general of Australia; Justice B Malik, former chief justice of the Allahabad High Court in India; Justice Abdul Hamid, Pakistan High Court judge and secretary to the law ministry in West Pakistan; and Sir Ivor Jennings, former King’s Counsel and Cambridge University vice-chancellor and author.

These non-Malayan drafters were arguably in the best position to draft our constitution on the basis of impartiality. All members had legal training and experience in Commonwealth parliamentary traditions and constitutions, derived largely from English constitutionalism. The experience, personality and belief systems of the members of the commission no doubt played a huge part in determining the final draft that they submitted. However, the extent of the influence and whether it is desirable is a subjective matter open to debate.

The practice of drawing up a constitution in the process of forming independent countries from British colonies was not uncommon by the time. A similar situation happened when three British colonies in North America decided to unite and form a single, self-governing confederation under the British Crown. A constitution was drawn up and passed in the British parliament in 1867, after which the Confederation of Canada was born.

The same happened in Australia and India, although in these two cases, it is important to note that their respective constitutions were written by their own national assembly and representatives. But why did the British decide that their colonies, including then Malaya, should have a codified constitution when they themselves did not have one? While the real reason behind this may never be known, the outcome is that Malaysia has a document that governs the nation in a unique way.

Given the supremacy of the Federal Constitution, it is important that it continues to be relevant to meet the needs of the people and the institution at all times. It is for this reason that the Federal Constitution itself provides for ways it can be amended through Article 159, subject to the conditions of the same article and Article 161E. However, some may question whether it is wise for the constitution, being the supreme law of the nation, to be amended as and when deemed fit. Does this infringe on the basic structure of the constitution?

The implication of the doctrine of basic structure is that amendments to a constitution should be limited to the extent that it does not destroy or reduce the specified features and elements that have been decided to be part of the basic structure. But what are the elements of basic structure in the Malaysian context? There is no actual list of what the basic structure consists of; instead, it is arguably an act of judicial activism, decisions on a case-to-case basis by the courts.

Taking inspiration from other countries

Constitutions vary from one nation to the other, with each document being unique to the sovereign state it represents. One element of comparison is whether the constitution is codified. And if codified, to what extent? The Confederation of Canada, for example, opted for a middle point, with codified and uncodified parts of its constitution, partially reflecting the practice of the UK, which has a fully uncodified constitution.

An uncodified constitution does not imply an unwritten constitution. Rather, it means there is no core document that enshrines all the rules and regulations with regard to the creation and design of the nation, as well as its relationship with its citizens. This uncodified part includes principles and conventions assumed to be the bedrock on which the express constitutional documents are based. The courts are responsible for interpreting these unwritten elements, but this practice of interpretation is not seen as an act of judicial activism or creation of new provisions to the constitution. One reason that a partial or fully uncodified constitution may be desirable is that it gives the constitution more flexibility.

In the US, for example, the Constitution is fully codified. Supreme Court judges, when interpreting the Constitution, must consider what the founding fathers meant when they wrote it. In contrast, Canadian and British Supreme Court judges, among others, consider how best to interpret their constitutions in the light of the current social reality.

However, a codified constitution provides clarity and, most importantly, accessibility to every person in every layer of society. It is supposed to be an overarching supreme law of the land, and citizens must know the blueprint of the nation and their list of protected rights to be able to enforce it. It cannot be a matter where citizens must rely upon subjective interpretation of their rights. Thus, it is far from concluded that there is an ultimate form that a constitution must adopt as each form comes with its own pros and cons.

Parliament and the Federal Constitution

Parliament and its role in democracy is one of the most prominent features of the Federal Constitution. In fact, when it was drafted in 1957, of the 181 articles, 57 (or 31.5%) were devoted to the role and function of an elected and representative parliament.

Article 44 of the Federal Constitution gives legislative authority of the federation to the two houses of parliament, the Dewan Rakyat and Dewan Negara. However, the constitution with respect to parliament also stipulates various exemptions and limits. For example, the Ninth Schedule limits what can and cannot be legislated by the federal legislative body. Article 74(1) limits parliament’s legislative power only to matters in the federal and concurrent list in the Ninth Schedule. Moreover, parliament can amend the constitution only through the procedures set out in Article 159.

Nevertheless, the significance and role of the 222 members of parliament who make up the main legislative body in Malaysia are undeniably important. They are chosen through a democratic electoral process that provides them with the legitimacy not only to make laws but also to speak on behalf of the people on all matters. The checks and balances that exist in parliament are vital to ensure democracy in Malaysia.

The judiciary and the constitution 

The role of the judiciary in the Federal Constitution can be found largely defined in Part IX, articles 121 to 131A. In a series of cases, it has been established that the court’s powers extend further than that in Article 121(1). This further reiterates the importance of the independence of the judiciary in decision-making, including exercising discretion in giving sentences. The recent government decision also led to this effect, for example, the cabinet’s decision to abolish the mandatory death penalty in Malaysia mainly revolves around providing discretion to judges to decide on the most appropriate sentence, given the varied circumstances of the offence before them.

Contentious issues

It has been argued that there needs to be a flexible constitution balanced with stability provided by the basic structure doctrine. One issue is ouster clauses, referring to provisions that expressly oust the supervisory jurisdiction or power of the judiciary. Currently, there are about 60 such laws. While arguably such laws may be needed for public order and national security, when analysing current ouster clauses, some do not remotely relate to these realms.

It begs the question of whether ouster clauses are constitutional. The amendment to include Article 121(1) made in 1988 was coined the “judicial crisis” as it effectively subordinated the judiciary to the parliament by limiting judicial power to that prescribed by federal law, that is, laws passed by acts of parliament. This was confirmed in the case of PP v Kok Wah Kuan (Kok Wah Kuan). The basic structure doctrine, specifically that of judicial independence and separation of powers, was deemed incapable of overcoming an express provision of the constitution.

However, in the decisions of Semenyih Jaya Sdn Bhd v Land Administrator of the District of Hulu Langat, Indira Gandhi Mutho v The Director of Islamic Affairs Perak & Ors And Other Appeals, and Alma Nudo Atenza v PP & Another Appeal, the courts departed from and overturned Kok Wah Kuan. The doctrines of separation of powers and judicial independence were re-asserted as comprising part of the basic structure of the Federal Constitution, and since ouster clauses undermine judicial power and impinge on the doctrine of separation of powers, it was deemed unconstitutional.

Despite this, the position of ouster clauses again took several confusing turns last year. In Maria Chin Abdullah v Director General of Immigration and Rovin Joty A/L Kodeeswaran v Lembaga Pencegahan Jenayah & Ors, the Federal Court returned to the position of Kok Wah Kuan. But the recent decision in Dhinesh A/L Tanaphil v Lembaga Pencegahan Jenayah & Ors and affirmed in Nivesh Nair Mohan v Dato Abdul Razak Musa & Ors, the Federal Court once again decided the reverse. The implication of the most recent cases is that ouster clauses, by limiting judicial review, are unconstitutional, based on the basic structure doctrine argument.

As the status of the basic structure doctrine is still unclear in our constitution, and as mentioned in the introduction that there is no list to this basic structure, it is possible for amendments to be made until the nature and structure of the Federal Constitution is unrecognisable. Is that necessarily bad? Could such amendments be justified as necessary to facilitate the growth of the country?

Changing the unchangeable

In the past six decades, the Federal Constitution has been amended no fewer than 57 times. In the past 13 months alone, it has been amended three times: the inclusion of the Malaysia Agreement 1963 (MA63), to exclude royals from being part of the automatic voter registration, and the most recent anti-party hopping provision.

There are two schools of thought here, one is the argument that the constitution should not be subjected to frequent amendments. The other is that the constitution is there to serve a purpose and should not be stagnant. Taking into consideration both schools of thought, the above amendments within a span of less than a year are deemed “fit for purpose”, meaning they were in line with the needs of the people and the institution. Thus, such amendments are beneficial to the growth of the country and for the public good. Thus, such amendments should not be described as affecting the basic structure of the Federal Constitution as it benefits the country as a whole.

Proper and inclusive engagement sessions prior to or during drafting ensures amendments weigh the interests of different groups, thus ensuring the holisticness of amendments. Engagement sessions with members of parliament from different parties further secure support in parliament, increasing the likelihood that the bill will be successful. This is evident in the three most recent constitutional amendments. The Malaysia Agreement 1963 amendments saw a majority of 199 members of parliament who supported the bill at the Dewan Rakyat and majority of 49 at the Dewan Negara. The amendments to exclude royals in automatic voter registration saw a majority of 181 at the Dewan Rakyat and a majority of 50 out of 58 at the Dewan Negara. The anti-hopping provision saw a majority of 209 at the Dewan Rakyat and a majority of 52 at the Dewan Negara. Thus, arguably the process by which a constitutional amendment was drafted and passed, such as through an inclusive process, may further validate and strengthen the amendment.

Certain subject matters are also important to either be added or repealed to ensure that the constitution continues to be relevant to the times. One area in which a constitutional amendment would be particularly important is with regard to the environment. Expressly, the Federal Constitution is silent on the subject matter. Rather, the area of environment may be implied to be included under Article 5(1) “life or personal liberty” and reference was made to the case of Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Another. In this respect, that neither the federal nor the state can be specifically held accountable to legislate on matters related to environmental protection proves to be a huge loophole. This matter should be clearly included in the Federal Constitution, given the increasing importance placed on environmental protection, and international commitments such as the Sustainable Development Goals by 2030.

Besides this, looking at issues that are the shared responsibility of the federal and state governments should also be given importance. One example is the Ninth Schedule, which outlines the subject matter on which the state and federal bodies can legislate. Parliament can legislate on matters stated under List I and List III, the federal and concurrent list, whereas the state legislative body has power to legislate on matters under List II and List III, the state and concurrent list. Under Article 77, states may also legislate on any matter that has not been included in any of the lists. This is known as the residual power of legislation.

Tourism was a residual power of the state until the amendment of Act 805, effective from June 1994, which placed tourism under the federal list as item 25A. This effectively narrowed the legislative power of states while adding power to parliament on this subject matter. However, the amendment was passed without first getting the consent of the states. The amendment thus continues to be a contentious matter for states, especially Sabah and Sarawak.

The important idea here is that changing the unchangeable may at times be necessary to better represent the spirit of the nation and to facilitate growth, and may be validated through inclusive processes. This, however, is not always the case. Thus, there must be proper safeguards in place to reduce “bad” constitutional amendments.

Basic structure in Malaysia

The question is, how do we draw the line between what should be maintained in the Federal Constitution and what elements can and should be open to change? This is the balancing act between stability and flexibility. In Sivarasa Rasiah v The Malaysian Bar, “it is clear from the way in which the Federal Constitution is constructed that there are certain features that constitute its basic fabric. Unless sanctioned by the Constitution itself, any statute (including one amending the Constitution) that offends the basic structure may be struck down as unconstitutional. Whether a particular feature is part of the basic structure must be worked out on a case-by-case basis.” 

This raises several questions. First, should the basic structure be decided on a case-to-case basis by the judiciary? If that is the case, then there is no guarantee that what is basic and fundamental is protected at all, which defeats the purpose of a basic structure doctrine. One solution to this is to adopt a closed list of basic structure elements. This, in fact, is the case in India, where the elements of the basic structure of the constitution have been clearly drawn up by the judiciary, most in the case of Kesavananda Bharati v State of Kerala. If this is adopted, it begs a second question of what elements should be included in that closed list.

Looking to the Westminster model, in Hinds v The Queen, Lord Diplock is quoted as saying: “The basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government.” This was affirmed in State of Mauritius v Abdool Rachid Khoyratty, in which Lord Steyn observed that “the idea of a democracy further implicates protection of fundamental rights, independent judiciary, and separation of powers between the legislature, executive and judiciary”. In India, the elements include supremacy of the constitution, democratic and republican form of government, separation of powers and individual freedom.

It appears that two overlapping pertinent elements are the separation of powers between the judiciary, legislative and executive bodies, and the independence of the judiciary. Next is parliamentary democracy, a requirement to ensure there is sufficient check and balance in the government. Not least is the protection of fundamental liberties, which is provided by Part II, Articles 5 to 13. All these elements have been mentioned in Malaysian case laws as being worthy elements of the Federal Constitution’s basic structure.

Conclusion

The most interesting part of the law, unlike fields such as mathematics, physics and chemistry, is that it is ever evolving with a constant balancing of multiple contrasting considerations. It allows, and in fact requires, lawmakers to be humble enough to admit when they have erred, and amendments need to be made. The law does not claim to be perfect, but it claims to continuously strive to be better. Thus, members of the legal fraternity should never take the law for granted, even something as settled as the Federal Constitution. It is interesting to now witness how the doctrine of basic structure continues to evolve in Malaysia.


This article is an edited version of Datuk Seri Dr Wan Junaidi Tuanku Jaafar’s opening address at the Basic Structure and Constitutional Amendments Symposium at the University of Malaya on Oct 14, 2022. Wan Junaidi was minister in the Prime Minister’s Department (law and parliament) from August 2021 to October 2022; Dr Punitha Silivarajoo-James is director (policy and research) at the legal affairs division of the Prime Minister’s Department; and Zulaikha Zainal Efendi is a Perdana Fellow who worked with Wan Junaidi.

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