Conclusion
Constitutional adjudication is bound up in constitutional politics. Courts in Malaysia, as in many other fragile democracies in Asia, face the sensitive task of navigating powerful political actors in seeking to enhance the judiciary's position as a constitutional stakeholder.
That endeavor is ever more challenging - and ever more crucial - amidst a political landscape in flux.For decades, Malaysia operated under a dominant ruling coalition, the Barisan Nasional alliance, which had held power since before the country’s independence in 1957. That ended in 2018, when Barisan Nasional was voted out in an
Constitutional amendments in Malaysia 109 unprecedented election outcome, resulting in the transfer of government power to the Pakatan Harapan coalition - the Alliance of Hope - in the country's first ever democratic transition.
And then came 2020. A domestic government crisis, and a global pandemic. In March 2020, the Pakatan Harapan government collapsed, following political defections and a leadership battle between political rivals. Prime Minister Muhyiddin Yassin was appointed premier by the King, at the helm of Perikatan Nasional, a hastily assembled coalition that returned many members of the Barisan Nasional government to power. Citing the coronavirus pandemic, in January 2021, a nationwide state of emergency was declared, followed by the government announcing the suspension of Parliament; by August 2021 however, internal power struggles within the Perikatan Nasional government saw Prime Minister Muhyiddin Yassin replaced by Ismail Sabri Yaakob, the country's third premier in three years.[399]
It is against this background of constitutional politics - of a long history of dominance by a single political alliance, and of deeply fragile political dynamics in transition - that the evolution of judicial power and the unconstitutional constitutional amendments doctrine in Malaysia must be understood.
Faced with consolidated political power for much of the nation's post-independence history, the Malaysian judiciary's path toward becoming an effective constraint on the governing powers has been described as Sisyphean.[400]Yet, in recent times, the Malaysian courts have shown signs of judicial willingness to reassert power, through the careful, but unmistakable, development of the basic structure doctrine. With strategic maneuvering, the Malaysian Federal Court set the groundwork for safeguarding foundational constitutional elements from being altered by the legislature in its 2017 decision in Semenyih Jaya.[401] A year later, in another display of judicial statecraft in Indira Gandhi, the apex court explicitly endorsed the constitutional basic structure doctrine, invoking the power to nullify a constitutional amendment that curtailed the civil courts' power of judicial review.[402] And in subsequent cases in 2019 and 2020, the Federal Court affirmed that the doctrine that “courts can prevent Parliament from destroying the basic structure of the Constitution” is now part of Malaysian constitutional jurisprudence.[403]
Judicial embrace of the basic structure doctrine in Malaysia has not been ubiquitous, however. Recent Federal Court judgments, like the Maria Chin judgment and other decisions delivered in 2021, underscore that some judges reject the basic structure doctrine’s relevance in Malaysia’s constitutional context.127 That not all judicial quarters have embraced the notion that there can be implied limits on constitutional amendments is unsurprising, especially for judges navigating a fraught political context. But it does not decisively undermine the basic structure doctrine established by the apex court’s contemporary jurisprudence.
Of course, the precise contours of the doctrine’s operation in Malaysia remain to be worked out. What seems undeniable, though, is that the notion of an implied domain of unamendable features has begun to alter the landscape of Malaysia’s constitutional order and that doctrine will increasingly be invoked in future constitutional litigation, as recent constitutional challenges only confirm.128
The trajectory of judicial power in a fragile democracy rarely moves in a straight line; it zigs and zags.
With its unanimous decisions in Semenyih Jaya, Indira Gandhi, and Alma Nudo establishing judicial review over constitutional amendments, the Malaysian Federal Court put in place a firm foundation for a potent judicial mechanism that empowers courts to protect basic principles of separation of powers and judicial review as part of the constitution’s foundational core. Even so, ultimately, the doctrine’s effectiveness rests on judicial willingness to wield this powerful tool.Dayung sudah di tangan, perahu sudah di air, as a Malay proverb goes, “The paddle is already in hand, the canoe is already in the water.” While the exact shape of the Malaysian courts’ path may yet be uncertain, the way forward has been clearly lit.
[110] (Justice David Wong observing “[w]hat remains clear at this juncture is that the assertion that there is no such thing as basic structure doctrine, may no longer be made”).
127 Maria Chin (n 6) (majority opinion of Justice Abdul Rahman Sebli).
128 See, for example, Datuk Seri Anwar Ibrahim v. Kerajaan Malaysia (Civ. Appl. No. 06(RS)-1-03/2019(W); Nivesh Nair v Abdul Razak Musa, at [26] (Cr. Appl. No: 05(RJ)- 2-03/2021(W)). See also recent cases revealing the Federal Court’s divide on the basic structure doctrine (n 106).
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