Introduction

The judicial review of constitutional amendments is more than a matter of law, it is inescapably also a matter of constitutional politics. The question of whether a constitution possesses a foundational core immune from legislative alteration lies at the heart of how a particular polity conceives of its vision of constitutionalism.

The Malaysian experience with the notion of a constitutional basic structure over the last half century reveals a story about judicial power and constitutional politics. It is a story that cannot fully be told without understanding the courts' interaction with the political branches of government.^[285]

Courts in Malaysia have long had - and continue - to navigate fraught politi­cal dynamics. For decades considered a dominant party regime, Malaysia had been governed by a single political coalition - Barisan Nasional - since its inde­pendence in 1957. In 2018, the Barisan Nasional government was voted out for the first time in the country's history. That unprecedented democratic regime change was followed by the Pakatan Harapan government's collapse in 2020, and a newly assembled Perikatan National coalition taking power, before itself suc­cumbing to internal power struggles resulting in yet another change in leadership in 2021. Malaysia today is no longer, as it once was, characterized by a dominant political coalition that has never been ousted from power; it is, more than ever before, deeply fragile.

This chapter explores the rising trajectory of the unconstitutional constitutional amendments doctrine in Malaysia's constitutional landscape. The course of the doctrine's journey never did run smooth; it has been one of fits and starts. It traces the evolution of the Malaysian judiciary's engagement with the basic structure doc­trine: from initial judicial resistance to the apex court's contemporary jurisprudence that established the judicial review of unconstitutional constitutional amendments in Malaysia's constitutional landscape.

Section 5.2 begins with the birth and growth of the Malaysian nation from its independence in 1957 and outlines the key institutions of constitutional govern­ance of the Malaysian state. It sets out the constitutional amendment procedures laid out in the Malaysian Federal Constitution and situates the ease of consti­tutional change within a broader context dominated by consolidated political power. Section 5.3 looks at early judicial dicta in the 1970s and 1980s expressing skepticism toward the idea of implied limitations on constitutional amendments. Of significance is the constitutional amendment passed in 1988 altering Article 121(1) of the Federal Constitution to remove the textual provision vesting judi­cial power in the courts, and the Malaysian judiciary’s anemic response to that legislative intrusion on judicial power. ^[286]

Section 5.4 examines the judicial renaissance in developing a doctrine protect­ing unamendable constitutional features in Malaysia. It focuses on three principal cases that demonstrate the rise of the basic structure doctrine in Malaysian consti­tutional jurisprudence: Semenyih Jaya,^[287] [288] [289] Indira Gandhif and Alma Nudo.³ In this trilogy of cases, the Malaysian apex court affirmed and entrenched the basic struc­ture doctrine to Malaysia’s constitutional order. While there is still some judicial reluctance to recognize that the doctrine fully applies to the Malaysian context,^[290] what seems undeniable is that the notion of judicial review of constitutional amendments now occupies a central part in judicial reasoning and constitutional practice in Malaysia. The final part of this chapter considers how the basic struc­ture doctrine might apply to specific constitutional amendments excluding judicial review over an emergency proclamation and removing the requirement of royal assent to legislation. We conclude with reflections on the contemporary state of Malaysian constitutional adjudication and politics, and the judicial path forward.

5.2