A judicial renaissance? The evolution of the unconstitutional constitutional amendments doctrine in Malaysia
5.4.1 The rise of the basic structure doctrine in Malaysia
5.4.1.1 Establishing the basic structure doctrine: Semenyih Jaya
The Malaysian Federal Court’s unanimous decision in the 2017 case Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat represented a landmark assertion of judicial power in Malaysia.[321] On the surface, Semenyih Jaya involved a dispute over the adequate amount of compensation for a compulsory land acquisition.[322] But, shorn of its minutiae, the case engaged a broader question about judicial power.
The Land Acquisition Act of 1960 provided for two lay assessors to assist the presiding judge to determine the compensation of acquired land. In 1997, the Act was amended to provide that “the amount of compensation shall be the amount decided upon by the two assessors,”[323] and that any such decision would be “final and there shall be no further appeal to a higher Court on the matter.”[324] The question was whether the Land Acquisition Act provisions infringed the Article 121(1) judicial power provision because it allowed lay assessors to conclusively determine the amount of compensation. That set the context for the Federal Court to address the scope ofArticle 121(1) in light of the 1988 amendment that had removed the provision vesting “the judicial power of the Federation” in the courts.
In a unanimous decision, the Federal Court held that “the judicial power of the court resides in the Judiciary and no other” under Article 121(1) of the
Constitutional amendments in Malaysia 95 Constitution.[325] The Court struck down the challenged Land Acquisition provision for imposing on the judge a duty to adopt the determination of the lay assessors regarding the compensation amount.[326] This undermined the judicial power of the court enshrined under Article 121(1),[327] wrote Justice Zainun Ali, as it “effectively usurps the power of the court in allowing persons other than the judge to decide on the reference before it.”[328]
It was the first time in two decades that the Malaysian Federal Court had invalidated a federal law.
The Semenyih Jaya decision is significant for at least three reasons. First, it established that judicial power is vested in the courts and can only be exercised by a judicial body. Second, it signaled a clear departure from the self-emasculating position taken by the majority in the Kok Wah Kuan.[329] Third, it gave judicial endorsement to the migration of the basic structure doctrine into the Malaysian constitutional arena.[330]The Semenyih Jaya Court departed from the narrow view of Article 121(1) taken by the Kok Wah Kuan majority, instead affirming Justice Richard Malanjum's dissenting opinion. The Court endorsed the view that the courts are “a separate and independent pillar of the Federal Constitution and not mere agents of the federal legislature,” and that Article 121(1) “is not, and cannot be, the whole and sole repository of the judicial role in this country.”[331] Courts are required “to ensure that there is a ‘check and balance' in the system, including the crucial duty to dispense justice according to law for those who come before them.”
It is worth noting the Federal Court's invocation of judicial authorities from comparative contexts. In discussing the meaning of “the judicial power of the Federation shall be vested,” the Court observed that the phrase had been taken by the framers of the Malaysian Constitution from the Australian Constitution.[332] Australia's Constitution has no express recognition of the separation of power; yet, the neat compartmentalization of the three different organs of government is understood to reflect the separation of powers, and judicial power is recognized as vested in the constitutionally created courts.[333]
The Federal Court in Semenyih Jaya affirmed that judicial power can be vested only in the courts, notwithstanding the amendment to Article 121(1):
[I]t is clear to us that the 1988 amendment had the effect of undermining the judicial power of the Judiciary and impinge on the following features of the Federal Constitution: (i) The doctrine of separation of powers; and (ii) The independence of the Judiciary.[334]
Denouncing the amendment for seeking to remove the judicial power from the judiciary, leaving the judicial institution “effectively suborned to Parliament, with the implication that Parliament became sovereign,”[335] the Court observed that “[t]his result was manifestly inconsistent with the supremacy of the Constitution enshrined in Article 4(1).”
In a ringing endorsement of the basic structure doctrine to the Malaysian Constitution, the Federal Court declared:
It is worthwhile reiterating that Parliament does not have power to amend the Federal Constitution to the effect of undermining the features stated in (i) [the doctrine of separation of powers; and (ii) the independence of the judiciary].[336]
The Court bolstered its approach by referring to earlier decisions that had rejected parliamentary supremacy, citing the 2010 decision of Siravasa Rastah for the proposition that “the fundamental rights guaranteed under Part II [of the Constitution] is part of the basic structure of the Constitution and that Parliament cannot enact laws (including Act amending the Constitution) that violate the basic structure.”[337] It also invoked Kesavananda, the famous authority for the Indian basic structure doctrine, to emphasize that “it is not permissible for the legislature to encroach upon the judicial sphere.”[338]
At the heart of the vision of constitutionalism articulated by the Federal Court in Semenyih Jaya is a conception of judicial power as foundational to the separation of powers:
The Judiciary is thus entrusted with keeping every organ and institution of the State within its legal boundary.
Concomitantly the concept of the independence of the Judiciary is the foundation of the principle of the separation of powers. This is essentially the basis upon which rests the edifice of judicial power. The important concepts of judicial power, judicial independence and the separation of powers are as critical as they are sacrosanct in our constitutional framework.[339]5.4.1.2 Entrenching the basic structure doctrine: Indira Gandhi
Barely a year after Semenyih Jaya, the Malaysian apex court further entrenched the constitutional basic structure doctrine in Indira Gandhi Mutho v Pengarah Jabatan Agama Islam Perak and Others5 In another constitutional landmark, the Federal Court declared the power of judicial review as essential to the role of the courts and inherent to the Malaysian Constitution’s basic structure. By contrast with Semenyih Jaya, which appeared pragmatically concerned with land acquisition compensation, the dispute in this case concerned a highly fraught issue: religion, and the relationship of the civil courts vis-a-vis the religious courts.
Indira Gandhi and her husband were both non-Muslims when they were married. Unbeknown to Indira Gandhi, her husband later converted to Islam, and then obtained certificates of conversion to Islam for their three children, before securing custody orders for the children from the Sharia court. Unable to access the religious courts as a non-Muslim, Indira Gandhi sought an order from the civil court to quash the certificates of conversion and custody orders unilaterally obtained by her ex-husband. She faced the argument that conversion to Islam was a strictly religious matter that was solely within the jurisdiction of the Sharia courts, not the civil courts. Indira Gandhi’s case worked its way through the High Court and Court of Appeal, eventually arriving at the Federal Court after almost a decade.
In a unanimous decision, the Federal Court voided all the certificates of conversion, ruling that the constitutional right to equality requires the consent of both parents for the conversion of minor children.
It held that civil courts have jurisdiction over all constitutional matters even when matters of Islamic law are involved,[340] [341] departing from a pattern over the last two decades of civil courts extensively deferring jurisdiction to the Sharia courts.[342]Of particular significance, the Federal Court declared that the power of judicial review is inherent in the basic structure of the Constitution. The Court’s unanimous opinion underscores the role of the Court: “Inherent in these foundational principles is the role of the Judiciary as the ultimate arbiter of the lawfulness of state action. The power of the courts is a natural and necessary corollary of the rule of law.”[343]
Justice Zainun Ali, writing for the Court as she had in Semenyih Jaya, referred to that earlier decision as having “put beyond a shadow of doubt that judicial power is vested exclusively in the High Courts by virtue of art 121(1).”[344] “Judicial independence and the separation of powers are recognized as features in the basic structure of the Constitution,” she wrote. “The inherent judicial power of the civil courts under art 121(1) is inextricably intertwined with their constitutional role as a check and balance mechanism.”61
Referencing the Indian basic structure doctrine in Kesavananda and Minerva Mills,62 the Malaysian court declared that “the power of judicial review is essential to the constitutional role of the courts, and inherent in the basic structure of the Constitution,” and thus “cannot be abrogated or altered by Parliament by way of a constitutional amendment.”63
It then turned to the Article 121(1A) provision, which provides that the civil courts “shall have no jurisdiction in respect of any matter within the jurisdiction of the Sharia courts.” It's relevant to note that Article 121(1A) had been inserted when the Constitution was amended in 1988 to alter the Article 121(1) provision on judicial power.
The Indira Gandhi Court made clear that the “vital role of the judicial review in the basic structure of the constitution” meant that “judicial power cannot be removed from the civil courts.”64Strikingly, the Federal Court, in effect, nullified Article 121(1A). It ruled that “the amendment inserting clause 1A into Article 121 does not oust the jurisdiction of the civil courts nor does it confer judicial power on the Sharia courts.”65 Civil courts are constitutionally created entities “invested with inherent judicial powers” whereas the Sharia courts are “creatures of state legislation.”66 “More importantly, Parliament does not have the power to make any constitutional amendment to give such an effect,” wrote the Federal Court. “It would be invalid, if not downright repugnant, to the notion of judicial power inherent in the basic structure of the constitution.”67
In a robust affirmation of judicial power, the Federal Court distilled the following principles in crystal-clear terms:
(a) under art 121(1) of the Federal Constitution, judicial power is vested exclusively in the civil High Courts. The jurisdiction and powers of the courts cannot be confined to federal law. The courts will continually and inevitably be engaged in the interpretation and enforcement of all laws that operate in this country and any other source of law recognised by our legal system;
(b) judicial power in particular the power ofjudicial review, is an essential feature of the basic structure of the Constitution;
(c) features in the basic structure of the Constitution cannot be abrogated by Parliament by way of constitutional amendment;
(d) judicial power may not be removed from the High Courts; and
| 61 | ibid | [42]. |
| 62 | ibid | [48], [49]. |
| 63 | ibid | [48]. |
| 64 | ibid | [51]. |
| 65 | ibid | [92]. |
| 66 | Ibid | [80]. |
| 67 | ibid | [92]. |
(e) judicial power may not be conferred upon bodies other than the High Courts, unless such bodies comply with the safeguards provided in...
the Constitution to ensure their independence.[345]The apex court explicitly entrenched the basic structure doctrine in the Malaysian constitutional system:
The powers of judicial review and of constitutional or statutory interpretation are pivotal constituents of the civil courts' judicial power under Article 121(1).... As part of the basic structure of the constitution, it cannot be abrogated from the civil courts or conferred upon the Syariah Courts, whether by constitutional amendment, Act of Parliament or state legislation.[346]
Among the underlying principles on which the Malaysian Constitution is premised, the Court identified “the separation of powers, the rule of law and the protection of minorities.”[347]
The Federal Court in Indira Gandhi affirmed the role of the civil courts as sole repositories of judicial power with the power of judicial review. Indira Gandhi not only reinforced the principles that were established in Semenyih Jaya, but also entrenched the doctrine of judicial review to protect the separation of powers and judicial power as part of the Constitution's basic structure.
5.4.1.3 Affirming the basic structure doctrine: Alma Nudo
In the 2019 case of Alma Nudo Atenza v Public Prosecutor, the Federal Court further affirmed the doctrine of a constitutional basic structure.[348] The Court struck down a statutory provision that allowed a double presumption against accused drug traffickers as disproportionate.
Delivering the judgment for a nine-member Court, Chief Justice Richard Malanjum observed that the “courts can prevent Parliament from destroying the ‘basic structure' of the [Federal Constitution].”[349] Referring to the Semenyih Jaya and Indira Gandhi, the Chief Justice stated that:
while the Federal Constitution does not specifically explicate the doctrine of basic structure, what the doctrine signifies is that a parliamentary enactment is open to scrutiny not only for clear-cut violation of the [Constitution] but also for violation of the doctrine or principles that constitute the constitutional foundations.[350]
In line with those earlier decisions, the Federal Court in Alma Nudo emphasized that the role of the judiciary is “intrinsic to the constitutional order.”[351] “As the bulwark of the Federal Constitution and the rule of law,” wrote the Chief Justice, “it is the duty of the Courts to protect the Federal Constitution from being undermined by the whittling away of the principles upon which it is based.”[352]
5.4.2 An uneven judicial trajectory
5.4.2.1 Maria Chin Abdullah
In January 2021, in a sharply divided decision, the Federal Court revisited the relevance of the basic structure doctrine to Malaysia’s constitutional system in Mana Chin Abdullah v. Director-General of Immigration.[353] The case involved a travel ban imposed by the immigration authorities on Maria Chin, a non-governmental organization leader, which prevented her from leaving Malaysia. A clause in the Immigration Act ousted judicial review of any decision made by the immigration authorities.[354] Maria Chin argued that the travel ban was beyond the power of the immigration authorities and, further, challenged the ouster clause as unconstitutional in light of the principles affirming judicial power and the separation of powers in Semenyih Jaya and Indira Gandhi.
The Federal Court ruled that the travel ban was unlawful on the grounds that the Immigration Director General does not have unfettered discretionary power to impose a travel ban on a citizen.[355] But the Court split 4-3 on the constitutionality of the Immigration Act clause preventing judicial review, an issue that brought to the fore the Article 121(1) provision on judicial power. Two opinions were delivered for the majority and two for the dissent.
Justice Abdul Rahman Sebli, writing one of the majority opinions, held that the ouster clause was consistent with Article 121(1), which provides that courts “shall have such jurisdictions and powers as may be conferred by federal law.” Taking a “literal interpretation” of Article 121(1), Justice Abdul Rahman Sebli found the provision “irresistibly clear and unambiguous.”[356] Since Parliament had determined through the Immigration Act that the courts’ jurisdiction and powers are limited on immigration matters, the courts could not ignore the limitation imposed by the ouster clause.[357] The justice reasoned that the constitutional framers had not viewed that Article 121(1) set up conferral of the court’s jurisdiction and powers by federal law as contrary to the separation of powers.[358]
This majority opinion contains an excursus on the basic structure doctrine that is openly skeptical about the doctrine’s applicability to the Malaysian context: “Article 121(1) of the Federal Constitution cannot be suborned to any doctrine of law, including the Indian doctrine of basic structure and the common law doctrine of separation of powers.”[359] “What poses a problem in the context of a written constitution is the application of the so-called ‘doctrine’ of basic structure,”[360] wrote Justice Abdul Rahman Sebli, “This leads to a situation where a law that is duly passed by Parliament is rendered void for offending the doctrine of separation of powers even where it is not inconsistent with the express terms of the Federal Constitution.”[361] He dismissed the cases of Semenyih Jaya, Indira Gandhi, and Alma Nudo as inapplicable to the present case,[362] observing that the articulation of the basic structure doctrine in those cases was “at best obiter dicta.”[363] In his view, “Semenyih Jaya, Indira Gandhi, and Alma Nudo cannot be read... as deciding that Parliament has no power to amend the Federal Constitution.”[364]
Justice Mary Lim wrote a concurring opinion, which was also joined by the other two of the majority justices.[365] In her view, it was unnecessary to determine the constitutionality of the ouster clause in light of Semenyih Jaya and Indira Gandhi; that question was unnecessary - in her words, “an overkill” - for determining the case.[366] Notably, though, Justice Mary Lim’s opinion expressly acknowledges the basic structure doctrine in Semenyih Jaya:
Where the jurisdiction and power of the court is interfered with in absolute terms as was the case in Semenyih Jaya... the court has no hesitation in striking down such provision as offending the doctrine of basic structure as enshrined within art. 4.[367]
Two opinions were delivered for the three judges in dissent. In her dissent, Chief Justice Tengku Maimun defended the Federal Court’s earlier decisions on judicial power as part of the basic structure:
The principles set forth in Semenyih Jaya and Indira Gandhi are irrefutably clear. no matter how art. 121(1) was or may have been amended, it being a basic feature of the [Federal Constitution], remains to be read as it was prior to the 1988 amendment.
The 1988 amendment had “no effect whatsoever of diminishing or subordinating judicial power to Parliament or declaring Parliament supreme in any way.”[368]
Where does this leave the current state of the basic structure doctrine in Malaysia’s constitutional jurisprudence? For some commentators, the Maria Chin majority opinion heralded the demise of the basic structure doctrine in Malaysia.[369]
Rumors of the doctrine’s death, we think, have been greatly exaggerated.[370] To be sure, there is much in Justice Abdul Rahman Sebli’s opinion that stands at odds with the Federal Court’s holdings in Semenyih Jaya and Indira Gandhi on the Article 121(1) judicial power provision and the constitutional basic structure. On careful inspection, though, the Mana Chin decision does not negate the basic structure doctrine established by the Malaysian Federal Court in Semenyih Jaya, Indira Gandhi, and Alma Nudo.
First, Justice Abdul Rahman Sebli’s opinion was not the only majority judgment in Mana Chin, and his critique of the basic structure doctrine is not shared by most of the judges in the case. As noted earlier, Justice Mary Lim is clear that the Court would have “no hesitation in striking down” a provision that prohibits judicial scrutiny “as offending the doctrine of basic structure,”[371] and she specifically held that the question about the basic structure was not relevant for determining the Mana Chin decision. All four judges in the majority concurred with the opinion of Justice Mary Lim, in addition to that of Justice Abdul Rahman Sebli.[372] All of which is to say, the only common holding shared by the two majority judgments relates solely to the validity of the Immigration Act’s ouster clause, not the basic structure doctrine. And, of course, all three dissenting justices repudiated Justice Abdul Rahman Sebli’s criticisms of the basic structure doctrine. All told: “This leaves Abdul Rahman Sebli FCJ’s judgment alone in its attack on Semenyih Jaya and the basic structure doctrine.”[373]
Second, Justice Abdul Rahman Sebli acknowledges that the precedents of Semenyih Jaya and Indira Gandhi do not apply to Mana Chin; on his own account, then, his opinion’s discussion of the basic structure doctrine is merely obiter. Justice Abdul Rahman Sebli observed that “not only are the facts in Semenyih Jaya and Indira Gandhi different” to the Immigration Act context in Maria Chin, “but the constitutional and/or legal issues raised were also different.”[374] Since Semenyih Jaya and Indira Gandhi were both dismissed as inapplicable to the Maria Chin context, Justice Abdul Rahman Sebli’s views on the constitution’s basic structure appear to be no more than dicta.
More broadly, Maria Chin does not affect the central holdings in Semenyih Jaya and Indira Gandhi establishing that the judicial power of the courts is fundamental to the constitution’s basic structure. The Federal Court held in Semenyih Jaya that the 1988 amendment to Article 121(1) could not remove the courts’ judicial power, which constitutes a fundamental feature of the basic structure. According to Justice Abdul Rahman Sebli, “on the facts of the present case, [there is] no removal of judicial power or conferral of judicial power to a nonjudicial branch;”[375] and so, “where no amendment is made to the Constitution, the doctrine has no application and is irrelevant.”[376] His majority opinion itself acknowledges that Mana Chin does not directly involve any constitutional amendment nor the removal of judicial power from the courts. Indeed, Justice Abdul Rahman Sebli’s opinion expressly accepts that “Semenyih Jaya is authority for the proposition that a non-judicial body cannot bind the superior courts,” and “Indira Gandhi for the proposition that Syariah Courts are not of equal status to the superior civil courts.”[377] It follows, then, that none of the opinions in Maria Chin undermine the central holdings concerning judicial power and the constitution’s basic structure established in Semenyih Jaya and Indira Gandhi.
Viewed against the broader arc of the evolution of the basic structure doctrine in Malaysian constitutional law, Mana Chin might represent a speedbump, but it is hardly an impenetrable roadblock.
5.4.3 The separation of powers, judicial power, and
the basic structure doctrine
With the trilogy of decisions in Semenyih Jaya, Indira Gandhi, and Alma Nudo, the Malaysian Federal Court carved out a role for the courts to protect a constitutional core of fundamental features as beyond the legislative intrusion. A striking aspect about the evolution of the basic structure doctrine in Malaysia is the judicial statecraft exhibited by the Malaysian Federal Court in developing the doctrine through bold, but also prudent, jurisprudence.[378]
The Federal Court developed its assertion of judicial power in careful stages, beginning with its 2017 decision in Semenyih Jaya, in which a unanimous Court established the foundation for the judicial review of constitutional amendments by identifying certain features as fundamental to the constitution and observing that these principles were beyond Parliament’s amendment power.[379] Yet the Court did not expressly invalidate the constitutional amendment in Semenyih Jaya; instead, it read down the 1988 constitutional amendment, in effect nullifying the amendment by interpreting Article 121(1) to mean that judicial power continues to reside in the courts.[380] By refraining from striking down the amendment outright, the Court avoided provoking immediate political backlash while laying down the seeds for a doctrine of an immutable constitutional core.
Then, the following year, the Federal Court in Indira Gandhi powerfully entrenched and enforced the basic structure doctrine, declaring that “the power of judicial review is essential to the constitutional role of the courts and inherent in the basic structure of the Constitution,” which “cannot be abrogated or altered by Parliament by way of a constitutional amendment.”[381] In this unanimous judgment, the Court nullified the Article 121 (1A) constitutional amendment and declared the principles foundational to the Constitution as “the separation of powers, the rule of law, and the protection of minorities.”[382]
Later, in the 2019 case of Alma Nudo, a full bench of nine Federal Court justices reaffirmed the basic structure principles laid down in Semenyih Jaya and Indira Gandhi. The Court referred to both those decisions to reiterate that:
This court has, on several occasions, recognised that the principle of separation of powers, and the power of the ordinary courts to review the legality of State action, are sacrosanct and form part of the basic structure of the [Federal Constitution].
More recently, some judgments reveal divisions on the Federal Court regarding the salience of the basic structure doctrine in the Malaysian constitutional order.[383] Like the Maria Chin majority decision by Justice Abdul Rahman Sebli, these cases show some backtracking about the doctrine’s applicability
Constitutional amendments in Malaysia 105 to Malaysia’s Constitution. Even so, such judgments have far from definitively eroded the foundations of the basic structure doctrine established by the Federal Court’s unanimous decisions in Semenyih Jaya, Indira Gandhi, and Alma Nudo. Those three unanimous decisions - joined by a total of 19 justices - laid down the groundwork for protecting foundational principles of separation of powers and judicial power, which Malaysian courts can build on to shape future constitutional adjudication.
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