The potential reach of the basic structure doctrine
5.5.1 Emergency powers and constitutional ouster clauses
What is the potential scope of the basic structure doctrine in Malaysia? This section speculates on the implications of the doctrine by examining constitutional amendment challenges that have already emerged on the horizon.
One challenge involves the constitutional amendment passed in 1981 to the Malaysian Constitution’s Article 150 emergency powers provisions. In 1981, Article 150 was amended with the insertion of a clause that deprived the courts of jurisdiction to determine the validity of a proclamation of emergency and orders of preventive detention. Article 150(8) now provides that the King’s satisfaction that a grave emergency exists “shall be final and conclusive and shall not be challenged or called in question in any court on any ground.”[384] Moreover, “no court shall have jurisdiction to entertain or determine any application, question or proceeding, in whatever form, on any ground,” regarding the validity of a proclamation of emergency or the continued operation of an emergency ordinance. As one of us has argued previously, the width of this constitutionally entrenched ouster clause amounts to an abrogation of the judicial power of the courts: “[T]he new clause (8) has undermined the basic structure of the Constitution as all questions concerning emergency powers are left to the absolute discretion of the Government of the day.”[385]
In January 2021, the King issued a proclamation of emergency, pursuant to Cabinet advice, purportedly to combat the COVID-19 pandemic.[386] The state of emergency was slated to last till August 1, 2021. During this time, an emergency ordinance promulgated under the proclamation suspended the sitting of Parliament and the legislative assemblies of the States.
All of this occurred in the aftermath of the Perikatan Nasional coalition taking over governance in March 2020 after the breakdown of the Pakatan Harapan coalition.
After taking power without an electoral mandate, Prime MinisterMuhyiddin Yasin faced persistent calls to prove that he commanded the support of the majority in Parliament. Critics viewed the suspension of Parliament during this state of emergency as a move to prevent the Prime Minister’s support from being tested on the floor of Parliament.
The emergency proclamation has led to two challenges before the High Court. In response to the first challenge, brought in March 2021 by three elected representatives, the High Court ruled that Article 150(8) precluded judicial review of the King’s emergency proclamation and the enacted ordinances.[387] The second lawsuit brought by opposition leader Anwar Ibrahim challenged the constitutionality of the Prime Minister’s advice to the King to suspend Parliament during the emergency.[388] In April 2021, the High Court rejected Anwar Ibrahim’s application for judicial review, also on the grounds that Article 150(8) effectively precluded judicial review of matters relating to the proclamation of an emergency.[389] Should the Federal Court decide to hear these cases on appeal, the basic structure doctrine will likely be at the forefront of challenges to the validity of the Article 150(8) constitutionally entrenched ouster clauses.
5.5.2 Royal assent as a feature of the Constitution's basic structure?
That’s not all. Another lawsuit brought by Anwar Ibrahim seeks to invalidate the National Security Council Act 2016 as well as the constitutional amendments involving the royal assent to legislation.[390] The National Security Council Act passed in 2016 empowers the Prime Minister, on advice of a national security council, to declare a security area, over which the Prime Minister has the power to deploy security forces. The Malaysian Bar Council has denounced the security law for enabling “the Prime Minister, either unilaterally or through the NSC, to exercise authoritarian executive powers,” adding that “[t]hese powers are in
Constitutional amendments in Malaysia 107 effect emergency powers, but without the need for a proclamation of an emergency under Article 150 of the Federal Constitution.”[391]
One of the grounds on which the National Security Act was challenged is that it was passed without the assent of the King following what are argued to be unconstitutional constitutional amendments.[392] When the Barisan Nasional government tried to pass the National Security Council Bill in 2016, the King did not give his assent to the contentious security bill. Nonetheless, the national security law came into force because of the legislative procedure put in place by constitutional amendments that dispensed with the requirement for royal assent.
As a result of these constitutional amendments, passed in 1983, 1984, and 1994, the Constitution now provides that after the Bill has been submitted to the King and 30 days have elapsed, the bill shall become law “in the like manner as if [the King] had assented thereto.”[393]Thus, the question was whether the National Security Council Act was unconstitutional because it had “become law pursuant to unconstitutional amendments,” on the ground that those amendments violated the basic structure of the Constitution. In other words, the royal assent was argued to constitute a basic feature of the Constitution that cannot be removed by complying with the constitutional amendment process.
In a 5-2 decision delivered in February 2020, the Federal Court declined to answer the question on the constitutionality of the National Security Council Act and the constitutional amendments.[394] The majority ordered the case to be struck out, holding that the questions posed - on the constitutionality of the statute and the constitutional amendment - were abstract and purely academic. The dissenting justices were clear that they would have been prepared to find the statute unconstitutional for violating the Constitution’s Article 149 anti-subversion provisions as well as being a disproportionate restriction on the constitutional right to freedom of movement. But on the basic structure point, Justice David Wong reasoned that the royal assent remains a part of the legislative process as a matter of construction, hence “the question as to the violation of the basic structure of the Constitution does not arise.”[395]
The majority and the dissenting justices in this 2020 decision avoided the question about the validity of the constitutional amendments, thus allowing the Federal Court to navigate out of having to determine whether the royal assent falls within the constitutional basic structure, a minimalist move that appeared prudent.[396] The invocation of the basic structure doctrine with regard to the royal assent is a double-edged sword when appreciated against the backdrop of Malaysian realpolitik.
The constitutional amendments in 1993, 1984, and 1994 arose at a time when then-Prime Minister Mahathir Mohamad was engaged in a convulsive constitutional battle with the Malay rulers after the conduct of some of the Rulers had given rise to concerns that they were exceeding their role as constitutional monarchs;[397] these included reported instances of some Rulers withholding their assent to state legislation because they could not get their way with their state government. Writing in support of applying the basic structure doctrine to the Malaysian constitutional arena, Andrew Harding once remarked that “decisions must be guided by instinct.”[398] Judicial instinct is needed to determine not just when to invoke the doctrine, but also when to avoid doing so.More generally, although it remains to be seen how far the Malaysian apex court will extend the basic structure doctrine in cases to come, it seems apparent that the doctrine will increasingly play a role in future constitutional challenges.
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