Basic Structure Doctrine And The Constitution

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Let it be said at the outset that disagreement over the correct interpretation of the law is lauded, even encouraged, in a democratic society.
However, such disagreement must be well-reasoned, even-handed and made in good faith. It is unfortunate that former chief justice Abdul Hamid Mohamad’s recent article fails and falters on all fronts.
Hamid’s central claim is that the Basic Structure Doctrine (BSD) is a foreign doctrine, adopted wholesale from the Indians, with no link whatsoever to the Malaysian Constitution. This is a grave error.
It has to be said that, contrary to his assertion, Malaysia did not import the doctrine from either India or Germany or elsewhere.
This is because our Federal Constitution had encapsulated this doctrine in Article 4 (1), which unequivocally states: “This Constitution is the supreme law of the Federation and any law passed after Merdeka Day that is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.”
One may well ask: What exactly is the BSD in a Constitution? In a nutshell, it recognises that there are certain core features of a nation’s Constitution which are so essential that they cannot be revoked or dissolved even by procedurally permissible amendments.
In other words, Article 4(1) of the Federal Constitution embodies the doctrine of constitutional supremacy. It provides that the Constitution is supreme and, to that extent, cannot be amended in respect of fundamental aspects of the Constitution that characterise the foundational principle of how Malaysia functions as a democracy.
This is the content and context of Article 4 (1) of the Federal Constitution. This concept, when certain basic features can never be destroyed, is contained in the constitutions of other jurisdictions such as Germany, Canada, Kenya, Bangladesh, etc. It does not mean that we have copied them - it merely means that we share with them a legal concept which is expressly provided for in our Federal Constitution.
Under constitutional supremacy, the courts serve as guardians of constitutional limits. The judiciary’s duty is to ensure all laws comply with the Constitution.
The Doctrine of Constitutional Supremacy arises from this principle. The doctrine does not violate Article 159 (amendment powers). This is because Parliament’s power to amend the Constitution exists only so long as amendments do not destroy its basic structure. This aligns with the original intent to uphold the Constitution as the highest law, ensuring core national principles remain immune to arbitrary alteration.
However, in light of the attempt by some people to confuse it, it is time to revisit history.
Historical context
The doctrine of the basic structure of the Constitution is not common law in origin. It is a Prussian doctrine formulated and enforced by the courts in Germany. Though German in origin, India is the single largest exporter of the doctrine.
The BSD introduced in Keshavananda Bharati v State of Kerala [1973] 4SCC 225 serves as a “scapegoat” to prevent the Indian Parliament from amending the Constitution in ways that destroy its foundational framework, such as democracy, secularism, and the rule of law. In a thin majority, it was held that the amending power, though constituent, could not be utilised to enact a law which offended the basic structure of the Constitution.
Thus, in India, the BSD is not merely procedural but a principle safeguarding the core pillars of national sovereignty: the separation of powers, fundamental rights, and the sanctity of the Constitution - some of the Indian Constitution’s “basic features”.
Rejecting this doctrine would have granted the Indian Parliament unbridled power to amend India’s Constitution arbitrarily, even erasing its fundamental features so long as it was passed with the requisite majority in Parliament.
So much for the Indian position.
The Malaysia position
Not long after Keshavananda Bharati, a similar challenge was taken in Malaysia in Loh Kooi Choon v Govt of Malaysia [1977] 2 MLJ 187. The appeal was heard by a bench of three judges comprising Justices Ali, Raja Azlan Shah (as His Majesty then was), and Wan Suleiman FJJ.
After judgment was reserved and before delivery, Ali FJ passed away. Of the remaining judges, Raja Azlan Shah FJ held that the Keshavananda Bharati did not apply and instead another case, Shankari Prasad, did. His Lordship held that the federal law mentioned in Article 159 (1) did not fall within the ambit of the phrase “any law passed after Merdeka Day” appearing in Article 4(1). His Lordship also held that the “law” in Article 4(1) referred to ordinary statutes passed in the exercise of Parliament’s plenary power. It did not refer to a law that amends the Constitution.
In his judgment, Wan Suleiman FJ dealt with the case procedurally, holding that since the power to enact the impugned law had been challenged, the case should have been brought procedurally under Article 4 (3) and (4).
So that leaves the lone view of Raja Azlan Shah FJ to prevail.
In Phang Chin Hock v PP [1980] 1 MLJ 70, the Federal Court speaking through Suffian LP, upheld the lone judgment on the point in Loh Kooi Choon. Suffian LP held that Keshavananda Bharati did not apply. Nevertheless, the learned Lord President declined to address the specific question as to whether the amendment violated the basic structure of the Federal Constitution. In fact, His Lordship went on to state that it was “unnecessary to express our view on the question whether or not Parliament has power to so amend our Constitution as to destroy its basic structure, because the Court had found that the amendments complained of in that case had not destroyed the basic structure of the Federal Constitution.”
Clearly, both Loh Kooi Choon and Phang Chin Hock had obliquely acknowledged the existence of the essential basic features in the Federal Constitution.
Palace of Justice, PutrajayaThe turbulent years of the 1980s saw the tussle between the executive and the judiciary culminating in the removal of the Lord President Salleh Abbas and five other Supreme Court judges.
Of vital importance in this period (1988) was the amendment made to Article 121 (1) of the Federal Constitution. The original text of Article 121 (1) of the Federal Constitution vested judicial power of the Federation in a Supreme Court and such inferior courts as may be provided by Federal Law.
The 1988 amendment substituted this with the phrase “that the courts shall have such jurisdiction and power as may be conferred by or under federal law”. The intended purpose of the amendment by the then government was to curtail the judiciary’s role such that its powers are limited to only what is prescribed by Parliament.
The 1988 amendment was to have a profound effect on the separation of powers and the rule of law in Malaysia.
One of the major cases that was decided in the wake of the 1988 amendment was the case of PP V Kok Wah Kuan [2007] 1 MLJ, comprising a formidable bench of judges, Justices Hamid Mohamad, Alaudin Sherif, Zaki Azmi, and Fairuz FJJ. They spoke for the majority, while Richard Malanjum FJ delivered a minority judgment.
The majority speaking through Hamid Mohamad FJ laboured under the ignominy of the 1988 amendment, where His Lordship observed that:
“After the amendment, there is no longer a specific provision declaring that the judicial power of the Federation shall be vested in the two High Courts. What it means is that there is no longer a declaration that judicial power of the Federation as the term was understood prior to the then amendment vests in the two High Courts. If we want to know the jurisdiction and powers of the two High Courts we will have to look at the federal law.” [Emphasis added]
In Kok Wah Kuan v PP, Malanjum gave a blistering dissent. His Lordship observed that:
“I do not think that as a result of the amendment, our courts have now become servile agents of a federal Act of Parliament and that the courts are only to perform mechanically any command or bidding of a federal law.” [Emphasis added]
It must be remembered that the courts, especially the Superior Courts of this country, are a separate and independent pillar of the Federal Constitution and not mere agents of the Federal Legislature. Secondly, the Federal Courts resoundingly rejected the concept of Parliamentary supremacy and reaffirmed the need for judicial independence. It was clearly unimpressed with the amendments, holding that it has “suborned the judiciary to Parliament” and has allowed the “executive a fair amount of influence over the matter of the jurisdiction of the High Court”.
Then, after decades of being in the twilight of the 1988 amendment, a sliver of light came through in Siva Rasa and Badan Peguam Malaya [2010] 2 MLJ 333, where the basic structure doctrine resurfaced, in which Gopal FJ inter alia said that:
“Further, it is clear from the way in which the Federal Constitution is constructed, 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. Suffice to say that the rights guaranteed by Part II, which are enforceable in the courts, form part of the basic structure of the Federal Constitution…”
The question is: should any nation allow the Constitution to become a “blank slate” subject to its political whims?
In commenting on India’s Keshavananda Bharati, former chief justice of Singapore, Chan Sek Keong, in the 34th Sultan Azlan Shah lecture, said that:
“What began as a dispute before the courts and the government over property rights evolved into a battle for the soul of the Constitution.”
The decision in Sivarasa Rasiah and the explicit dissent from Malanjum in Kok Wah Kuan spurred the judiciary to galvanise and consolidate itself.
In Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat [2017] 3 MLJ 561, the concept of the BSD was reinvigorated by the Federal Court. First, it made clear its preference for the dissenting judgment of Malanjum in Kok Wah Kuan. This effectively means that the majority judgment by Hamid Mohamad FJ in Kok Wah Kuan is no longer good law.
Semenyih Jaya in clear terms reiterated that “the judiciary is entrusted with keeping every organ and institution of the state within its legal boundary. Concomitantly, the concept of independence of the judiciary is the foundation of the principles of separation of powers. This is essentially the basis upon which rests the edifice of judicial power.”
In Semenyih Jaya, the Federal Court held inter alia that the concepts of judicial power, judicial independence, and the separation of powers are “as critical as they are sacrosanct in our constitutional framework”, implying that these form the basic structure of the Federal Constitution. The court went on to hold that the 1988 Amendment to the Federal Constitution impinged on the two basic features of the doctrine of separation of powers and the independence of the judiciary.
It is unfortunate that Hamid was dismissive of the judicial process and legal developments in Malaysia. With respect, Hamid has failed to account for the broader jurisprudential evolution of the Doctrine of Constitutional Supremacy in Malaysia. While it is conceptually the same as India’s “Basic Structure Doctrine”, it is fundamentally different - yet entirely applicable in Malaysia.
Initial rulings by the apex court (pre-2017 cases) rejected the BSD as foreign. Post 2017, the courts adopted it, and after 2021, this concept was refined and accepted as it is housed in Article 4(1). Thus, Sivarasa Rasiah and Semenyih Jaya are part of a constitutional interpretive evolution deeply discussed in multiple Federal Court cases.
It is important to remind ourselves of what Sultan Azlan Shah, our former Lord President and respected jurist, who decided in Loh Kooi Choon, said, in reference to the amendment to Article 121 (1), in his 2004 book titled “The Role of Constitutional Rulers and the Judiciary Revisited” at page 385, His Lordship said:
“The precise reason for this amendment remains unclear. But the consequences may be severe. With this amendment, it would appear that the judicial power is no longer vested in the courts, and more importantly, the Higher Courts have been stripped of their inherent jurisdiction. Their powers are now only to be derived from any federal law that may be passed by Parliament. The effect of this change may have far-reaching consequences on the separation of powers doctrine under the Federal Constitution.” [Emphasis added]
Former Perak ruler and Lord President of the Federal Court, the late Sultan Azlan Muhibbuddin ShahThere can be little argument that the 1988 Amendment certainly had the effect of rendering the judiciary seemingly subservient to the will of Parliament. Nothing can be more antithetical to the doctrine of the separation of powers and the rule of law than this. As so clearly expressed by His Highness, Sultan Azlan Shah himself, for it violated the heart, soul, and spirit of our Constitution.
As His Lordship noted in Loh Kooi Choon, while foreign constitutions may offer insights, Malaysia’s Constitution stands on its own. Its provisions must be interpreted within their own context, free from external principles. And in this, Article 4(1) looms large.
Malanjum’s position in relation to Article 121 (1), in Kok Wah Kuan was eventually upheld in Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak [2018] 1 MLJ 545, where the Apex Court identified Article 4(1) of the Federal Constitution, reinforcing the basic structure doctrine in Malaysia. The pronouncement in Sivarasa Rasiah, Semenyih Jaya, and Indira Gandhi on the basic structure was warmly received by Malanjum in the Federal Court case of Alma Nudo Atenza v PP [2019] 4 MLJ 1.
A key aspect of constitutional supremacy is the principle of separation of powers and the guarantee of judicial independence. This principle underpins the rule of law in Malaysia. In Dhinesh Tanaphil, the Federal Court reaffirmed that judicial independence is constitutionally protected, despite past attempts to curtail it through amendments.
Thus, in every single judgment by our courts, since Sivarasa Rasiah, including those that are dissents, repeated reference is made to Article 4(1), which contains the equivalent of the BSD in Malaysia. This was seen in a landmark dissent delivered by the learned Chief Justice Tengku Maimun Tuan Mat in Zaidi Kanapiah v ASP Khairul Fairoz bin Redzuan [2021] 3 MLJ 759, where Her Ladyship observed that:
“[94] The above analysis leads me to the following conclusion. In Malaysia, we have the doctrine of constitutional supremacy as ingrained in Article 4(1). While the Indian Courts had to create and apply the BSD primarily by reference to the preamble of their written constitution, ours (the doctrine of constitutional supremacy) was bequeathed to us by our founding fathers in Article 4(1). In this regard, it is my respectful view that there is not even a need for us to adopt what is categorised as an Indian concept of the BSD. To say that our Federal Constitution does not have any basic structure or basic concept is incorrect. We have at least three basic concepts, as stated by Raja Azlan Shah FJ in Loh Kooi Choon. As per the advice of this court in Sivarasa Rasiah… As to what exactly the Malaysian doctrine details, our courts should be free to develop it on the facts of each case.
“[95] In other words, we need not look elsewhere to know that basic structure or basic concept, whatever term one may want to use, is engraved within the very fabric of our Article 4(1). For the purposes of these appeals, it is sufficient to know that caught within the definition of constitutional supremacy and the essence of the Federal Constitution is the notion of separation of powers. Any attempt by federal law to override or undermine this concept is inconsistent with the Federal Constitution, and thus any federal law to the effect that seeks to do that is void.”
Again there can be debate about correct legal interpretation, but to suggest as Hamid did without basis, that scores of Malaysian judges, in invoking Article 4(1) of our Federal Constitution, instead adopted the Indian doctrine of basic structure is entirely misguided and displays a curious lack of comprehension of the magnitude of Article 4(1) which embodies the doctrine of constitutional supremacy. It provides that our constitution is supreme and, to that extent, cannot be amended in respect of fundamental aspects of the Constitution that characterise the foundational principles of how Malaysia functions as a democracy.
Baseless allegations of a covert plot
Hamid also alleges some covert plot by the chief justice to make the so-called BSD part of Malaysian law, by placing judges who agree with Her Ladyship in positions to support the alleged importation of the BSD.
Hamid insinuated that the chief justice resorted to “judicial panel selection” to overturn the majority ruling in Maria Chin Abdullah v Ketua Pengarah Imigresen [2021] 1 MLJ 750.
The 4-3 majority in Maria Chin did not invalidate the BSD, it reflected legitimate debate over its scope. Dissenting opinions in this case exemplified healthy judicial dynamics. Judges colluding to predetermine court outcomes is a grave allegation that crosses the line of decency and probity. It is further exacerbated coming from a top judge to another. Any right-minded person would inform that this seriously undermines and compromises judicial integrity, which all judges, past and present, should strive to conserve and defend, rather than castigate and offend.
Censures such as this obscure genuine discourse and erode public trust in the judiciary’s independence and integrity.
It is the judiciary’s duty to interpret the Constitution dynamically in line with contemporary needs, provided it does not violate legal boundaries. Hamid’s criticism neglects to reference a broader body of cases (such as Alma Nudo Atenza v Kerajaan Malaysia and Dhinesh Tanaphil). The judiciary cannot be shackled by outdated precedents if new interpretations are necessary to uphold the Constitution’s spirit, especially if the concept has been obscured since Merdeka Day.
Former chief justice Abdul Hamid MohamadSpurious allegations in relation to Dhinesh Tanaphil
Moreover, Hamid asserts that the decision in Dhinesh was a preconceived scheme to establish the chief justice’s preferred position in law. In particular, he says this is so because the court in Dhinesh requested counsel to submit on the constitutionality of section 15B of the Prevention of Crime Act (Poca) and whether it “violates Act 4(1) read together with Act 121(1) of the Federal Court [28].
However, a reading of the judgment discloses that what was at issue in Dhinesh’s case was the constitutional validity of an ouster clause contained in section 15B of Poca, precluding the court from examining the substantive merits of the detainee’s detention. It was necessary to invoke Article 4(1) in conjunction with the powers of the High Court as delineated in both Article 4(1) and Article 121(1).
The court had to ask for submissions from counsel so it was able to assess the validity of a statute under our written Constitution, in particular Article 4(1), read with Article 121(1).
Second, and more importantly, it is important to understand that the court was constitutionally and legally required to ask the parties to submit on that issue. And this is fundamental in a country which subscribes to the doctrine of constitutional supremacy.
This fundamental point appears to have been ignored in Kok Wah Kuan, where Hamid held that the judiciary is bound to comply with all laws passed by Parliament by reason of the amendment to the Federal Constitution in 1988.
His understanding is that the effect of the amendment was to render the judiciary subordinate to Parliament. However, in so concluding, His Lordship appears to have entirely overlooked Article 4(1). This may explain why he considers unacceptable the right to retain fundamental features of the Federal Constitution, as invoking the BSD from India rather than comprehending that this “doctrine” is within Article 4(1) itself.
Put simply, if the court in Dhinesh did not ask the parties to submit on the Article 4(1) and Article 121 issue and did not consider it, which is indeed what Hamid implies the court should have done, the judges in that case would have been abdicating their constitutional duty to uphold the Constitution and betraying their oath of office to Malaysia “to preserve, protect and defend its Constitution” (Sixth Schedule of Federal Constitution).
Erroneous interpretation of Anjum Kardari
Hamid relies on the Indian doctrine of Anjum Kardari to say Malaysia should reverse the course in its recognition of the BSD.
Firstly, Anjum Kardari still explicitly recognises that the BSD is an intrinsic part of the Indian Constitution - all it says is that the BSD is applicable only to declare constitutional amendments invalid and not ordinary law when specific provisions of the Indian Constitution are invoked. However, the BSD is very much alive and relevant in India till today.
In his article, Hamid’s view is that Malaysia should reject the BSD based on the Indian Supreme Court’s decision in Anjum Kardari v Union of India. The former chief justice argues that this doctrine has caused “damage” in India for over 50 years and that Malaysia should revert to the legal position prior to its adoption. This argument suffers from conceptual and contextual flaw that requires clarification.
This is because in Anjum Kardari, the Indian Supreme Court examined the validity of an ordinary statute (the Uttar Pradesh Madarsa Education Act 2004). It did not examine a constitutional amendment. Justice Chandrachud’s ruling is that “a statute can only be struck down if it violates Part II [Fundamental Rights] or exceeds legislative competence, aligns with existing principles.” The BSD was irrelevant to existing principles. The BSD was irrelevant here because the case did not involve a constitutional amendment.
The opinion put forth by Hamid suggests that the Indian Supreme Court’s decision in Anjum Kardari has rejected or diminished the significance of the BSD is misleading. But the decision in Anjum Kardari did not invalidate the BSD; instead, it reinforced it by emphasising that challenges to legislation must be rooted in specific constitutional provisions.
Indeed, Hamid’s primary issue with the BSD is its alleged use to declare constitutional amendments void - a power the Indian Courts still expressly reserve for themselves. However, in Malaysia, the courts utilise Article 4(1) and not the Indian BSD to test the constitutionality of statutes. In any event, the decision in Anjum Kardari as minimising the application of the BSD to ordinary legislation has been roundly criticised by academics, lawyers, and judges alike.
Secondly, Anjum Kardari is not an authority for the proposition that the Indian BSD has no application whatsoever to ordinary legislation. To reiterate, what Justice Chandrachud in Anjum Kardari says, if one challenges the validity of a statute for violation of the basic structure such as the principle of secularism in India, it must be shown that the statute violates provisions of the constitution pertaining to secularisation and not the principle of secularism alone (Anjum, [46] and [55]).
This is precisely what the Malaysian courts have been doing in their application of Article 4(1). In every instance, the Federal Court has expressly invoked a specific Article of the Federal Constitution as having been contravened before amending or striking out the impugned provision. On this, P Nallini FCJ’s dissent in Maria Chin is instructive. Her Ladyship inquired:
“[322] Did the legislature remove any part of the judicial power of the High Court by virtue of its amendment more specifically… And the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under Federal Law.
“[323] Again, for the reasons cited above, the answer must be that it did not and could not. The primary reason remains the entrenched substantive right of review in Article 4(1) of the Federal Constitution, which serves to ensure that the Constitution remains supreme.
“[325] Again, it is emphasised that the constitutional power of review subsists to protect the supremacy of the Constitution, not to allow for judicial supremacy. To that extent, it is a fundamental feature or part of the basic structure of the Federal Constitution and cannot be so amended. As such, judicial power can never be ‘unbridled’ or ‘limitless’ as seems to be suggested by the AGC. The jurisdiction and powers of the judiciary are circumscribed by the Federal Constitution.
“[326] If the 1988 constitutional amendment is construed as having the effect of abrogating or diminishing or removing the constitutional power of review, which subsists to ensure the supremacy of the constitution, it is void, as Article 4(1) of the Federal Constitution comprises a part of the basic structure of the Constitution.”
Federal Court judge Nallini PathmanathanIt is important to recall that one of the times Article 4(1), the uniquely Malaysian interpretation of the BSD, has been used in Malaysia to declare a statute invalid, is in the context of ouster clauses. Ouster clauses, put simply are provisions in statutes that say courts cannot review the constitutionality and substance of decisions made by the executive (see Section 15B of Poca in Dhinesh, for example); it restricts courts to only reviewing the procedural non-compliance with statutes, e.g. if a statute requires the filing a report in 10 days but it takes 15.
Reverting to Anjum Kardari, the application of the Indian BSD to ordinary legislation that purports to oust the court’s jurisdiction is the exact exception made in Anjum; in other words, Anjum Kardari explicitly says that the Indian BSD may be applied to legislation purportedly made under the Ninth Schedule of the Indian Constitution. The Ninth Schedule in the Indian Constitution sets out laws that it claims are immune to any judicial scrutiny (end of [55]).
In other words, the Malaysian line of case law on Article 4(1) is entirely compatible and in accordance with Anjum Kardari. More importantly, however, it is entirely unclear why Hamid, who vehemently protests what he views as reliance on foreign law, now suggests that the courts should consider changing course because of something a foreign court did.
Injurious consequence and effect on the rule of law index
Since 2016 until now, Malaysia has improved on all major rule of law and judicial independence indices; in 2023, Malaysia ranked 55th out of 142, being among the minority of countries whose rankings improved in that year - a significant 23-place improvement from 2016. It is clear that the standing and independence of our judiciary have vastly increased in the very time Hamid spuriously claims that members of the judiciary covertly colluded to manufacture the outcomes they sought.
Indeed, the application of Article 4(1) is linked to Malaysia’s adherence to the rule of law.
By reason of Article 4(1), many important aspects of our Constitution are entrenched. These aspects, for example, inter alia, include:
(i)Article 3, which provides that “Islam is the religion of the Federation, but other religions may be practised in peace and harmony in any part of the Federation.”
Suppose a constitutional amendment is one day passed to remove this constitutional provision, and in its place, put Christianity or Hinduism as the religion of the Federation. Would it be construed as a valid constitutional amendment?
To those who support Article 4(1) and the BSD, the existing Article 3 is very much part of our basic structure and thus such amendments would be unconstitutional and void, because the separation of powers and democracy form an unamendable part of our supreme Constitution. Thus, the BSD will prevent this from happening. It therefore safeguards the Federal Constitution rather than destroying it. [Emphasis added]
Another basic structure would be the special position of the Malays under Article 153. Suppose a new government comes in and attempts to amend Article 153 to abolish it altogether. It would be interesting to countenance the response of the naysayers of the basic features of the Constitution then.
Thus, if serious constitutional amendments are made each time there is a change in government, there could theoretically be serious inroads into the Federal Constitution, and consequently, grave repercussions will be imposed on the nation.
It has to be borne in mind that Article 4(1) does not prevent the amendment of the Constitution to meet the needs of the nation - provided such amendments do not undermine the unique features of our Constitution, namely democracy, separation of powers, and the rule of law as contained in specific Articles of our Federal Constitution.
Conclusion
The suggestion that the numerous judges who sit at every level of our courts have been hoodwinked or coerced into agreeing with the application of Article 4(1), which Hamid mistakenly perceives to be an importation of the Indian Basic Structure Doctrine, has no basis whatsoever in fact.
It is a huge disservice to the documented independence and strength of our judiciary that he so claims, with no basis other than plain conjecture.
Malaysia’s application of its own Doctrine of Constitutional Supremacy, similar to the BSD, has been evolutionary, not revolutionary. It is not applied arbitrarily to challenge every amendment, but serves as a guiding principle when core constitutional frameworks are threatened. Here, the doctrine is applied judiciously, in accordance with Malaysia’s constitutional needs and constraints.
Thus, through cases like Sivarasa Rasiah, Semenyih Jaya, and Alma Nudo v Dhinesh Tanaphil, the Federal Court has never sought to usurp Parliamentary power. Instead, its focus is to safeguard core constitutional tenets, the supremacy of the Constitution, the rule of law, fundamental liberties, separation of powers, and parliamentary democracy from erosion.
Parliament continues to function within its legitimate dimensions, legislating for public welfare. The Doctrine of Constitutional Supremacy merely deliberates boundaries to ensure Parliament does not violate its own oath to uphold the Constitution.
Under this doctrine, both parliamentary and judicial powers are respected in their respective spheres. Parliament as the lawmaker, the judiciary as the Constitution’s ultimate interpreter.
This embodies the checks and balances enshrined in our constitutional framework, which warrants that our country exists and survives on an even keel. - Mkini
ZAINUN ALI is a former federal court judge.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.

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