Oath Of Office A Testament To Our Founding Fathers Genius

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 Unlike the ‘basic structure’ doctrine, the oath of office jurisprudence has constitutional grounding.
Recently, a constitutional debate of immense significance has been taking place among local legal experts in the media. Retired Federal Court judges have also chimed in, forcefully expressing divergent views on the applicability of what is known as the “basic structure” doctrine.
This doctrine posits that a nation’s constitution contains fundamental elements that cannot be altered by its legislature. However, the doctrine presents a challenge—its core components are not explicitly defined but determined by the courts on a case-by-case basis.
The question of the constitutionality of such judicial intervention has been the subject of much debate even in India, where the doctrine originated from, with some jurists advocating its legitimacy and others viewing it as an overreach of judicial power.
However, in my view, a crucial element appears missing from this debate, To date, no one has addressed the implications of the oath of office and its role in safeguarding the constitutional rights of all Malaysians.
The oath of office is a constitutional mandate requiring public officials to “preserve, protect and defend” the constitution. That includes upholding Article 4(1) which provides for the supremacy of the constitution.
For that reason, it is unnecessary and jurisprudentially erroneous to rely on the basic structure doctrine to uphold the constitution.
Unlike the basic structure doctrine, which lacks clear constitutional grounding, the oath of office is explicitly provided for in the Federal Constitution and carries a sacred and binding obligation, particularly for senior members of all pillars of government who take the oath when appointed to hold public office.
Given its constitutional foundation, one must question why the legal fraternity is shunning the oath of office jurisprudence, instead favouring the basic structure doctrine, which has been criticised by distinguished judges.
The oath of office jurisprudence is essential in maintaining constitutional integrity and social trust. In Malaysia, ignoring this principle risks constitutional instability and racial discord.
Two key provisions of the Federal Constitution underscore the need to respect non-negotiable rights.
Article 3 guarantees freedom of religion for non-Muslims—a fundamental right that cannot be denied or obstructed by legislative agencies.
Article 153, on the other hand, prioritises Malays in government appointments while recognising the inclusion of non-Muslims—another unassailable constitutional safeguard.
Thus, arguments suggesting that non-Muslims cannot freely practice their faith or that only Malays should be appointed to key government positions are constitutionally flawed.
In cases of constitutional breaches, the courts are empowered—through oath of office jurisprudence—to provide legal remedies, eliminating any need to imply the existence of a basic constitutional structure to rectify legislative misconduct.
For instance, some in the legal profession argue that a Malay-majority government can amend the constitution’s non-negotiable rights through Article 159’s amendment procedures, thereby validating basic structure jurisprudence. However, this claim is technically untenable.
The core elements of the constitution cannot be revised without support from non-Muslims in East Malaysia, nor can economic progress be sustained without the participation of Chinese and Indian stakeholders. In any case, the Malay rulers are custodians of the constitution and entrusted with protecting the rights of all Malaysians.
Malaysia’s founding fathers demonstrated exceptional foresight by incorporating oath of office into the constitution to uphold non-negotiable rights and ensure accountability, transparency, and good governance.
Upon taking their oath, all members of the three branches of government—the executive, legislature and judiciary—are constitutionally obliged to protect these rights.
When taking my own oath as a judicial commissioner and presiding over native land rights cases in East Malaysia, it became evident to me that parliamentary supremacy, as practiced in England, did not apply in Malaysia and could not be relied on to defend entrenched constitutional rights.
Similarly, the basic structure doctrine was unusable, having been rejected by Malaysian courts.
Recognising the legal gaps, I pioneered the oath of office jurisprudence— developing its principles through various judgments handed down in the High Court and the Court of Appeal, and eventually refining it in the case of Aluma Mark Chinoso (2020).
To ensure informed engagement from both Malaysian and international legal scholars, I published a booklet, making it freely available to all Malaysians.
Esteemed jurists, including the late Gopal Sri Ram and a German judge, provided positive reviews, with no substantive challenges to its applicability—unlike the criticisms levelled at the basic structure doctrine.
A jurisprudence that has been outlawed or dismissed by the courts cannot be reintroduced through opinions in the media or post-retirement advocacy. The only legitimate pathway to reconsidering such a principle is through a full bench of the Federal Court, ensuring diverse judicial perspectives are recorded and debated.
In 1973, India’s Supreme Court had in the case of Kesavananda Bharati gave the basic structure jurisprudence—introduced several years earlier—serious reconsideration, yielding only to a slim 7-6 majority.
Despite this, even today, Indian courts remain hesitant to fully endorse the doctrine, wary of the implications of granting the courts supremacy over Parliament.
When it comes to ruling on substantial constitutional matters it is the duty of all Federal Court judges to write separate opinions to demonstrate the existence of a collective judicial mind.
Only then can we assess the merits of the basic structure doctrine vis-à-vis the oath of office jurisprudence that I am advocating.
Unfortunately, such practices have diminished in Malaysia since the 2018 election. It is my hope that the Federal Court under the next chief justice will revive this practice.
Ultimately, all Malaysians must respect the Federal Constitution as written.
Those who have taken the prescribed oath under the constitution must adhere to their solemn promise to preserve, protect and defend it to ensure a stable and harmonious society. - FMT
The views expressed are those of the writer and do not necessarily reflect those of MMKtT.

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