ARGUING against automatic citizenship for Malaysian mothers’ overseas-born children, Senior Federal Counsel (SFC) Liew Horng Bin contended that all provisions in Part II of the Federal Constitution (on Fundamental Liberties) and all citizenship provisions of the Federal Constitution are basic features or the basic structure of the Federal Constitution, which cannot be amended.

What is this so-called basic structure doctrine?

Federal Court Judge Nallini Pathmanathan in the case of Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] MLJU 576, which was referred to by the learned SFC, considers the following definition by the former chief justice of Singapore, Chan Sek Keong, as an excellent description of the doctrine:

“The basic structure doctrine is the constitutional principle that the basic features or basic structure of a constitution cannot be destroyed or emasculated by a constitutional amendment duly passed by Parliament in accordance with prescribed procedures.”

The doctrine, it is said, has its origins in India, and subsequently accepted in other jurisdictions. Kesavananda Bharati v State of Kerala (1973) 4 SCC 225 is the landmark Indian Supreme Court decision that is said to have firmly laid down the doctrine.

But the term “basic structure” is nowhere mentioned in the Indian Constitution. Thus, legal scholars refer to Kesavananda as a classic case of judicial activism by the Indian SC.

Now, neither is the term mentioned in the Federal Constitution. Should it be adopted and accepted?

In the case of Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187, Raja Azlan Shah FJ, accepted that several features were essential to the Federal Constitution. However, confronted with Kesavananda, which was decided a mere three years before, and eloquently argued by leading members of the Bar then – that is, Raja Abdul Aziz Addruse and Dr Yaacob Hussain Merican – His Lordship wasn’t one to be unnerved. His Lordship – one of the country’s judicial giants – sat tall and held firm as sumptuous words were said and delivered as follows:

“Whatever may be said of other Constitutions, they are ultimately of little assistance to us because our Constitution now stands in its own right and it is in the end the wording of our Constitution itself that is to be interpreted and applied, and this… can never be overridden by the extraneous principles of other constitutions.

“Each country frames its constitution according to its genius and for the good of its own society. We look at other constitutions to learn from their experiences, and from a desire to see how their progress and wellbeing is ensured by their fundamental law.”

Two years later, Kesavananda was again argued before the Federal Court in the case of Phang Chin Hock v Public Prosecutor [1980] 1 MLJ 70 for the proposition that Parliament could not destroy the basic structure of the Federal Constitution.

Lord President Suffian took the occasion to agree with his brethren judge Raja Azlan Shah FJ in Loh Kooi Choon and considered the differences in the making of the Indian Constitution and the Federal Constitution.

Suffian – another judicial giant – said:

“In India, when the British left they did not leave a full-fledged Constitution; the Indians had to make do with the previous constitutional provisions as very slightly amended. The Indians did not want their Constitution to be a gift from the British. They wanted to write it themselves.

“The (Indian) Constitution was made by a Constituent Assembly not by ordinary mortals… (T)his perhaps… influenced the Indian courts in their view that… there are implied limitations on that power to so amend as to affect fundamental liberties and destroy the basic structure of the Indian Constitution.

“The Indian Constitution contains a preamble. which states quite explicitly that the Constitution was made by the people of India in their Constituent Assembly.

“The Indian Constitution also contains in Part IV ‘directive principles of state policy’ which in 15 articles set out national objectives which it was thought desirable that the State should promote.

“Thus, it is understandable that Indian jurists should infer from the Preamble and Directive Principles ideas and philosophies animating the Indian Constitution and controlling its interpretation so much so that there are limits on the power of the Indian Parliament to amend their Constitution.”

The Federal Constitution, on the other hand, was the fruit of joint Anglo-Malayan efforts and Parliament had no hand in its drafting. Further, it has no preamble and no directive principles of state policy.

Accordingly, there was reluctance to accept the basic structure doctrine propounded and accepted by the Indian courts. Some call the decisions in Loh Kooi Choon and Phang Chin Hock as a rejection of the doctrine. It stood the test of time for some 33 years.

There have since been differing approaches in the decisions of the Federal Court on the doctrine.

Loh Kooi Choon was said to be overruled by the Federal Court through the judgment of Gopal Sri Ram FCJ in the case Sivarasa Rasiah in 2010, which then adopted the doctrine.

In overruling Loh Kooi Choon, one of the reasons given by the learned judge was that Raja Azlan Shah FJ committed an error of law in relying on the pronouncement by Lord Macnagthen in the Vacher & Sons Ltd v London Society of Compositors [1913] AC 107 at p 118, which was made in the context of a country whose Parliament is supreme, unlike Malaysia where the constitution is supreme.

According to Abdul Rahman Sebli FCJ, who delivered the majority judgment in Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 1 MLJ 750) the adoption of the basic structure doctrine by the Federal Court through Sivarasa Rasiah marked the beginning of a sharp turn away from the position held in Loh Kooi Choon.

The most far-reaching implication of the decision is that Parliament has no power by any means whatsoever to amend or to remove any “basic structure” of the Federal Constitution, not even by recourse to article 159.

The adoption of the doctrine was followed in a trilogy of cases – Semenyih Jaya (2017), Indira Gandhi (2018) and Alma Nudo (2019) but rejected in at least two recent Federal Court decisions in Maria Chin (2021) and Goh Leong Yong v ASP Khairul Fairoz bin Rodzuan & Ors [2021] MLJU 1403.

In Maria Chin, Abdul Rahman Sebli FCJ observed:

“Given the change in character of the basic structure doctrine so soon after its inception in Kesavananda, the application of the doctrine in Malaysia has not always been free from difficulty, largely due to the fact that there is no explicit exposition of what constitutes ‘basic structure’ of the Federal Constitution.

“This is not surprising because even among the majority in Kesavananda (the case was decided by a majority of 7–6) the top judges of the Indian apex court had differing opinion on what ‘basic structure’ of the Indian Constitution comprised and this is compounded by the fact that the claim of any particular feature of the constitution to be ‘basic’ is to be determined by the court on a case to case basis.”

Yet, Nallini FCJ asserts in Dhinesh (April, 2022) that the basic structure doctrine has been given full recognition.

Is that so?

SFC Liew Horng Bin, representing the government, has relied on Dhinesh. The saga of the doctrine in Malaysia looks set to continue. – June 27, 2022.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.