The application of ‘basic structure’ jurisprudence in Malaysia FMTNews FMTEng
Recently I received a message seeking my support for a petition on change.org. The petition basically calls for the rejection of the “basic structure” doctrine, which it claims is being increasingly practised by our civil courts when interpreting the Federal Constitution, especially in shariah law matters.
It has been employed by the Indian judiciary as a catalyst to flame and justify judicial activism for striking down constitutional amendments, as, unlike ours, their oath of office does not empower them to “preserve, protect and defend the constitution”. Thus, in the Indian and Malaysian context, Parliament is not supreme and its legislation must not breach constitutional provisions. This is to ensure the existence of checks and balances, the power for which is vested in the judiciary.
However, when it comes to constitutional amendments, the oath of office gives judges constitutional power to strike down the amendment if it breaches any of the constitutional provisions or its framework. This oath of office jurisprudence has been captured in several judgments in the High Court as well as the Court of Appeal. However, to date, the apex court has been shy to endorse this jurisprudence, notwithstanding that leading jurists in Malaysia and overseas have endorsed it.“Social Justice: Constitutional Oath, Rule of Law, And Judicial Review – Malaysian Chapter”, where he stated:
Endorsement of the constitutional oath of office jurisprudence as opposed to basic structure jurisprudence will not give room for critics to argue that basic structure jurisprudence, rejected by legal luminaries, such as former Lord President Suffian Hashim, has been wrongly endorsed by recent decisions of the apex court.
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