Hudud and the basic-structure doctrine

  • Nation
  • Sunday, 27 Apr 2014

NOT many people know about this piece of history of our country. Allow me to recount this so that this passage of our history would not just fade away from the recesses of our memory.

The Malaysia Agreement was signed on July 9, 1963 between the Federation of Malaya, the United Kingdom, Sarawak, North Borneo and Singapore. Under this agreement, Singapore, Sabah and Sarawak would federate with the existing 11 states of the Federation of Malaya to form Malaysia with effect from Sept 16, 1963. That is common knowledge.

What is, however, largely unknown is this. On Sept 10, 1963, six days before the formation of Malaysia, Kelantan sued the Federal Government of Malaya and Tunku Abdul Rahman for, among others, a declaration that the Malaysia Agreement and the Malaysia Act were null and void and not binding on the state.

Kelantan argued that the Malaysia Agreement was invalid because:

i) it violated the 1957 Federation of Malaya Agreement when Malaya was formed and the state agreed to be part of Malaya;

ii) its consent (and that of other states) was never given for the Malaysia Agreement;

iii) the Sultan of Kelantan should be a party to the Agreement;

iv) the Rulers were never consulted;

v) Parliament had no power to legislate over the matter.

To cut a long story short, Chief Justice Thompson, who heard the matter, held that the Malaysia Agreement and Malaysia Act did not in any way contravene the Federal Constitution and therefore they were valid and enforceable.

What is more important about this case is what CJ Thompson said in his judgment:

“In doing these things I cannot see that Parliament went in any way beyond its powers or that it did anything so fundamentally revolutionary as to require fulfilment of a condition which the Constitution itself does not prescribe, that is to say, a condition to the effect that the state of Kelantan or any other state should be consulted” (emphasis mine).

That statement by CJ Thompson lays the basic-structure doctrine in constitutionalism.

Basically, what it means is that notwithstanding the powers of Parliament to amend the Constitution, it can never amend the Constitution in such manner which is so fundamentally revolutionary as to change the basic structure of the Constitution without inviting the fulfilment of “a condition which the constitution itself does not prescribe”.

So, the judge was saying if a proposed amendment is so fundamentally revolutionary, Parliament can’t merely amend the Constitu­tion without fulfilling other conditions which the Constitution itself does not prescribe.

This view is supported by learned authors such as L.A. Sheridan in his book Constitutional Problems in Malaysia: “An Act of Parliament changing the name of the Federation and admitting new States or doing anything that makes the new Federation in a sense something different from the old one, though passed in conformity with the Constitution at the time of its passage, might be challenged if contrary to the Constitution as it originally stood” (emphasis mine).

The basic-structure doctrine also finds support in India in its Supreme Court decision of Kesavananda Bharati v the state of Kerala where it was held that in any country where the constitution is supreme, there must be an implied restriction of the power of the parliament to change the basic structure of the constitution.

With this doctrine in mind, I would submit that any proposed amendment of our Federal Constitution or state constitution to introduce hudud law or to change the criminal judicial system – whether applicable to Muslims only or otherwise – to one which is syariah based would be beyond the power of Parliament or the respective state legislative assembly to entertain or approve.

The change to hudud or syariah laws would undoubtedly change the basic structure of the administration of the criminal justice system which the states and all the people of Malaysia have agreed to be bound by from day one of the federation. Parliament and all the state legislative assemblies therefore have no right or power to so amend the Federal Constitution or their respective state constitution to effect such a fundamentally revolutionary change. – April 9, 2014.

* Acknowledgement: Constitutional Landmark in Malaysia – The First 50 Years 1957-2007, edited by Andrew Harding and H. P. Lee.

> In a recent posting on his Facebook, Art Harun adds: If PAS says they will implement hudud if Pakatan Rakyat wins Putrajaya, they are either lying or they are idiots who do not know the provisions of our Federal Constitution. Or both.

Hudud is a matter concerning or relating to the affairs of Islam and Muslims. Being so, this matter comes within the jurisdiction and purview of the respective state legislative assemblies. The Federal Government and Parliament do not have the power to impose hudud on Malaysia or any of the states.

If PAS wants to implement hudud in Malaysia as a whole, it must therefore take over ALL the states in Malaysia. So, dear PAS, don’t simply tembak.

> Art Harun is lawyer with a special interest in constitutional law and human rights. The views expressed are entirely the writer’s own.

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