Debating on the doctrine of basic structure

AFTER an extended break, I have returned to penning this column.

In the past decade, we have witnessed a judicial renaissance that started with the Federal Court's decision in Sivarasa Rasiah v Badan Peguam Malaysia & Anor where Justice Gopal Sri Ram (as he then was), speaking for the court, introduced the "basic structure" doctrine into our body of constitutional law.

What is the basic structure doctrine?

The basic structure doctrine finds its genesis in the Indian Supreme Court decision of Keshavananda Bharati v State of Kerala where the court stated, monumentally, that the Indian Constitution cannot be amended in a way that threatens or negates its basic structure.

Then one might ask, what is the basic structure of the Indian Constitution or any constitution for that matter.

To paraphrase Justice Gopal in Sivarasah,"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."

Justice Zainun Ali (as she then was) further refined Malaysia's approach to the basic structure doctrine in the decision of the Federal Court in Semenyih Jaya v Pentadbir Tanah Hulu Langat which was a seminal decision because the Federal Court ruled that Section 40D of the Land Acquisition Act was unconstitutional because it usurped the power of the judges.

The court also observed that any act by Parliament to limit and oust the courts' power (amendment to Article 121(1) of the Federal Constitution) to review decisions of the Executive judicially is not harmonious with the basic structure of the Federal Constitution.

That being said, it is not the first time the courts in Malaysia have examined the constitutionality of an act of parliament. There is a long tradition of the courts playing the role of keeping the executive and legislature in check, however, to a varying degree.

To digress a little, the curtailment of judicial power was as a result of former prime minister Tun Dr Mahathir Mohamad's run-in with the judiciary in 1988 that led to the dismissal of the late Tun Salleh Abbas as Lord President.

Dr Mahathir, in a 1986 interview with Time magazine, remarked as follows about the judiciary and made no qualms that he wanted a pliant judiciary: "Although you passed a law with a certain thing in mind, we think that your mind is wrong, and we want to give our interpretation... If we disagree, the courts will say 'we will interpret your disagreement'. If we go along, we are going to lose our power of legislation, we know exactly what we want to do, but once we do it, it is interpreted in a different way. If we find out that a court always throws us out on its interpretation, if it interprets contrary to why we made the law, then we will have to find a way of producing a law that will have to be interpreted according to our wish."

Then Opposition leader Lim Kit Siang then commenced contempt proceedings against Dr Mahathir. Even though Kit Siang failed, the then Supreme Court, speaking through the late Tun Salleh, said as follows: "Viewed objectively and dispassionately and in proper perspective, the excerpt complained of appears to be an articulation of the Executive's frustration in not being able to achieve its objects in matters where the intervention of the courts has been sought to some avail, and the way the position is expressed, perhaps somewhat injudiciously in that it may not inconceivably well be open to misconstructions, does not amount to an attack on the courts as to constitute a contempt, but only stems, in our view, from a misconception of the role of the courts."

These remarks made Dr Mahathir very angry and put into motion a chain of events that led to the dismissal of Tun Salleh and two other Supreme Court judges.

There is universal agreement that the courts were never the same again until the resurgence of judicial assertiveness in the past decade.

After Semenyih Jaya, the Federal Court again spoke through Justice Zainun in the case of Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and reaffirmed the legal position in Semenyih Jaya and asserted that judicial power rests with the courts and Parliament cannot take it away or limit it.

However, a change of heart seems to have taken place recently as the Federal Court, in a majority judgment in Marina Chin v Director-General of Immigration, reverted the pre-Semenyih Jaya position that judicial power of the courts can be curtailed by Parliament, including the limiting judicial review of executive actions.

The Chief Justice, joined by two other judges, delivered powerful dissents along the lines of the famous dissent of the late English judge, Lord Atkin in Liversidge v Anderson that eventually became part of English common law.

There is no universal agreement as to the applicability of the basic structure doctrine. Prudent constitutional scholars see the philosophy as extreme judicial activism that goes against established democratic norms because they believe that Legislature, being the body that directly represents the people, must have unfettered power to amend any laws, including the Constitution, so long as they do so by adhering to settled legal procedure.

However, progressive-minded scholars and lawyers see the basic structure doctrine as a bulwark against Executive and Legislative access.

One example is the infamous Nuremberg Laws that established the legal code for the extermination of the Jews by Nazi Germany during World War II. Hence, to a question whether the legal process can be amended to allow such acts, the answer is clearly no!

The basic structure doctrine is in place to prevent such madness that can occur when despots are in control of the government.

The Indian Supreme Court in Keshavananda Bharati introduced this creative legal concept to prevent then Indian Prime Minister Indira Gandhi from abusing the Indian Constitution.

Just under two weeks ago, Prime Minister Tan Sri Muhyiddin Yassin, during his address to the nation, made an important announcement that somehow has been lost in this pressing debate about the state of emergency to combat the Covid-19 pandemic; the PM said he would not interfere in the judicial process and the courts are free to dispense justice as it sees fit.

I believe this is the most unambiguous indication yet from the executive that the courts must act without fear and favour and in doing so must assert itself within our constitutional structure by keeping in mind judges do not make the law, they interpret them.

"Judges are like umpires. Umpires don't make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire," according to John Roberts, Chief Justice of the United States Supreme Court.