Restoring constitutional supremacy

  • Reflecting On The Law
  • Thursday, 15 Feb 2018

I AGREE with Datuk Seri Gopal Sri Ram, our distinguished, retired Federal Court judge, that the recent Federal Court decision on the Indira Gandhi case is “probably the most important judgment” in independent Malaysia’s constitutional history.

I believe that the courageous and learned opinions of Tan Sri Zainun Ali and Tan Sri Zulkefli Ahmad Makinuddin do much to restore our Federal Constitution to the pedestal on which it was placed when Malaya began its tryst with destiny, but from which it had slipped in the last few decades.

Basic structure: Among other things, this great verdict consolidates the view that the amendment process cannot be abused to dismantle the “basic structure” of the Constitution which, according to the Federal Court, includes separation of powers, rule of law and protection of minorities. The Consti­tution’s core values are not written in the sand to be washed away by incoming political tides.

Specifically, the power of judicial review cannot be abrogated, altered, removed or transferred to other bodies by constitutional amendment unless these bodies enjoy the safeguards provided to superior courts by Articles 121 to 131A of the Constitution.

Article 121(1A): Of special concern in the Indira case was the power of the superior civil courts to review the exercise of statutory functions by the Registrar of Con­verts under Perak state legislation.

It was held by the apex court that the power of judicial review and of constitutional or statutory interpretation are pivotal constituents of the civil courts’ judicial function under Article 121(1).

The 1988 amendment to Article 121(1A) relating to Syariah courts does not constitute a blanket exclusion of the jurisdiction of civil courts in Islamic law matters if unconstitutionality or illegality is present.

Pros and cons: The doctrine of “unamendability of the basic structure” has beckoned lawyers and judges in many legal systems. There are riveting debates about its pros and cons.

Prominent arguments against the doctrine are that it invents implicit limits on Parliament’s amendatory powers, even though such limits are nowhere explicitly provided for.

It is a blatant piece of judicial legislation. It drags judges into political controversies about what is at the heart of the Constitution. It pits judges against the executive and the legislature. The doctrine is too open-ended because what is “basic structure” is difficult to define.

In favour of the doctrine, it can be said that it provides an insurance against legislative over-exuberance. It safeguards the basic values of the Constitution against the power of transient political majorities.

Suppose a future parliament, by following the required two-thirds majority, abolishes elections and gives to each MP a tenure for life. Is there any safeguard against such abuse of amending power?

The argument that the basic structure is not identifiable is not convincing. In Loh Kooi Choon (1977), Federal Court judge Raja Azlan Shah (later, the Sultan of Perak) identified three concepts as basic to Malaysia – fundamental rights, federal division of powers and separation amongst the executive, legislature and judiciary. The recent cases of Semenyih Jaya (2017) and Indira Gandhi (2018) have identified other pivotal provisions.

History: The basic structure doctrine is believed to have originated in Germany in the writings of Prof Dietrich Conrad. It was affirmed strongly in India in the cases of Keshavananda Bharati v Kerala (1973), Indira Nehru Gandhi v Raj Narain (1975), Minerva Mills v Union of India (1980) and Raja Ram Pal (2007). Bangladesh has adopted the doctrine, as have Turkey, Czechoslo­va­kia, Norway and the United States.

However, the doctrine has been rejected in Singapore in the cases of Teo Soh Lung (1989) and Vincent Cheng (1990).

Our judges had to grapple with it in the case of Government of Kelantan v Government of Malaya (1963). The plaintiff argued that in converting Malaya into Malaysia, the consent of Kelantan should have been obtained, even though no explicit provision of the Constitution so required.

Thomson, C.J. rejected the plaintiff’s contention but observed that if Parliament does something “fundamentally revolutionary”, that may require “fulfilment of a condition which the Constitution itself does not prescribe”. Herein were seeds of the idea that Parliament can amend the Constitution but cannot destroy its basic structure.

Subsequently in Loh Kooi Choon v Government (1977), an amendment to Article 5(4) diminishing an arrestee’s right to production before a magistrate was challenged as an affront to the basic structure of the Constitution.

In Phang Chin Hock v PP (1980), amendments were challenged because they increased the number of appointed senators so drastically as to reduce the indirectly elected “state eenators” to a minority.

In Mark Koding v PP (1982), an amendment to Article 63 was challenged as a violation of the basic structure because, in a departure from all other democratic legislatures, freedom of speech in Parliament was subjected to the law of sedition. All the challenges failed.

The courts held that the amendments did not involve tampering with the basic structure. The courts also doubted the relevance of the basic structure argument to Malay­sia.

But in Faridah Begum Abdullah v Sultan Haji Ahmad (1996), one of the judges held that even if Parliament by constitutional amendment were to confer the right on a Singapore citizen to sue the Malay Rulers, such conferment was illegal under Article 155 unless a similar right was given to Malaysians in Singa­pore.

There were echoes of the basic structure doctrine here. These echoes became louder in Sivarasa Rasiah (2010), Semenyih Jaya (2017) and now Indira Gandhi Mutho (2018).

In the last two cases, the Federal Court held that the vesting of judicial power of the Federation in the civil courts formed part of the basic structure of the Constitution and could not be removed, even by constitutional amendment.

We will have to wait and see whether this admirable constitutional development will survive the test of time. As in life, nothing is settled in the law.

Emeritus Professor Datuk Dr Shad Saleem Faruqi is Tunku Abdul Rahman Professor of Law at Universiti Malaya. The views expressed here are entirely the writer’s own.

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