Balancing stability and change

LATELY, there have been concer­ted, sustained and, in some ins­tances, anonymous attacks in the media on some members of the judiciary, past and present.

At the outset, it must be stated that respectful and constructive criticism of ideas is crucial to fostering a constructive dialogue towards better solutions.

However, the criticism should be of ideas and not of the people who propose them.

The ongoing – and sometimes bitter – discussion is about the constitutional role of the judiciary in preserving the rule of law and separation of powers. The political legitimacy of an unelected judiciary to review the legality of an elected legislature’s enactments – especially in the matter of constitutional amendments – has come under severe scrutiny.

Today’s column will give an overview of some of the issues surrounding Parliament’s monumental power to rewrite the supreme constitution through periodic amendments. The next column will delve deeper into these issues.

To begin with, let us concede that the Constitution is the supreme law of the land. It is the chart and compass, the sail and the anchor of our nation’s legal endeavours.

Its glittering generalities should not be written in the sands to be washed away by each wave of new parliamentarians blown in by each successive political wind. Its amendments should not be easy.

At the same time, its words should not be carved out in granite so as to obstruct growth and change to accommodate the felt necessities of the times. A balance is needed between stability and change.

The method of amending should not be so difficult as to produce legislative inertia, nor so easy as to weaken seriously the safeguards of the Constitution.

Around the world, several types of limitations exist on the elected Parliament’s power to amend the basic law. These limitations can be broadly classified as substantive or procedural.

However, the distinction bet­ween “substantive” and “procedu­ral” is not always easy to make. Thus, if the power to amend requires the mandatory participa­tion and consent of institutions or authorities outside of Parliament, then the limitations on Parlia­ment’s power are not purely procedural but partly substantive, too.

The most common ways of creating hurdles in the path of hasty amendments are the following:

“Eternity clauses”: In some countries, some core provisions or features of the Constitution are declared to be not amendable at all, even by the elected legislature! The framers, thereby, erect bulwarks against parliamentary majorities and safeguard some core, constitutional values against the power of Parliament. Ger­ma­ny has some such clauses.

Special majorities: Most Cons­ti­tutions require that a Consti­tution Amendment Bill must obtain special majorities of two-thirds or three-fourths in the two Houses. In Malaysia, it is a simple majority for topics under Article 159(4) and a two-thirds majority for all other areas – Article 159(3).

Consent of outside institutions: Many Constitutions require the consent of institutions or persons outside Parliament. Some examples are the consent of state legislatures in the United States of Ame­rica; and consent of the Sup­reme Leader and the Guardian Council in Iran.

In Malaysia, the consent of the Conference of Rulers is needed under Articles 159(5) and 38(4); the consent of the Governors of Sabah and Sarawak is needed under Article 161E. Under Article 2(b), the alteration of the boundaries of a State requires the consent of the legislature of that State and the Conference of Rulers.

Referendum: Ninety-eight coun­tries around the world, inclu­ding Australia and the Philippines, resort in constitutional amendments to mandatory or facultative referendums, whereas 95 other countries do not. Malaysia does not mandate any referendum, but no law forbids a non-binding, ­facultative referendum.

Judicial doctrine of “basic structure”: This innovative but highly controversial judge-made doctrine holds that there are implied limits on Parliament’s power to amend the Constitution.

The “basic structure” or founda­tional principles of the Consti­tution cannot be tampered with. To some, this doctrine has its origins in Germany; to others in Prussia or India. Today, it is adop­ted in some 14 nations including India, Bangladesh, Pakistan, the US and Malaysia. Indian courts recently disavowed it.

The issue is somewhat like this: Suppose a future Parliament by following the required two-thirds majority passes an amendment to delete the entire chapter on fundamental rights from the Consti­tu­tion! Suppose the necessary two-thirds majority is abused to abolish elections and to give to each MP a tenure for life! Suppose all State Assemblies in Peninsular Malaysia are abolished and the federal system is converted into a unitary system.

Is there any safeguard against such extreme use or abuse of amending power? Are there any implied limits on Parliament’s power to destroy “the basic structure” of the Constitution?

This issue has beckoned lawyers and judges in many countries. Our judges had to grapple with it in the case of Government of Kelantan v Government of Malaya (1963). The plaintiff argued that in bringing about the fundamental change of conver­ting Malaya into Malaysia, the consent of Kelantan should have been obtained even though no explicit provision of the Consti­tu­tion required the federal government to consult with or seek the consent of the constituent states of the federation.

Chief Justice Thomson rejected Kelantan’s contention because Article 159 on amendment procedure did not, anywhere, require the consent of the States of the Federation.

Nevertheless, he observed that if Parliament does something “fundamentally revolutionary”, that may require “fulfilment of a condition, which the Constitution itself does not prescribe”.

Though CJ Thomson did not employ the language of “basic structure”, and though his remarks were obiter dicta (made by the way), herein, long before India’s Golak Nath (1971) and Kesavananda (1972), were the Malaysian seeds of the basic structure argument.

However, in many subsequent Malaysian cases, namely Loh Kooi Choon v Government [1977], Phang Chin Hock v PP [1980] 1 MLJ 70 and Mark Koding v PP [1982], our courts rejected the basic structure argument and doubted its relevance to Malaysian constitutional jurisprudence.

The doctrine was also rejected in Singapore in Teo Soh Lung v Minister [1989] and Vincent Cheng v Minister [1990].

The doctrine, however, refuses to die. In 1996, in Faridah Begum Abdullah v Sultan Haji Ahmad [1996], an important issue before the court was whether Article 155 forbids Parliament from enacting a constitutional amendment to Article 182 to permit a foreigner to sue a Malaysian Ruler. One of the five judges, Mohamed Suffian Hashim, held that even if Parlia­ment were to confer the right on a Singapore citizen to sue the Ruler, such conferment was illegal and ultra vires Article 155 unless a similar right is given to Malaysians in Singapore.

There were echoes of the basic structure doctrine here. It stoked the embers of controversy about the much hollowed and hallowed basic structure doctrine.

In the year 2010 onwards, the doctrine of basic structure was given a new lease of life in Malaysia by grounding it under Article 4(1)’s doctrine of constitutional supremacy and not basing it purely on judicial precedent.

A number of sterling judicial decisions, including Semenyih Jaya (2017) and Indira Gandhi (2018), have asserted that though Parliament is armed with the power to amend the constitution, it cannot abuse this power to destroy the fundamental, foundational features and the basic values, ideals and principles of the supreme constitution like judicial review.

The 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 argued that the basic structure doctrine 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 “basic structure” is difficult to define.

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

Emeritus Prof Datuk Dr Shad Saleem Faruqi is principal research fellow at Universiti Malaya.

The views expressed here are the writer’s own.