UNRAVELLING THE BASIC STRUCTURE DOCTRINE IN MALAYSIA

Abstract

In simplest terms, a constitution of a nation sets out the form of government, the limits of government and the goals for exercise of governmental power. Being a country’s foundational charter delineating its structural framework, it should be a ‘living document’ ie something that is able to adapt and change to remain ever relevant with the ‘changing circumstances, needs and aspirations of a nation and its people’. In Malaysia, the Federal Constitution provides for a mechanism to amend itself, to keep up with the evolution of time. These powers of amendment are vested solely with the Malaysian Parliament. However, in recent times, there has been raging an extremely intriguing battle within the highest echelons of the Malaysian Judiciary on the invisible limitations on the powers of the Malaysian Parliament to amend the Federal Constitution. This invisible limitation has come to be known as the ‘basic structure doctrine’. In a nutshell, what this doctrine entails is that there are covert limitations on Parliament’s powers to amend the Federal Constitution, if those amendments result in the ‘basic structure’ of the Federal Constitution being destroyed. This article intends to seek the meaning of a ‘basic structure’ of a constitution, what this means in the context of the Malaysian Federal Constitution, how the Malaysian Judiciary has dealt with this issue, and the future of the basic structure doctrine in Malaysia.