PETALING JAYA: A former Malaysian Bar president today hailed the acceptance of the basic structure doctrine as part of Malaysian law, following the Federal Court ruling to set aside the conversion certificates of M Indira Gandhi’s three children.
The basic structure doctrine is an Indian judicial principle that certain basic features in the constitution cannot be altered, even with approval from two-thirds of the members.
One of its most recognisable features is that judicial power be vested in the courts.
Param Cumaraswamy, who had been at the forefront of attempts 40 years ago to persuade judges to accept the doctrine, said he felt vindicated by the judgment.
Param’s efforts at the time were shared by two other presidents, G T S Sidhu and Raja Abdul Aziz Addrusse, who have since passed away.
“The bench then was inclined to believe that it was Parliament that was supreme, not the Federal Constitution,” Param told FMT.
“I am glad that the judges rose to the occasion, asserted what is rightly their constitutional power and restored the supremacy of our constitution,” the 77-year-old added.
The Federal Court’s landmark ruling on the conversion of Indira’s children was made on Jan 29.
The bench, led by Justice Zulkefli Ahmad Makinudin, also ruled that a spouse who has embraced Islam cannot convert minor children without the consent of the non-converting spouse.
In making the ruling, it added that the 1988 amendment to the constitution did not remove the jurisdiction of civil courts to review decisions of public authorities or to interpret laws.
Justice Zainun Ali, who delivered the unanimous judgment, said more importantly, Parliament did not have the power to make any constitutional amendment to vest judicial power in federal laws.
“It would be invalid, if not downright repugnant, to the notion of judicial power inherent in the basic structure of the constitution,” she said.
Param, who was the Bar president when the amendment was passed by Parliament, said the move had resulted in the executive gaining enormous power at the expense of the judiciary.
He said the 142 members of the Dewan Rakyat who voted in favour of the amendment after taking the oath to preserve, protect and defend the constitution, had shown no compunction in destroying one of its basic structures.
Param, who is a former United Nations special rapporteur on the Independence of Judges and Lawyers, said judges too should live up to their judicial oath to protect, preserve and defend the constitution.
“They must see that the basic features are preserved, protect the guaranteed fundamental rights of citizens and defend the supremacy of the constitution,” he said.
Before the constitution was amended, constitutional lawyers attempted to persuade the bench to adopt the principle approved by the Indian Supreme Court in the celebrated 1973 case of Kesavananda Bharati v State of Kerala.
Raja Aziz failed in the case of Loh Kooi Choon v The Government of Malaysia (1977), and Sidhu in the case of Phang Chin Hock v Public Prosecutor (1980).
The principle was given recognition in 2010 by then Federal Court judge Gopal Sri Ram in the case of Sivarasa Rasiah v Badan Peguam Malaysia, but it invited criticism from former chief justice Abdul Hamid Mohamad.
The former top judge took the view that Parliament could amend the constitution as provided under Article 159 (3) and that the court had no business to impose restrictions as this was a violation of the doctrine of separation of powers.
Meanwhile, another former Bar president, Ragunath Kesavan, said the basic structure doctrine in Kesavananda Bharati was approved with a 7-6 majority. It was affirmed in subsequent decisions and acquired widespread acceptance and legitimacy, he added.
“It is part of the law in Bangladesh and South Africa, and now in Malaysia,” he said.
He said the South African government could not abolish the death penalty as provided for under its Criminal Procedure Code due to lack of support from its legislators.
“Following a legal challenge, the constitutional court in 1995 declared the capital punishment unconstitutional as everyone, even the most abominable human being, has a right to life,” he said.
He said the court held that retribution could not be accorded the same weight under the constitution as the right to life and dignity.