From Hamid Sultan Abu Backer
Recently I received a message seeking my support for a petition on change.org. The petition basically calls for the rejection of the “basic structure” doctrine, which it claims is being increasingly practised by our civil courts when interpreting the Federal Constitution, especially in shariah law matters.
My views on the above are as follows.
The debate as to whether the “basic structure” jurisprudence originates from the Federal Constitution has been an ongoing issue for a few decades for different reasons, notwithstanding its recent employment by the Federal Court.
I take the view that this jurisprudence does not originate from the Federal Constitution. Instead, it originates from the “oath of office” jurisprudence, which is the correct constitutional jurisprudence to uphold the rule of law in Malaysia.
Imported from India, the “basic structure” jurisprudence is useful to guide the courts on its constitutional role to protect the essential features of the constitutional framework without completely ignoring the doctrine of separation of powers.
It has been employed by the Indian judiciary as a catalyst to flame and justify judicial activism for striking down constitutional amendments, as, unlike ours, their oath of office does not empower them to “preserve, protect and defend the constitution”.
Judicial activism is an illegal jurisprudence in a country which recognises the separation of powers doctrine such as the United Kingdom, where the judiciary is subservient to legislation as Parliament is supreme.
However, the separation of powers doctrine cannot apply absolutely for the Indian as well as the Malaysian judiciaries as the constitution vests in them the judicial power to strike down legislation or any part of it which is unconstitutional.
Thus, in the Indian and Malaysian context, Parliament is not supreme and its legislation must not breach constitutional provisions. This is to ensure the existence of checks and balances, the power for which is vested in the judiciary.
Constitutional oath jurisprudence in Malaysia is derived from the oath of office taken by judges who swear to “preserve, protect and defend the constitution” without breaching social justice obligations, as mandated in many parts of the constitution, such as in Articles 3, 4, 5, 8,12 and 121.
Thus, a Malaysian judge can demonstrate judicial dynamism in his judgment through compliance with social justice obligations under the constitution, but he cannot move to the arena of judicial activism to defeat Parliament’s legislative role unless the legislation or any part of it breaches the constitution.
However, when it comes to constitutional amendments, the oath of office gives judges constitutional power to strike down the amendment if it breaches any of the constitutional provisions or its framework.
Such an oath is not available to the Indian judiciary, and therefore to protect the constitutional framework as well as social justice obligations, it must by a majority give birth to basic structure jurisprudence which has its own jurisprudential controversies which are still ongoing in India.
Thus, there is no necessity for the Malaysian judiciary to import basic structure jurisprudence to strike out a constitutional amendment or legislation.
This oath of office jurisprudence has been captured in several judgments in the High Court as well as the Court of Appeal. However, to date, the apex court has been shy to endorse this jurisprudence, notwithstanding that leading jurists in Malaysia and overseas have endorsed it.
The late Justice Gopal Sri Ram endorsed it in his review of my research paper “Social Justice: Constitutional Oath, Rule of Law, And Judicial Review – Malaysian Chapter”, where he stated:
“If the core ideology advanced by the writer is adopted by the courts, the scope of judicial review, now perceived as a disabled creature with a thousand tongues and no teeth, may well be restored to its proper place as an effective check against the exercise of arbitrary power.”
The oath of office of constitutional functionaries in Malaysia absolutely protects the basic structure of the constitution. In India the oath of constitutional functionaries does not protect basic structure of the constitution and thus the judiciary gave birth to a jurisprudence which English judges were not familiar with.
Endorsement of the constitutional oath of office jurisprudence as opposed to basic structure jurisprudence will not give room for critics to argue that basic structure jurisprudence, rejected by legal luminaries, such as former Lord President Suffian Hashim, has been wrongly endorsed by recent decisions of the apex court.
Why do we need basic structure jurisprudence for judges to preserve, protect and defend the constitution when their oath of office imposes on them an obligation to do so?
The fulfilment of the oath of office jurisprudence would require the legal industry itself to be extremely proficient in law, impartial, independent, honest, ethical, and assist the court without fear or favour.
Furthermore, the legal industry must ensure judges are not bogged down by an unnecessary case backlog, or burdened with commercial and civil matters that can be best handled by subject-matter experts through affordable arbitration.
Courts should be allowed to focus on criminal, public interest and social justice matters as provided for in the constitution.
Hamid Sultan Abu Backer is a retired judge of the Court of Appeal, a professor of arbitration and dispute resolution at MAHSA University, and an FMT reader.
The views expressed are those of the writer and do not necessarily reflect those of FMT.