The underlying context of the BSD in Malaysia

The jurisprudence of BSD, with its attendant notion of implicit unamendability under the doctrine of unconstitutional constitutional amendment, constitutes one of the most significant constitutional developments in Malaysia over the last decade. Like the development of any other legal doctrine, the content, meaning, nature, and scope of the BSD in Malaysia are inextricably shaped by the peculiar context within which it arises and operates.

This collection of articles provides the general context necessary for readers to grasp the genesis of the BSD in Malaysia: historically, in chapter 3 by Kevin Tan (constitution-making and amendment history); doctrinally, in chapter 4 by Shad Saleem Faruqi (constitutional provisions and pre-BSD case law relating to amendments); and politically, in chapter 1 by Rueban Balasubramaniam (the ethnocratic authoritarian political paradigm informing the pre-BSD judicial postures that are deferential to executive power).

Crucially, most chapters argue that the raison d’être of the BSD in Malaysia is the 1988 constitutional amendment to article 121(1), which removed explicit reference to judicial power being vested in the courts, purporting to dilute, if not eliminate, judicial power.Footnote ¹ Against this backdrop, scholars within this collection and elsewhere observe that the judicial invocation of the BSD is a response to the 1988 amendment, aiming at restoring judicial power and reasserting the courts’ position as a co-equal branch of government (chapters 6 and 13).Footnote ²

The desirability of the BSD’s application in Malaysia

Despite largely agreeing on the harmful effects of the article 121(1) amendment, scholars in this book diverge on the normative desirability of the BSD, at least regarding its judicial application in Malaysia.

Emphasising that the BSD and judicial power are ‘intrinsically linked’, Wilson Tay accepts that the ‘unique variant’ of the ‘Malaysian BSD’ - which ‘reads down’ rather than strikes down the article 121(1) amendment - as applied by the courts, is necessary and inevitable, especially in the aftermath of the 1988 amendment, despite noting that it could be ‘reinterpreted differently’ by a future judicial panel and thus ‘resume its highly detrimental effects on the constitutional judicial power’ (pp 160-169).

Echoing Tay’s position are scholars who defend the legitimacy of the judicial application of BSD: Kevin Tan (through a historical exegesis on the legitimacy of the constitution-making exercise and the preservation of framers’ intent through BSD; pp 57-71, 87-89); Shad Saleem Faruqi (through a doctrinal analysis of the necessity of BSD in light of lacklustre pre-BSD case law against legislative overreach; pp 101-112); and Rehan Abeyratne (by characterising the Malaysian Federal Court’s approach to BSD as ‘judicial self-preservation’ as opposed to ‘judicial self-dealing’ seen in other Asian jurisdictions; pp 261, 274-279).

Contrary to Tay and other scholars’ cautiously optimistic tone, Rueban Balasubramaniam and Benjamin Ong critically evaluate the necessity and desirability of applying the BSD in Malaysia, particularly on the grounds of theoretical instability and doctrinal incoherence respectively.

Balasubramaniam rejects the use of BSD that is derived from the constituent power theory, arguing that it is ‘theoretically unstable’ and could be ‘reconfigured by judges sympathetic to authoritarian values to immunise such values from legal and political challenge’ (pp 11-12).Footnote ³ Instead, Balasubramaniam advocates ‘circular legalism’: the judicial endorsement of unwritten ‘structural and substantive’ principles of legality as the ‘normative foundations’ of the Constitution, conferring legitimacy to strike down amendments. Balasubramaniam argues that ‘circular legalism’ is better-suited than the BSD to fend off abusive amendments and executive domination in Malaysia (pp 11- 38).

Unlike Balasubramaniam who rejects the BSD theory and application altogether, Ong does not object to the BSD in principle, but to its application in practice. Ong problematises the doctrinal coherence of the BSD as applied by the Malaysian courts. Ong argues that in many cases, the BSD was entangled with other legal issues where the merits of those legal issues are parasitic upon the judicial acceptance/rejection of the BSD. In those cases, ‘basic structure’ merely serves as a ‘buzzword’, distracting and hindering discussion of ‘other deep constitutional issues’ (pp 119-138). As such, Ong notes that the BSD may be neither necessary nor sufficient. Ong instead suggests that the courts should straddle the false dichotomy of pro- or anti-BSD and focus on ‘the truly salient issues’, without invoking BSD in ways that obscure the real issues at hand (pp 139-142).

Engaging with the BSD literature in Malaysia

As Kevin Tan and HP Lee acknowledge, the adoption of the BSD in Malaysia is not without controversies (p 7). Some BSD cases contain socio-political contingencies arising from the complex interplay between law and religion, where the role of Islam in the public sphere remains a social, political, and legal fault line.Footnote ⁴

This book’s context-sensitive approach shows that the rigorous legal analysis of the Malaysian constitutional jurisprudence cannot be purely theoretical or doctrinal, to the extent that it is detached from constitutional reality.Footnote ⁵ The same applies to comparing the Malaysian BSD with the constitutional unamendability doctrine in other jurisdictions: context matters.Footnote ⁶

This collection offers an ideal starting point for comparative lawyers interested in contemporary Malaysian constitutional practice. Its theme is broad, and it extends beyond traditional doctrinal scholarship by incorporating contextual inputs from eminent political scientists and commentators. James Chin explains how the establishment of Malaysia in 1963 (by Malaya, Sabah, Sarawak, and Singapore) influenced the political content, meaning, and significance of the BSD (chapter 7). Wong Chin Huat details how the enactment of anti-hopping constitutional provisions in 2022 did not normatively alter the basic structure of Malaysia’s political system, but instead filled the constitutional lacunae on provisions concerning political parties (chapter 10). This echoes Andrew Harding’s argument that any democratic amendment to improve the government structure, generally, should not be foiled by invoking the BSD (chapter 2).

Part III of this volume offers valuable comparative insights. Rehan Abeyratne compares the evolution of the Malaysian BSD with other Asian jurisdictions and tentatively infers that ‘Malaysia’s experience with the BSD is most analogous to that of Pakistan’, where its ‘salient features doctrine’ similarly reads down rather than strikes down amendments (chapter 12). HP Lee and Andrew Foster demonstrate how Australian jurisprudence on judicial power informs, and may even fortify, the development of the BSD in Malaysia (chapter 13). Erin Delaney further explores how the BSD’s functional principles, particularly its attendant ‘commitments to democracy and the rule of law’, can guard against ‘abusive constitutionalism’ in jurisdictions practising ‘uncodified constitutionalism’ such as the United Kingdom (chapter 11).Footnote ⁷ These contributions make a welcome addition to the global scholarship of constitutional unamendability.Footnote ⁸

While comprehensive in many respects, the collection leaves many issues underexamined. One such issue is the judicial application of the BSD and the accompanying socio-political context in the constitutional interpretation of article 121(1A) − inserted by the 1988 amendment −purporting to exclude the jurisdiction of civil courts over Syariah courts. As Tew notes, the Malaysian Federal Court in the 2018 Indira Gandhi case sought to ‘interpretively nullify’ article 121(1A) to reassert the civil courts’ constitutional supervisory role by using the BSD.Footnote ⁹ Nonetheless, subsequent cases involving article 121(1A) demonstrate varying degrees of application of the BSD, despite invoking arguments on the federal constitutional structure in Malaysia.Footnote ¹⁰ This is a space warranting further in-depth scholarly interrogation, given the sui generis federal-civil/state-syariah constitutional arrangements and the ongoing contestation of the public role of Islam, which perpetually dominates the socio-political discourse in Malaysia.Footnote ¹¹

Another underexplored dimension is the interplay between the institutional context and the development of BSD. The jurisprudential leadership of Justice Zainun Ali, then Chief Justice Tengku Maimun and Justice Nallini Pathmanathan, was undeniably instrumental in the doctrinal consolidation and entrenchment of the Malaysian BSD.Footnote ¹² Nevertheless, there are altogether nineteen judges who contributed to the joint intellectual enterprise in developing the BSD jurisprudence in six cases from 2017 to 2024, and all of these cases were unanimous.Footnote ¹³ Examining the pivotal role of institutional factors, such as institutional leadership, judicial unanimity and judicial independence, in light of the fraught religio-political context in Malaysia, would enrich our understanding of the BSD as applied by the courts.Footnote ¹⁴

Within this collection, there is also room for refinements on both descriptive and normative fronts. While many scholars posit the uncertainty of the BSD’s future application in Malaysia (Ong, pp 119-120, 141-142; Tay, p 169; Ho, p 199; Abeyratne, pp 278-279), it may be worthwhile to first establish the current position of the BSD within the constitutional landscape. Dissecting the Malaysian BSD’s developmental trajectory using a multi-stage analysis, which examines the BSD’s evolution in different stages from inception to entrenchment, may offer a more accurate and up-to-date descriptive account of the BSD.Footnote ¹⁵ Using such an analysis, Tew and I have observed that the contemporary Malaysian BSD - anchored in the constitutional supremacy framework enshrined in article 4(1)—is now firmly embedded within the Malaysian constitutional jurisprudence.Footnote ¹⁶

Normatively, the use of history to construct constitutional narratives buttressing the legitimacy of the judicial application of BSD, which Kevin Tan advances in chapter 3, poses two risks. First, constitutional history can be used normatively to serve both liberal and illiberal ends.Footnote ¹⁷ Justifying and couching the BSD in historical terms may entrench liberal values (such as multicultural values embodied in the multiethnic ‘consociational collaboration’ in nation-building). However, it may also risk ossifying certain illiberal values that Tan convincingly criticises (pp 87-89). For instance, the open-textured nature of the terms of reference for the constitution-making commission could permit authoritarian-leaning judges to ‘reconfigure’ these terms to entrench authoritarian norms, as Balasubramaniam warns (pp 11-12). In practice, this approach risks allowing unprincipled judges to scour historical records for evidence favouring certain constitutional values that they selectively choose to entrench.

This is not to suggest that we should refrain from using history in constitutional construction. We should, however, use it with caution. Indeed, a better approach to using history, as Mohd Nazim Ganti Shaari proposes in chapter 9, is to critically assess the purpose of historically embedded constitutional narratives with a cui bono analysis (‘who benefits and for whose interests’), and to construe them in line with contemporary notions of democracy. Such an approach would ‘discern the true nature within’ these narratives and thus enable a more robust understanding of Malaysian constitutional history, preventing us from falling into the trap of ‘historical revisionism’ (pp 203-218).

These risks are also apparent in Balasubramaniam’s proposition for ‘circular legalism’ as an alternative to the constituent power theory animating the BSD (chapter 1). In this approach, the uncodified ‘structural and substantive’ principles of legality - which Balasubramaniam characterises as ‘the normative foundations of the Malaysian Constitution’ - are implicit within the legal order and necessarily vague (pp 32-38). Therefore, their content and meaning are subject to the interpretive discretion of the judges and vulnerable to being ‘reconfigured’ into illiberal values, which Balasubramaniam cautions against.

Nevertheless, in the 2022 case of Dhinesh Tanaphll, which has been regarded as the ‘judicial renaissance’ of the BSD, the Federal Court invoked the constituent power theory as the theoretical foundation of constitutionalism embedded within article 4(1), the constitutional supremacy clause of the Malaysian Federal Constitution (pp 119, 138, 189, 197).Footnote ¹⁸ This interpretation effectively qualifies, if not contradicts, Balasubramaniam’s observation that the constituent power theory merely ‘appears as an ancillary adjunct to the major arguments developed in that judgment,’ since article 4(1) - with its ‘normative elements’ of constitutionalism - essentially forms the constitutional basis of the Malaysian BSD, as Dhinesh unequivocally held (p 38, footnote 101).Footnote ¹⁹

Overall, this impressive collection constitutes a timely and significant contribution to academic scholarship, offering balanced and nuanced insights into the BSD in Malaysia. Given that the constitutional unamendability doctrine is one of the most consequential constitutional developments in recent years, not only in Malaysia but also regionally and globally, this book has the potential to resonate with readers both within Malaysia and beyond.