The ‘Meta-Constitution’

Tew's proposals are intended to respond to the fact that, in Malaysia, there is a fragile democracy. Several related facts speak to this fragility. First, two centuries of British colonial rule followed by decades of ethnocratic rule by a single-party, UMNO, a Malay nationalist party committed to the ethnocratic doctrine of ‘Malay Dominance,’ has produced a political culture that has entrenched an ethnocratic political paradigm.

Second, Parliament has been made a mere rubber-stamp to the executive, thus allowing the ruling government under the country's Westminster model of government – where government is appointed from the ruling party in Parliament – to dominate Parliament and to enact any legislation almost wholly unopposed.

Third, the legal Constitution has also been vulnerable to easy and abusive constitutional amendments designed to undermine constitutional controls on state power. Constitutional amendments generally require a supermajority in Parliament and since UMNO has nearly always held the required two-thirds majority, it has been able to amend the Constitution more or less at its choosing.Footnote ⁹

Fourth, as Tew notes, the Malaysian courts have generally been very deferential to government and have not interpreted constitutional controls on state power to effectively check government. As I detail later, when judges tried to do so there was a significant backlash, so judges have returned to a deferential stance, thereby making courts a relatively ineffective check on government. These facts combine to entrench ethno-authoritarian rule and mean that the ideal of constitutional democracy has not found meaningful expression despite a legal Constitution that speaks to that ideal.

As we shall see, Tew's response to this scenario is to carve out a role for the Malaysian courts on the prescription that judges should develop the doctrine of constitutional supremacy by taking seriously the legally supreme status of the written Constitution. But because the legal Constitution has been vulnerable to abusive amendments and because judges have been too deferential to government, the pillar of her argument is that judges should give up a deferential posture and develop constitutional ‘meta-norms’ or what I will simply refer to as the ‘meta-Constitution’, comprising an unamendable core or ‘basic structure’.Footnote ¹⁰ The reason for this focus presumably is that the ‘meta-Constitution’ is not vulnerable to the vagaries of authoritarian politics and therefore offers judges a more secure basis for defending cherished values associated with the ideal of constitutional democracy.

Constitutional history is important to Tew's view of the ‘meta-Constitution,’ so let me briefly explain her position in relation to this history before explicating her views about an unamendable constitutional core, or ‘basic structure’. Constitutional history is germane, because Tew is a constitutional Originalist who thinks that the Malaysian Constitution should be interpreted according to the historical intentions of its Framers. However, she is not wedded to a narrow Originalist perspective that focuses on the psychological beliefs and expectations of the Framers. Rather, she relies on Jack Balkin's theory of ‘Framework Originalism’, where the constitutional history surrounding the formation of the written Constitution is treated as evidence of a relatively open-ended ‘constitutional plan’ about the operative form of government. Balkin thinks this plan should be redeemed over time through processes of ‘constitutional construction’.Footnote ¹¹ The subsequent development of the constitutional plan could take any number of directions but should not stray from the basic form of government evidenced by constitutional history.

The conceptual and normative basis to Balkin's idea of Framework Originalism is the idea of ‘popular sovereignty’.Footnote ¹² As he explains, ‘popular sovereignty is not only central to the creation of the written framework, it also underwrites the construction built on top of the framework that flesh it out over time’.Footnote ¹³ Balkin believes that on this account, the activity of constitutional redemption and construction where citizens come to view the constitutional project as inter-generational constitutes the Constitution as both ‘higher law' and ‘our law’ of ‘the People’.Footnote ¹⁴ For Balkin, the tasks of constitutional redemption are primarily a matter of ordinary politics, thereby making his theory a kind of ‘popular constitutionalism’. This focus on popular politics is appropriate because the conceptual premise of Balkin's approach is the idea of ‘constituent power’; that is, the absolute political authority of the People to determine the form of government and to select a legal Constitution.Footnote ¹⁵

Tew ultimately departs from Balkin, because she does not believe politics should be the primary determinant of how to redeem the constitutional plan in Malaysia but that it is up to judges to assert what they believe as an appropriate constitutional direction. For now, the point to note is that Tew adapts Balkin's approach to the Malaysian context and argues that the Framers set out an ‘overarching architecture for constitutional governance, with room for various branches of government and the people to engage in constitutional construction. At the same time, the constitution's original framework encapsulates a core of fundamental elements that lie at the heart of the constitutional project.’Footnote ¹⁶ Here, Tew ascribes to the constitution-making process ‘local legitimacy’,Footnote ¹⁷ and asserts that such legitimacy derives from ‘the history of the nation's independence’ from British colonialism and is ‘built on a social contract negotiated among the communal groups in a pluralistic society’.Footnote ¹⁸

Keeping in mind that Balkin's theory of Framework Originalism is rooted in the idea of ‘constituent power’, Tew's rendering of Malaysian constitutional history is an attempt to secure a historical basis to the claim that the constituent power expressing the will of the People suggests that they have chosen constitutional democracy as the operative form of government. Hence, her reference to the idea of a ‘social contract’ is a reference to the widely held view in the Malaysian context that the Framers of the Constitution had entered into a social-political agreement defining the form of government and the terms of citizenship.Footnote ¹⁹ Importantly, the social contract both precedes and is subsequently enshrined in the legal Constitution. And it is widely believed that the social contract forms part of the constitutional basic structure and is therefore immune from constitutional amendment.Footnote ²⁰ Therefore, Tew's argument appears to be that the social contract broadly defines the content of the ‘meta-Constitution’ and expresses the will of the People in the exercise of their constituent power, which, importantly, is unamendable.

Tew's tacit reliance on the idea of constituent power cannot be read as a claim of strict historical fact. Unlike the Indian Constitution, which was created by a constituent assembly, the Malaysian Constitution was formulated by a group of foreign jurists headed by the British Law Lord, Lord Reid, that consulted with local elites and segments of the local population. The better reading is that Tew tacitly relies on the idea of constituent power as a conceptual stipulation backed by a loose historical grounding to capture the post-colonial significance of the Constitution as founded on a democratic will of the People, a stipulation needed to establish the normative priority of an unamendable constitutional basic structure or ‘meta-Constitution’.

That this is the appropriate interpretation emerges more clearly when we consider that Tew heavily relies on Yaniv Roznai's analyses of the problem of unconstitutional constitutional amendments and attempts by courts around the world to control this problem.Footnote ²¹ Following Roznai, she argues that Malaysian judges should embrace a technique he calls ‘foundational structural interpretation’ to identify the features of the basic structure in the Malaysian Constitution.Footnote ²² In explaining this technique, Roznai ascribes the normative significance of an unamendable constitutional structure to ‘the constitution's foundational substance.’ Roznai explains that foundational structuralism assumes that the Constitution ‘is not the mere formal existence of the document.’Footnote ²³ He elaborates that there are basic ‘political-philosophical’ principles that form the Constitution's ‘essence or spirit’ such that the Constitution is ‘no longer the same’ if these principles are undermined.Footnote ²⁴ In light of these considerations, Roznai invokes what he calls the ‘delegation theory’, whereby a distinction exists between the people as ‘holders of the constitution-making power and those constitutional organs to which they delegate an amending authority.’Footnote ²⁵ Therefore, fundamental questions about the polity remain in the hands of the People who are the ‘appropriate holders of the constitution making power.’Footnote ²⁶

It is at this stage that Schmitt enters the picture, since Roznai's arguments are taken from a constitutional perspective that he expressly acknowledges as being most famously developed by Schmitt. Schmitt seeks to defend a critical distance between what he called the ‘absolute’ Constitution that embodies the will of the People and the ‘relative’ Constitution, comprising detailed constitutional provisions and the constitutional law.Footnote ²⁷ The former is the product of an exercise of constituent power exercised by the People. In this connection, Schmitt is a strong proponent of the idea that there is an ‘external’ political Constitution that operates as a higher ‘law above the law’ that therefore controls the meaning of a subsequently enacted legal Constitution. Likewise, Roznai leverages the same distinction to ground a theory of unconstitutional constitutional amendments that should govern how judges apply limits to a legislature's power to enact constitutional amendments. According to this theory, the power of constitutional amendment is merely a ‘secondary’ constituent power because it is housed in a legal Constitution and is therefore subordinate to a prior and ‘primary’ constituent power exercised by the People. Hence, when judges articulate and defend limits to constitutional amendment, they are in effect invoking the ‘absolute’ or prior ‘external’ Constitution as a check on Parliament.

The ‘external’ Constitution is the political ‘meta-Constitution’ that comprises the load-bearing pillar to Tew's arguments. Vicariously through Roznai, Tew follows Schmitt in also trying to create critical distance between the ‘meta-Constitution’ and the legal Constitution. Since the latter is vulnerable to abusive amendments, her thinking is that the former will be a more secure basis from which to defend constitutional democracy. As I will show, the attempt to create such distance means the foundational premise to Tew's position about constitutional legitimacy and constitutional interpretation by judges will be mainly defined by the conceptual terrain of sociology and politics, not the terrain of the rule of law or legality that typically informs constitutional interpretation. Such terrain turns out to be very problematic for the defence of constitutional democracy in Malaysia's ethno-authoritarian context. But to see why Tew and those sympathetic to her project are led to develop a conception of the judicial role grounded in mainly social and political terrain, and why this is problematic, one has to first briefly appreciate how Schmitt's constitutional perspective are part of an authoritarian political logic.

Schmittian Political Logic

Constitutional democracy is a form of government that generally aspires to allow for politics between groups that may disagree about the ethical and political identity of the state by affirming that each citizen is subject to the equal protection of the rule of law and has a democratic right to political participation. Political majorities are not politically or legally entitled to dominate political minorities. Therefore, governmental power is typically divided according to a principle of separation of powers and, if there is a written Constitution, there is typically a constitutional bill of rights enforceable by an independent judiciary. A crucial premise behind constitutional democracy is the possibility of pluralistic politics, where disagreeing groups can nevertheless engage in collective decision-making that results in democratically legitimate law.Footnote ²⁸

By contrast, Schmittian political logic is shaped by an apocalyptic view of politics defined by an existential battle between groups defined by a fateful ‘friend/enemy’ distinction.Footnote ²⁹ The ‘friend/enemy’ distinction defines ‘the political’ relation where the former consists of a socially homogeneous entity. Schmitt does not specify any marker of homogeneity (these could be race, religion, culture, class, etc). What matters is that the ‘political’ is an ‘intense’ form of political association where the group must be willing to engage in mortal combat to assert its identity against an existential ‘other’ who is the negation of that identity. Schmitt is thus an anti-pluralist.

In his view, the possibility of stable social order and therefore the normal operation of the rule of law requires the making of a political decision about the identity of the state that generates socially homogeneous conditions. Hence, the state is understood as a homogeneous political entity that precedes the creation of an organised legal order. Thus, the most famous sentence of Schmitt's work is: ‘Sovereign is who decides on the exception.’Footnote ³⁰ The true nature of the political and the identity of the state are revealed in an extreme emergency when the state is under existential threat. In that moment, a sovereign decision asserting the ‘friend/enemy’ distinction is necessary to bring about the homogeneous conditions needed to enable the ordinary operation of the rule of law.

In making these points, Schmitt describes a political dynamic the logic of which points towards pseudo-democratic executive dictatorship. He argues that the solution to the ‘exception’ is an exercise of extra-legal political power by a charismatic leader or sovereign who decides the terms of political membership by asserting the ‘friend/enemy’ distinction. The sovereign decides that there is an ‘exception’ and how to overcome the emergency, thereby bringing about the conditions needed for normalcy. Here, Schmitt's principles of political ‘identity’ and ‘representation’ are important to capture the interplay between the homogeneous group and the sovereign decision.Footnote ³¹ Although the legitimacy of the decision depends upon subsequent acclaim by the group, the sovereign must identify with that group and symbolically represent that group's identity. The group must agree with that identification by registering its acclaim for the decision, but the full public expression of its identity depends on its representation in the persona of a charismatic leader. The political dynamic triangulates social and political elements so that the legitimacy of the sovereign's decision is a matter of power politics that occurs outside justificatory practices associated with constitutional and democratic processes. Consequently, Schmittian authoritarian logic is oriented towards something akin to an executive-dictatorship with populist backing.

Of course, Schmitt never openly rejected constitutional democracy. Nevertheless, his constitutional theory, parts of which underlie Tew's work (via Roznai), indicates a view shaped by his authoritarian political logic. This logic is perhaps most apparent in his critiques of liberalism and liberal legality.Footnote ³² The crux of the former is that liberalism is a political theory that emphasises individual autonomy and universal equality that cannot yield any adequate account of the concrete homogenising basis of the state. The crux of the latter is that the liberal attempt to subordinate political authority to legality is untenable because the liberal principle of equality before law is universalistic and unable to differentiate between the equality of citizens and the equality of all humanity and therefore cannot make sense of the distinct political identity of the People as members of a specific political community. In addition, Schmitt argues that the liberal's aspiration to subject political power to the separation of powers introduces insecurity and instability into the constitutional order by encouraging the rise of pluralism and by making more difficult the inevitable need to make a sovereign decision about the identity of the state. In sum, the basic problem is that liberalism and liberal legality fail to account for the exclusionary character of political membership as requiring a homogeneous basis, and correspondingly that the inevitable sovereign decision about the identity of the state is crucial to organised legal-political order.

It is useful to see how Schmitt's critiques of liberalism and liberal legality inform his view of the Weimar Constitution. He attacks liberal elements of the Constitution as embodying fake or ‘dilatory’ compromises that should be overturned by a sovereign decision.Footnote ³³ In his view, these compromises only served to delay an inevitable decision asserting the ‘friend/enemy’ distinction to constitute the identity of a homogeneous German People during a moment of ‘exception’. That Schmitt's views are shaped by an authoritarian political logic in the German context are also evident in his view that it was the German President, not the courts, that should be the Guardian of the ‘true’ Constitution, because the President possesses unlimited emergency powers to make the decision needed to undo these compromises. Finally, Schmitt's authoritarian political logic finds its ultimate expression in his enthusiastic support for Hitler's rise to power.

These aspects of Schmitt's perspective are germane to making sense of his views relating to constitutional legitimacy and limits to constitutional amendment. As noted, Schmitt distinguishes between the ‘absolute’ and ‘relative’ constitutions, where the former is the authentic or true Constitution expressing the will of the ‘constituent power’ of the People and thereby legitimates the latter. He thinks that the ‘constituent power’ is not subject to prior normative conditioning and is absolute; he also believes the People retain the constituent power in residuum even after a legal Constitution is established so that they can subsequently overturn that Constitution to create a new one.Footnote ³⁴ In light of Schmitt's political logic, it is important to see that ‘the People’ need not be a democratic majority but could be a small but motivated group who is willing to act politically with the backing of a charismatic leader or sovereign that identifies and represents their identity.Footnote ³⁵ Accordingly, the elements of Schmitt's political logic suggest that the ultimate and practical bearer of the constituent power will be a sovereign or dictator.

Consequently, when it comes to limits to constitutional amendment, Schmittian political logic means that Schmitt's position does not readily serve constitutional democracy. The Schmittian argument assumed by Tew is that the ‘absolute’ Constitution operates as a ‘meta-Constitution’ that hovers above positive law (including positive constitutional law), that is immune from amendment, and that determines the meaning of the legal Constitution. But the question then becomes who determines the content of the former and by what criteria. Following Schmittian political logic, the answers depend on who exercises sovereign power where the values that constitute that identity will also define the ‘identity’ or content of the Constitution. The relevant criteria become whatever markers constitute the identity of the group as a unified People. The answers are thus determined by power politics and therefore offer no systematic connection to an outcome favourable to the ideal of constitutional democracy. Indeed, it is likely that the relevant dynamics that shape the typical context that gives rise to the problem of abusive constitutional amendments will not favour a result that benefits constitutional democracy.

Schmitt's political logic suggests that one is unlikely to find the conceptual resources within his constitutional theory to develop a defence of constitutional democracy. As Lars Vinx points out, a key problem is that Schmitt's position cannot ground the democratic right of dissenters, who disagree with the content of positive laws (including constitutional law), to demand a principled justification for the duty to obey law; an expectation that is characteristic of constitutional democracy.Footnote ³⁶ Instead, within Schmittian political logic, where the legitimacy of the legal Constitution flows from the politically absolute constituent power of a homogeneous group willing to act politically, such dissenters run the risk of being designated ‘enemy’. Indeed, Vinx has also recently argued that Schmitt's constitutional theory is plausibly read as a re-description of the ideal constitutional democracy. His is not an authentic articulation of constitutional democracy, as demonstrated by the authoritarian logic that runs through his theory.Footnote ³⁷

The authoritarian logic of Schmitt's position raises a question of how far Tew's tacit reliance on Schmittian ideas – the notion of an unamendable ‘external’ political or ‘meta-Constitution’ that hovers over and regulates the meaning of the legal Constitution – at the conceptual foundations of her argument affect the normative coherence of her position to equip judges with resources to defend and advance constitutional democracy. While Tew is no authoritarian, and her aim is to fight authoritarianism through empowering judges, her position is unfortunately tainted nevertheless by elements of Schmittian political logic so as to generate ambivalence about the values of ‘democracy’ and ‘legality’ within her conception of the judicial role. Consequently, judicial decisions about the content of the ‘meta-Constitution’ are not conceptually oriented to systematically affirm the ideal of constitutional democracy. Put another way, the tools she offers the judiciary undermine the outcome she hopes to achieve.

Constitutional Politics and Political Judges

Authoritarian Reconfiguration

To turn back to Vinx's observations that Schmitt's constitutional theory is an authoritarian re-description of constitutional democracy and offers the resources for authoritarians looking to claim democratic legitimacy, a similar dynamic of authoritarian re-description has been playing out in the Malaysian legal-political context at least for the last five decades. Any careful accounting of why Malaysian constitutionalism has not reflected a meaningful commitment to constitutional democracy requires tracing the influence of the key elements of Schmittian authoritarian logic as informing the attempt at such re-description by officials complicit in advancing an ethnocratic political paradigm. I am not suggesting that ethnocratic ideologues consciously read Schmitt and apply his ideas; rather, the suggestion is that the authoritarian logic behind the primary ideological justification for ethnocracy reflects hallmarks of the Schmittian position.

Ethnocrats argue that there is a ‘sacrosanct social contract’ embodied in the Malaysian Constitution that affirms a political doctrine of ‘Malay Dominance’.Footnote ⁵⁶ In contemporary Malaysian politics, Malay identity is equated with Muslim identity so ‘Malay Dominance’ now means ‘Malay-Muslim Dominance’ and even underlies calls to create a theocratic state.Footnote ⁵⁷ Crucial to the ethnocratic argument is the claim that the notion of ‘Tanah Melayu’ or ‘Malay land’, that is, the Malay state precedes the formation of the legal Constitution such that the political identity of the state is fundamentally Malay, and that the legal Constitution is built upon this prior political entity.

In light of this claim, it is further argued that non-Malays have rights of political citizenship, but these are subject to absolute deference to the politically dominant position of the ethnic Malays who are ‘Bumiputera’ or ‘sons of the soil’. To back up this claim, ethnocrats caution that any questioning of this dominant position risks triggering ‘Malay anger’ therefore absolute obedience to the social contract is necessary. By corollary, non-Malays are ultimately characterised as ‘pendatang’, roughly translated to mean ‘immigrant’, ‘stranger’, or ‘outsider’.Footnote ⁵⁸ Ethnocrats emphasise the identities of ethnic Malays as the politically ‘definitive people’ in comparison to non-Malays, who are defined as existentially different or ‘other’.Footnote ⁵⁹

Finally, ethnocrats assert that exercises of state power in the name of the social contract are legally and politically legitimate. Such an assertion is characteristically a response to the complaint that the government has exercised an authoritarian power that violates legal and political controls on state power associated with constitutional democracy. In making this assertion, ethnocrats characteristically also argue that such actions are legitimate in the name of the legal Constitution that reflects the terms of the social contract.

The ideological argument thus outlined implicates elements of Schmittian political logic. For instance, the argument implies that ethnic Malays are willing to act politically in the way that Schmitt requires, and are thus willing to fight and die in the name of their identity. This claim is not merely rhetorical because ethnocrats reference historical events of the Sino-Malay riots that took place in 1969 and that occasioned an actual 22-month state of emergency or ‘exception’ where ordinary constitutional norms and modes of government were suspended. The riots were triggered by the prospect of UMNO's loss of its two-thirds majority in Parliament to a Chinese-led political party. An orgy of killing and mass destruction of property took place leading to a formal state of emergency. A major consequence of these riots was the express political affirmation of the ethnocratic political paradigm backed by constitutional amendments intended to entrench that paradigm from ordinary political dissent.Footnote ⁶⁰ The argument, as characteristically invoked in contemporary Malaysian politics, is a constant reminder that ethnic Malays are willing to act politically against those who question Malay Dominance, as the latter risk being identified as an existential ‘enemy’ to be vanquished.

The ideological argument further implies that, regardless of the specific terms of the legal Constitution, there is a historically salient ‘meta-Constitution’ embodying values constitutive of the identity of a homogeneous Malay-Muslim People that controls the meaning of the legal Constitution. To be sure, ethnocrats focus on specific aspects of the legal Constitution that affirm the official status of Islam as the religion of the Federation and other provisions designating ethnic Malays as having a ‘special position’ as beneficiaries of a program of affirmative action.Footnote ⁶¹ But the claim that the Malaysian social contract is ‘sacrosanct’ is typically invoked as a response to challenges to ethnocratic rule, including challenges that assert a different and democratic reading of the Malaysian Constitution. The claim asserts the normative priority of an ethnocratic political Constitution over the legal Constitution.Footnote ⁶² In addition, such responses are intended to legitimate the idea of a pseudo-democratic dictatorship in the name of the Malay People.

This last point reflects Vinx's observation that Schmittian political logic is an authoritarian re-description of constitutional democracy. In this connection, Tamir Moustafa has recently argued that judges are complicit in a battle of ‘rites versus rights’ between ethno-Islamists and liberal-secularists about the ‘identity’ of the Malaysian state.Footnote ⁶³ His study of court cases reveals the ongoing dynamics of re-description as public officials and some judges work to re-shape the conceptual terrain that informs questions of legal and political legitimacy, by shifting away from the terrain of legality and onto the terrain of sociology and politics in the way that Schmitt desires. Judges are attempting to actualise the core tenets of the ideological argument for Malay Dominance, including an emphasis on Islam as integral to the political identity of the state. Indeed, Tew has also argued that judges have been complicit in helping to bring about a ‘stealth theocracy’; that is, courts have quietly been using procedural and jurisdictional arguments to allow Islamic values to supersede the secular constitutional framework.Footnote ⁶⁴

The political logic behind this complicity involves the attempt to apply Schmittian political logic in furthering the doctrine of Malay Dominance, where a by-product is the creation of a top-down structure of authoritarian governance where executive power can be exercised absent the control of independent courts. To make sense of these dynamics, consider two constitutional amendments enacted in 1988, arguably at a moment in Malaysian political history that marks an inflection point in the effort to entrench ethno-authoritarian rule. These amendments were triggered by judicial attempts to check the government via judicial review, in response to an especially authoritarian period when the government sought to control political dissent, including through the use of draconian security laws allowing for indefinite detention without trial. These efforts occasioned an official backlash as judges from the apex court, the then Supreme Court (subsequently renamed the Federal Court), were sacked for ‘misconduct’. This reaction garnered international attention as an assault on judicial independence and the rule of law.Footnote ⁶⁵

In addition to the sacking, and to cement political control over the courts, the government amended Article 121(1) of the Constitution (the ‘judicial power amendment’). Prior to amendment, the provision read that the ‘judicial power of the Federation shall vest in the High Courts’, making it clear that the jurisdictional powers of the courts were a creature of the Constitution, not ordinary legislation enacted by Parliament. Upon amendment, the phrase ‘judicial power’ was deleted, and the provision reworded to say that the jurisdiction of the courts shall be ‘subject to federal law’. In the wake of the amendments, it became clear that the point of the amendment was to give Parliament authority to define the scope of judicial review using legislative ouster clauses that either curbed or excluded judicial review. In so doing, Parliament could enact legislation to grant public officials a legally uncontrolled and arbitrary power beyond judicial control and contrary to the doctrine of the separation of powers.Footnote ⁶⁶

The assault on the courts, and the ‘judicial power amendment’, understandably overshadowed a further amendment in the form of Article 121(1A), which was politically intended to create an autonomous system of Islamic courts (‘Syariah Court amendment’). The Syariah courts were a creature of ordinary legislation. The official reason given for the amendment was that the civil courts had been overturning the decisions of the Islamic courts that have jurisdiction over the private affairs of Muslims, although there was hardly any evidence to support this claim. The real reason was that the heat of political competition for votes necessitated that the ethnocratic UMNO regime needed to enhance its Islamic credentials with the ethnic Malay-Muslim population, who formed the majority of grassroots voters.Footnote ⁶⁷

Over three decades later, the latter amendment has become the focus for the battle of ‘rites versus rights’ that Moustafa describes. The ruling ethnocratic regime uses Islamic law to enforce a formal definition of Malay-Muslim identity and to control those identified as Muslims. The realm of private Islamic law, especially family law, has become the site for the attempt to construct and defend the Malay-Muslim identity of the state. Hence, a serious problem has been the pressing issue of unilateral child conversions, where one spouse converts to Islam and converts their children to Islam without the consent of the non-Muslim spouse. Of course, this also means that non-Muslims are affected in such cases. However, a serious problem is that civil court judges are generally very reluctant to intervene in such cases, arguing that the ‘Syariah court amendment’ means civil courts have no jurisdiction to hear appeals in such cases. Since non-Muslims have no standing in Islamic courts, the latter are rendered in effect ‘rightless’, thereby producing a veritable ‘jurisdictional imbroglio’.Footnote ⁶⁸

The question then becomes why judges are reluctant to intervene, given that the compelling argument that the Syariah Courts are subordinate to civil courts because the former's authority is rooted in legislation, while the latter's authority is rooted in the Constitution itself. Civil courts have been resistant to this argument as judges continue to be unwilling to exercise appropriate constitutional supervision. Scholars argue that the problem has to do with a breakdown in judicial independence and the seepage of ethnocratic ideology in the judiciary.Footnote ⁶⁹ Hence, Dian Shah observes:

Shah goes on to describe how some judges declare that they are ‘Muslims first, judges second’ and view it as their foremost duty to uphold the priority of Malay-Muslim identity in preserving ‘Malay power’. In addition, she observes that some judges are keen to defend Malay political power, a view that she characterises as ideological and involves a ‘perversion’ of constitutional provisions.Footnote ⁷¹

The word ‘perversion’ is revealing because it brings forward the idea that the authoritarian forces that have negatively impacted judicial independence have done so in a manner that is suggestive of the kind of subversion of constitutional democracy intended by Schmitt's political logic. Authoritarian forces have been utilised so that judges reconceive their judicial role so as to privilege ethnic, religious, and communal values over the values of legality. Importantly, in privileging such values, judges continue to assert that such values are germane legal reasons that should govern the interpretation of the Malaysian Constitution. In so doing, judges are emphasising the priority of an ethnocratic ‘meta-Constitution’ or social contract expressive of Malay Dominance, and working to affirm the identity and will of an ethically and ethnically homogenous People against the potential threat posed by an ‘existential’ other. But, as the word ‘perversion’ implies, these are not defensible interpretive practices but are pathological practices from the perspective of legality. These pathological practices have, in turn, been made possible by damage done to judicial independence.

These realities pose obvious problems for Tew's case for empowering Malaysian judges. If the combination of authoritarian pressures and ideology have made judges susceptible to social and political forces, and the play of power politics intended to affirm the priority of ethnocratic rule, then Tew's position is potentially problematic because she is asking judges to attend to such forces in deciding the content of the ‘meta-Constitution’. To be sure, her argument is that judges should extrapolate from constitutional history an understanding of the Malaysian social contract as embodying a commitment to a wider constitutional plan expressive of constitutional democracy, including a principle of secularity. But once judges are asked to operate on political terrain, there is not any systematic reason rooted in politics or sociology to think that judges would render Tew's preferred account of Malaysian constitutional history. Indeed, the evidence suggests that they are likely to subsequently develop a pathological view of that plan as an ethnocratic rendering of constitutional democracy in service of Malay political power.

This danger is amply illustrated by the Court of Appeal decision in the Allah-Herald case.Footnote ⁷² The issue before the court was whether the government's attempt to ban the Malaysian Catholic Church from using the word ‘Allah’ in its weekly Malay language newsletter, The Herald, was lawful. The UMNO-led government argued that the Church should desist from using the word ‘Allah’ because it is also the Malay-Muslim language word for ‘God’. The argument was that the use of this word could confuse Malay-Muslims and somehow lead them to convert to Catholicism. Therefore, it was argued that the use of the word ‘Allah’ not only potentially inflamed Malay-Muslim racial and religious sensitivities; its usage also threatened national security. The argument was therefore Schmittian in suggesting that the Catholic Church posed an existential threat as ‘enemy’ to the identity of the state as an ethno-Muslim state, such that its actions could be read as trigging a moment of ‘exception’ that had to be dealt with appropriately.

In response, the Catholic Church argued its right to practice the freedom of religion under Article 11(1) of the Malaysian Constitution, which declares ‘Every person has the right to profess and practice his religion … [and] to propagate it.’ In addition, the Church also argued that The Herald was not available publicly but was only available in Church to those present at masses so that there was no credible risk that Muslims would somehow be confused into converting to Catholicism. Hence, in addition to invoking its constitutionally protected rights, the Church tried to show that it was not indifferent to so-called racial and religious sensitivities of ethnic Malay-Muslims.

Apandi Ali JCA, who delivered the leading judgment for the Court of Appeal, upheld the government's ban in a manner reflective of a Schmittian position. He accepted the government's arguments and cited existential considerations about the need to defend Malay-Muslim identity as integral to the identity of the state and the Constitution. He argued that Article 3(1) makes Islam the ‘official religion of the Federation’ so that the state should give priority to the protection of Islam. In doing so, he took an idiosyncratic interpretation of the rest of Article 3(1), which says: ‘…but other religions may be practiced in peace elsewhere in the Federation.’Footnote ⁷³ Rather than reading this statement as echoing the Constitution's protection of the freedom of religion in Article 10(1), he read the provision to mean other religions could not be practiced if doing so would undermine social peace. He argued that other religions posed an existential threat to Malay-Muslim identity, and thus also risked social stability and security. As such, the government was entitled to control the spread of non-Muslim religions.

It is plausible to view Apandi Ali JCA as taking up the mantle of an interim Schmittian sovereign by declaring and then dealing with an existential threat, or ‘exception’, and by invoking the ‘friend/enemy’ distinction to defend the priority of Malay-Muslim identity as against the potential negation of that identity by the Catholic ‘other’ or ‘enemy’. Here, it is striking that the judge invoked the idea of a constitutional basic structure and argued that Article 3(1) is ‘on a par with the basic structure’ of the Constitution.Footnote ⁷⁴ In fact, he cited the Malaysian ‘social contract’ and said:

These remarks, read alongside the preceding claims about the basic structure, signal the presence of an ‘external’ ethnocratic ‘meta-Constitution’ of political Malay Dominance, which hovers over and controls the meaning of the legal Constitution. The ‘meta-Constitution’ here carries the further implication that the primacy of Islam is sacrosanct and immune from political challenge, indeed immune from constitutional amendment. Of course, this is to echo the official ideological stance behind ethnocratic rule, which rests in the Schmittian distinction between friend and enemy or between Malay-Muslims and others. Indeed, Apandi Ali JCA went on to register his worries about how non-Muslims might ‘erode Malay power’.Footnote ⁷⁶

The Allah-Herald case illustrates the problem that some judges are subject to the ideological argument behind ethnocratic rule and are therefore willing to privilege an ethnocratic ‘meta-Constitution’ to determine its contents by reference to how social and political factors pose a threat to Malay-Muslim identity. They are therefore complicit in the wider enterprise of authoritarian re-description. Note Apandi Ali JCA still purports to render legal or constitutional reasons for his decision, even if it is plain that his is a badly flawed piece of legal reasoning. It is flawed because it deviates from the epistemic standard of legal coherence that structures good faith legal reasoning, which would require taking a holistic view constitutional text, structure, and history.Footnote ⁷⁷ Instead, echoing Moustafa's and Shah's critique of ethnocratic judgments, the decision displays a dubious and selective view of the Constitution's protection of the freedoms of speech and religion that barely conceals a political defence of Malay power. The judge is not deciding by reference to the interpretive requirements of legality. Rather, as his comments about the need to ‘insulate’ Malay-Muslims from threats ‘in the context of this country’ show, Apandi Ali JCA is invoking a social and political claim about that threat as requiring a response.

Of course, the judgment also suggests that Tew's proposed approach to constitutional interpretation could be easily reconfigured as part of an attempt at authoritarian re-description of constitutional democracy in Malaysia to mean some version of populist or ‘ethnic-democracy’. Even though Tew's conception of the judicial role is tacitly predicated upon the idea that the legitimacy of the Malaysian Constitution and the ingredients of the unamendable basic structure flow from an exercise of constituent power by the People, her judges need not take the ideal of democracy seriously. The invocation of ‘the People’ has a fictive air because it makes no contact with the perspective of ordinary citizens and allows judges to simply assert what they believe the constituent power commands as the contents of the ‘meta-Constitution’. As well, Tew's conception of the judicial role subordinates the ideal of the rule of law to the constituent power so that the primary judicial focus is on social and political factors that evidence the will of the People. Given a background setting affected by pathologies – authoritarianism, ideology, and weak judicial independence – traceable to elements of Schmittian political logic implicit in ethnocratic rule, authoritarian judges could reconfigure Tew's proposals to reach the conclusion that oppressive ethnocratic laws and policies are part of the ‘meta-Constitution’ expressing the will of the Malay-Muslim community who are the ‘definitive People’.

To emphasise this risk, Apandi Ali JCA's decision appears as a mirror image of Tew's claim that judges should engage in constitutional statecraft by working up the basic structure of the Constitution in service of constitutional democracy. Here, the judge invokes the idea of a constitutional basic structure to engage in ethnocratic statecraft and to further the aims of the ethnocratic state.Footnote ⁷⁸ Consequently, even though Tew is not advocating a conception of the judicial role where judges should operate as authoritarian Schmittian sovereigns, the judgment indicates that her position supplies the basis for judges to make decisions qua a Schmittian sovereign.

But perhaps the problem of authoritarian reconfiguration is only a problem if we are thinking about authoritarian judges complicit in upholding ethnocratic ideology. Hence, it might be argued that conscientious Malaysian judges could take up Tew's proposals. Here, Tew relies on the fact that Malaysian Courts have asserted the importance of an unamendable constitutional basic structure to deal with the problematic constitutional amendments enacted in 1988, the ‘judicial power’ and ‘Syariah court’ amendments. So, the question is how far conscientious judges would embrace her proposals to defend and develop a vision of constitutionalism expressive of constitutional democracy. I now turn to address this question, and to argue that the conscientious Malaysian judges Tew has in mind apply different non-Schmittian or perhaps even anti-Schmittian conceptual assumptions about constitutional legitimacy in a way that suggests they are unlikely to find the ideas associated with Tew's approach congenial.

The Priority of Legality

The parameters that define Tew's argument are that, despite the fragility of Malaysian democracy and authoritarian pressures on the courts, there remain some space for judges to engage in constitutional statecraft and to advance the ideal of constitutional democracy. While her arguments are aspirational, they are also supposed to be practically implementable on the basis that there is presently room for Malaysian judges to work up the idea of an unamendable constitutional basic structure as a bulwark against ethno-authoritarian rule. Her argument therefore relies on a claim about descriptive plausibility and invokes recent examples of decisions by Malaysian judges that reflect the possibility of judicial resistance to authoritarian rule.

Perhaps the most significant court decision that informs Tew's arguments and inspires her proposals about how judges could defend and develop the unamendable basic structure is the 2018 Federal Court decision in Indira Gandhi, widely considered a landmark judgment that expressly affirms the so-called ‘basic structure doctrine’ as part of Malaysian constitutional law.Footnote ⁷⁹ The judgment is significant because this affirmation is made in response to the problematic ‘judicial power’ and ‘Syariah court’ amendments and responds by arguing that the basic structure of the Malaysian Constitution reflects a commitment to values of political morality reflective of constitutional democracy.

The case is also material because it involved the vexing issue of unilateral child conversions, which resulted in a ‘jurisdictional imbroglio’ that left the non-Muslim spouse effectively ‘rightless’. In this case, the appellant was a mother whose children had both been unilaterally converted and abducted by her husband.

It has to be noted that, although the problem in this case appears at a glance to be a problem of Islamic private law, the problem has political and public dimensions. As Maznah Mohamad has argued, Islamic family law has been the locus for a state-driven project of Islamic homogenisation.Footnote ⁸⁰ As already mentioned, the same issue crops up in apostasy cases where it is practically very difficult – bordering on impossible – for those identified as Malays to exit Islam. Likewise, when it comes to unilateral conversions, the same political logic of ensuring that there is an ethically and socially homogeneous Malay-Muslim community informs how courts approach such cases. As Mohamad has convincingly argued, the goal is to establish the hegemonic status of Muslims in an ethnically diverse social and political setting. Of course, such a goal reflects the aim of Schmittian political logic to establish an authoritarian government acting in the name of a unified political community. Family law has become a site for conscious and active effort by the state to construct and enforce a homogeneous conception of Islamic identity.

It is also for this reason that such decisions garner significant political and social attention. As Moustafa points out in his study of the battle of ‘rites versus rights’ taking place in the courts, decisions about unilateral child conversions become the focus of a ‘political spectacle’.Footnote ⁸¹ Cases implicating Islamic law garner considerable media scrutiny where the two sides in the battle also disagree in the court of public opinion. Those in the former camp worry that court decisions could generate a threat to the priority of Islam as integral to the ethnocratic Malay-Muslim identity of the state. Those in the latter camp are anxious that court decisions could potentially erode what are believed to be the secular foundations of the Malaysian Constitution and as threatening the importance of individual autonomy and the freedom of conscience. Since these competing viewpoints find expression in the media, it was very likely that the judges were aware of the wider political significance of any decision they would make in context of the battle of rites versus rights.

Against this background, the Federal Court was at pains to emphasise that its decision was made wholly in accordance with a commitment to legality. In a short concurring judgment that precedes the leading judgment, Zulkefli PCA, sitting as a member of the Federal Court bench, expressly declared that judges were ‘not swayed by our own religious convictions and sentiments.’ He added, ‘[i]n the present case in upholding the rule of law we have to decide on the issue strictly on the basis of the relevant laws, case authorities and the provisions of both the state and the Federal Constitution governing the particular issue.’Footnote ⁸² These remarks expressly resist a general tendency reflected in the way such judgments are read in the wider social and political milieu as merely the instrumental expression of the court's ethical, religious, or political beliefs. Rather, the court had approached the decision impartially and interpreted the relevant law by reference to the requirements of legality.

Zainun Ali FCJ delivered the leading judgment containing the central argument affirming the status of an unamendable constitutional basic structure as part of Malaysian constitutional law. The main argument is expressed in the following passage:

In this rich passage, the Federal Court invokes the idea that there is an ‘internal architecture’ within the Constitution or a ‘constitutional basic structure’. Of course, this is the idea that Tew wishes to defend and develop by reference (via Roznai) to the Schmittian distinction between the ‘absolute’ and ‘relative’ constitutions, where the emphasis is on the former as the operative ‘meta-Constitution’ that hovers above the legal Constitution. But one should note that even the general idea of an ‘internal architecture’ appears conceptually different from the Schmittian notion of a political or ‘absolute’ Constitution that expresses the constituent power. A ‘meta-Constitution’ suggests a constitutional perspective that is ‘above’ and ‘external’ the legal Constitution, whereas the idea of an ‘internal architecture’ implies a constitutional perspective that remains within the legal Constitution that can be articulated using ordinary techniques of legal reasoning.

The thought that the internal architecture of the Constitution is implicit in the Constitution and could be discerned using ordinary techniques of legal interpretation is material. Noteworthy is that in Roznai's account of the interpretive approach that judges should take to make sense of an unamendable constitutional core, he not only cites Schmitt's views but also the views of Mark Walters as these relate to the idea of the ‘spirit’ of legality.Footnote ⁸⁴ Walters is a common law constitutionalist who argues that the legitimacy of written Constitutions cannot be separated from unwritten constitutionalism, such that the political facts that legitimate the written Constitution are part of ordinary constitutional law.Footnote ⁸⁵ The ‘spirit’ of the Constitution is a reference to the spirit of law or the rule of law and is a familiar metaphor within the tradition of common law constitutionalism. Of course, Roznai ultimately privileges the Schmittian perspective harking back to constituent power, an idea that implicates sociology and politics over ordinary legal reasoning in making sense of the unamendable ‘absolute’ or ‘meta-Constitution’.

Not only does Tew embrace this perspective, she also resolutely rejects common law constitutionalism as normatively irrelevant to the Malaysian context, where there is a legally supreme written Constitution. By contrast, the Federal Court does not reject the common law tradition and the salience of ordinary techniques of legal interpretation. The court took a comparative approach and invoked judicial precedents from different jurisdictions around the Commonwealth, including and especially the United Kingdom and Canada. Striking is that neither legal order contains a legally supreme written Constitution containing non-derogable constitutional norms that operate as strict criteria of legal validity. Rather, both legal systems contain constitutional documents or their equivalents reflecting a democratic model of constitutionalism where constitutional principles can be expressly curbed or overridden by a democratically elected legislature subject to certain justificatory criteria.Footnote ⁸⁶ Despite differences in constitutional design when compared to the legally supreme Malaysian Constitution, the link that ties these legal orders together is joint membership within the family of common law legal orders.

My point is that the Federal Court's reasoning proceeds from a philosophically very different perspective than Tew's approach. Unlike Tew, whose arguments depend on the idea of a ‘constituent power’ and a political ‘meta-Constitution’ that precedes the legal Constitution and the rule of law, the Federal Court is drawing on ideas familiar to common law constitutionalism where reasoning is wholly internal to the rule of law and wholly governed by techniques of ordinary legal reasoning. As the passage quoted above from the judgment conveys, legal interpretation is informed by a focus on achieving an interpretation of the Constitution that reflects purposive coherence that explains and justifies both structural and substantive elements. To go back to my earlier discussion of the rule of law, the judicial role is defined by the idea that legal interpretation assumes a connection between both ‘thin’ and ‘thick’ conceptions of legality in a bid to show how structure and substance explain and justify the existing constitutional framework.Footnote ⁸⁷ In doing so, judges are making sense of that framework as an institutional expression of a public culture of justification, where their determinations are wholly internal to the rule of law.

As Dyzenhaus has argued, such an approach applies a ‘reconstructive’ methodology, a backward looking approach to constitutional interpretation that begins in the assumption that the Constitution is legitimate and a source of binding obligation.Footnote ⁸⁸ The approach is backward looking because it involves an attempt to construct a normative bridge between the past and the present by articulating a set of structural and substantive principles that fit and justify the existing constitutional framework taking into account its wider purposes as evidenced by constitutional history. Here, judges do not look to the historical record to decipher the commands of the constituent power. Instead, they are trying to make sense of an initial decision to embrace the rule of law by way of a legal Constitution that sets out a specific institutional and normative framework that constitutes the practices of justification associated with the public culture of justification. In this case, the identified principles include federalism, democracy, minority rights, and the rule of law.

Importantly, the normative relevance of these values does not wholly depend on there being a written Constitution. Such a constitutional framework formalises and enhances a commitment to the rule of law, perhaps by giving judges the power to strike down legislation that violates such principles. While the Constitution may expressly articulate and enhance the meaning and significance of such principles, their basis lies in the more foundational political fact that state power must be bottomed in and exercised through a normative legal framework expressive of the rule of law. Hence, to go back to Walters, the legitimacy of the written Constitution cannot be divorced from the legitimating significance of unwritten constitutionalism. Therefore, the relevance of foundational principles that speak to the legally legitimate exercises of state power flow from the presupposition that the legitimate uses of state power must flow from a prior commitment to the foundational distinction between legality and arbitrary power.

The foundational status of that distinction helps to explain the Federal Court's defence of an unamendable constitutional basic structure in responding to the vexing ‘judicial power’ and ‘Syariah court’ amendments. Thus, Zainun Ali FCJ invoked three reasons for affirming the basic structure doctrine, which combine to immunise certain principles from constitutional amendment and to protect such features ‘from the reach of simple majority rule.’Footnote ⁸⁹ First, the role of a Constitution is to protect fundamental human rights from government interference. Second, the Constitution plays a role in protecting vulnerable minorities from ‘the assimilative pressures of the majority.’Footnote ⁹⁰ Third, the Constitution may divide powers amongst different levels of government to safeguard against the risk that an organ of government could ‘usurp’ and arrogate excessive power.

The argument implies the wider idea that the legal Constitution affirms and immunises legal subjects from the risks of domination by political majorities, thus echoing the foundational distinction between legality and arbitrary power. In this connection, Zainun Ali FCJ also notes the constitutional basic structure is itself ‘the product of negotiation and political compromise.’Footnote ⁹¹ And, further, she observes that it is not ‘unprincipled’ and has to be understood by reference to the other elements of the basic structure.Footnote ⁹² The compromise in question is between ‘democracy’ and ‘legality’ so that the legitimate exercise of political power must be justified by reference to the requirements of the rule of law, especially as expressed by the legal Constitution.

Of course, the thought that the ideal of democracy should be chastened by the ideal of legality is wholly antithetical to the Schmittian position where the rule of law is instrumental to the commands of the constituent power expressing the will of a unified People. In Schmittian political logic, this subordination and instrumentalisation of the rule of law makes it vulnerable to an authoritarian re-description as an instrument of political domination by groups willing to act politically as Schmitt requires making legality subordinate to power politics. Within Tew's proposals, we have seen that the rule of law is also subordinate to the commands of the constituent power where, as I have argued, the determination of the content of these commands as they relate to the ‘meta-Constitution’ are likewise also vulnerable to the sway of power politics.

There is reason to think that the judges in Indira Gandhi were aware of this danger, as reflected by the way the authoritarian logic of ethnocracy had worked to subvert the ideals of democracy and legality, rendering them phantom ideas that supply ideological legitimation to ethno-authoritarian rule. Here, a crucial part of Zainun Ali FCJ's judgment is her claim that the need to protect minority rights is linked to the importance of resisting the ‘assimilative pressures’ of the majority. Her point is that political majorities are not legally entitled to use state power to dominate legal subjects, including the use of such power to compel the latter to either embrace or even acquiesce to the values that may constitute the identity of the powerful majority. Resistance to such pressures is crucial to the aspirations of constitutional democracy, thereby suggesting that positive law may not be used to construct and impose upon legal subjects a specific view about the identity of the state.

The point is therefore anti-Schmittian, especially if one keeps in mind that the Federal Court was very much attuned to the ongoing battle of ‘rites versus rights’ that was salient to how they should decide in the present case. To elaborate, the decision in Indira Gandhi touches on the dynamic within this battle where the ‘judicial power’ and ‘Syariah court’ amendments are read together to allow the ethnocratic state to both discipline and control those identified as Malay-Muslim while simultaneously rendering non-Malays-Muslims ‘rightless’ in any case presenting an issue that could threaten the state-driven project of enacting an ethically homogeneous conception of Malay-Muslim identity. As noted earlier, echoing Maznah Mohamad, the state is ‘making majority’, meaning it is exercising arbitrary power to dominate legal subjects in order to bootstrap into existence the idea of a dominant and homogeneous Malay-Muslim ethnos.

Zainun Ali FCJ renders an anti-Schmittian position that rebukes this project by emphasising the priority of legality over power politics, specifically the power politics of domination. Hence, the judge argued for the ‘role of the Judiciary as the ultimate arbiter of lawfulness of state action.’Footnote ⁹³ And the judge emphasised, the ‘power of the courts is a natural and necessary corollary of the rule of law.’Footnote ⁹⁴ And that an independent judiciary empowered to make determinations of lawfulness is paramount to resisting ‘unfettered discretion.’Footnote ⁹⁵ Then, to drive the point home, Zainun Ali FCJ declared that there must be ‘legal limits’ for ‘otherwise there is dictatorship.’Footnote ⁹⁶ The judge is expressly resisting the underlying Schmittian political logic behind efforts to use constitutional law (including abusive constitutional amendments) to create and legitimate what would in effect be an ethnocratic dictatorship. Again, the basis to this argument is legality as Zainun Ali FCJ observed:

The upshot of her argument is that the basic structure of the Malaysian Constitution affirms values expressive of constitutional democracy and judges are thus entitled to safeguard those values, including against constitutional amendments designed to undermine their relevance in keeping with constitutional democracy.

This general argument supplies the basis for the court's reading of the ‘judicial power’ and ‘Syariah court’ amendments in a way that works against the specific political intentions that informed their initial enactment. Zainun Ali FCJ held that the court's powers of judicial review could not be amended away by Parliament. And she reasoned that the Syariah courts did not have exclusive jurisdiction to make decisions that would be immune from review by civil courts on the grounds that the Islamic courts are merely creatures of statute while civil courts derive their authority to defend constitutional norms from the Constitution itself. The judge's decision thus implies that even where religious courts can make decisions by reference to religious values, the legitimacy of their judgments requires fidelity to the principle of legality as articulated by the Constitution.

Having set out these arguments and clarified the correct constitutional position in relation to the ‘judicial power’ of the courts, the court did not give effect to Parliament's well-known intentions in enacting that amendment. But it was ambiguous as to the question of whether or not the ‘judicial power’ amendment was legally valid. Tew argues that the decision is tantamount to a ‘de facto invalidation’. And Wilson Tay has suggested that the court had ‘airbrushed the amendment out of existence.’Footnote ⁹⁸ However, in my view, a more plausible reading is that the court was purposefully ambiguous on the question of the formal validity of the ‘judicial power’ amendment.

Such a reading might be defended for four reasons. First, the court would have been mindful of the fact that it had to navigate the risks of an authoritarian backlash in undermining the intentions of the ruling regime in seeking to exercise control over the courts’ powers of judicial review.

Second, the judges are likely to have been aware of the fact that any decision to invalidate the amendment would be vulnerable to reversal not only by Parliament but also by a subsequent court more sympathetic to the interests of the ruling regime. As Tay has argued, decisions invalidating legislation are often brought back to life in later court decisions.Footnote ⁹⁹ Therefore, any decision to formally invalidate the amendment might be short-lived even within the ranks of the judiciary.

Third, the logic and character of the Federal Court's judgment suggests that the judges were less concerned about the question of formal legal validity and more interested to spotlight the question of the legitimacy of the ‘judicial power’ amendment from the perspective of the rule of law. The judgment assumes that Parliament intended to respect the rule of law (despite the well-known political fact that it did not intend to do so), thus allowing the judges to ‘read down’ the ‘judicial power’ amendment in light of a detailed argument at the level of constitutional principle defending the legally inviolate status of the judicial power from the perspective of the rule of law. And, given the politically charged issue before the court and the knowledge that its judgment would receive considerable publicity, the Federal Court sent the message to Parliament and the ruling regime that any attempt to undermine the ‘judicial power’ is not legally legitimate.

Fourth, by omitting to expressly invalidate the ‘judicial power’ amendment and choosing to ‘read down’ the amendment by reference to a detailed argument of constitutional principle that focuses on legal legitimacy, the court directly challenges the implicit logic behind the UMNO regime's enactment of the amendment. The amendment is yet another expression of the regime's penchant for ‘rule by law’, the use of the legal form (typically legislation including constitutional amendments) as a cloak for arbitrary power.Footnote ¹⁰⁰ Rule by law is a practice long employed by the UMNO regime that leverages the formal quality of a law, as validly enacted in accordance with manner and form requirements for legislation, as sufficient to establish the legitimacy of the law, even if the political purposes to inform that law are authoritarian and seek to grant public officials a legally unaccountable and arbitrary power. Rule by law thus relies on a conceptual and normative link between formal legal validity and legal legitimacy. But by leaving open the question of validity and emphasising a vigorous case in support of judicial power at the level of legal legitimacy, the Federal Court's reasoning suggests that one should not uncritically accept such a link. The judgment opens the space for seeing that the status of a law as formally valid does not imply that that law is legally legitimate. In so doing, the logic of the Federal Court's judgment directly challenges the implicit premise of rule by law.

To bring the analysis to a close, this last observation chimes with Zulkefli PCA's remarks in his short concurring judgment at the beginning of the Federal Court's judgment that the decision taken by the court is in ‘accordance with the rule of law.’ This opening declaration signifies the stance taken by conscientious judges looking to push back against attempts to leverage the legal and constitutional form, to allow the state a legally uncontrolled power. Of course, this is precisely the cutting edge of Schmittian political logic. The Federal Court's reasoning is important because the logic of that reasoning expressly defends the normative priority of legality as defining the conceptual terrain for determining the legitimate uses of state power as always subject to the discipline of the rule of law.

For conscientious judges whose self-conception of the judicial role is defined by a commitment to the foundational normative distinction between the rule of law and arbitrary power, any answer to authoritarianism must retain a clear-eyed focus on that distinction. Indira Gandhi suggests that, contrary to Tew, conscientious judges will respond to abusive constitutional amendments in a manner that remains wholly internal to a commitment to the rule of law and will not resort to the idea of an ‘external’ and unamendable ‘meta-Constitution’ that requires them to give up that distinction.