RECENTLY, I received a message seeking my support for a petition in Change.org. The petition basically calls for rejection of the “basic structure doctrine” which it claims is being increasingly practised by our civil courts, especially in shariah law matters.
My views on the above are as follows.
The debate is that basic structure jurisprudence does not originate from the federal constitution. It is an ongoing issue for a few decades for different reasons, notwithstanding that the Federal Court had recently employed the jurisprudence.
I take the view that basic structure jurisprudence does not originate from the federal constitution, but the “oath of office jurisprudence” which originates from the constitution is the correct constitutional jurisprudence to uphold the rule of law in Malaysia.
Basic structure jurisprudence imported from India is a useful material to guide the courts on its constitutional role to protect the essential features of the constitutional framework without absolutely ignoring the separation of powers doctrine.
Basic structure jurisprudence has been employed by the Indian judiciary as a catalyst to flame and justify judicial activism for striking down constitutional amendments, as their oath of office does not empower them to “preserve, protect and defend the constitution” as found in our 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 the legislature as Parliament is supreme. However, the separation of powers doctrine cannot apply absolutely for the Indian as well as the Malaysian judiciary as the constitution vests in them the judicial power to strike down legislation or parts of it which are unconstitutional. Thus, in the Indian and Malaysian context, Parliament is not supreme and the legislation must not breach the constitutional provisions. This is to ensure check and balance, which powers are vested in the judiciary.
Constitutional oath jurisprudence in Malaysia is derived from the constitutional oath of office taken by a judge where he swears to “preserve, protect and defend the constitution” and he has to do that 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 to comply 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 its parts breaches the constitution.
However, when it comes to constitutional amendments, the oath of office gives constitutional power to the judges to strike down the amendment if it breaches any of the constitutional provisions or its framework. Such an oath is not available for the Indian judiciary, and therefore to protect the constitutional framework as well as social justice obligations the Indian judiciary by a majority gave birth to basic structure jurisprudence which has its own jurisprudential controversies which is 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 a number of judgments in the high court as well as the Court of Appeal. However, the apex court has been shy to endorse this jurisprudence yet, notwithstanding leading jurists in Malaysia and overseas had endorsed it. The late Datuk Seri Gopal Sri Ram endorsing it in his review of my research paper Social Justice: Constitutional Oath, Rule of Law, And Judicial Review – Malaysian Chapter 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”
Oath of office of constitutional functionaries in Malaysia absolutely protect 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 where English judges were not familiar with.
Endorsement of constitutional oath of office jurisprudence as opposed to basic structure jurisprudence will not give room for critics to argue that basic structure jurisprudence which had been rejected by legal luminaries such as Tun Suffian was wrongfully endorsed by the recent decisions of the apex court. Why do we need basic structure jurisprudence for judges to preserve, protect and defend the constitution when judges’ oath of office impose them 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 with unnecessary case backlogs, 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. – The Vibes, August 6, 2023
Prof Datuk Hamid Sultan Abu Backer is a retired judge of the Court of Appeal, and professor of arbitration and dispute resolution at MAHSA University
