BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)
“PAS bill – unconstitutional?” (Letters, June 13) refers. Simon Wood says that Malaysian courts have rejected the proposition that there is a basic structure of the Constitution that must be upheld.
He cites Phang Chin Hock’s case in support. It is important to note that in this case this point was left open. Suffian LP said:
“For the reasons which will appear when we deal with the third point in a moment, it is unnecessary for us to say whether or not Parliament’s power of constitutional amendment extends to destroying the basic structure of the Constitution.”
And again in the Federal Court case, Mark Koding v Public Prosecutor, his lordship chose not to deliver an opinion on the applicability of the doctrine:
“… it was therefore unnecessary for us to consider the question whether or not Parliament has power to so amend the Constitution as to alter its basic structure whatever that may be.”
Simon expresses the hope that with the probable passing of the PAS bill it might be an appropriate time for the Federal Court to reconsider whether this doctrine has application to Malaysia’s complex system of government.
Actually he need wait no longer. The Federal Court in the case of Sivarasa decided that such a doctrine applies.
In the erudite words of the then Federal Court judge, Gopal Sri Ram: “Further, it is clear from the way in which the Federal Constitution is constructed there are certain features that constitute its basic fabric.
“Unless sanctioned by the Constitution itself, any statute (including one amending the Constitution) that offends the basic structure may be struck down as unconstitutional.
“Whether a particular feature is part of the basic structure must be worked out on a case by case basis. Suffice to say that the rights guaranteed by Part II which are enforceable in the courts form part of the basic structure of the Federal Constitution.”
He cited in support the 1973 Indian Supreme Court case of Keshavananda Bharati v State of Kerala.
This Federal Court decision was cited with approval by the High Court in SIS Forum (Malaysia) v Dato’ Seri Syed Hamid bin Syed Jaafar Albar (Menteri Dalam Negeri), where Mohamad Ariff J, (later Court of Appeal judge) referred to the Federal Court judgment of Sivarasa which “has now determined that the rights guaranteed by Part II, which are enforceable by the courts of law, ‘form part of the basic structure of the Federal Constitution’.”
More recently, Suriyadi FCJ speaking for the Federal Court in Yang Dipertua, Dewan Rakyat & Ors v Gobind Singh Deo (2014), clarified that the doctrine of separation of powers remains a (basic – my addition) feature of our Constitution.
Instructive also is Hamid Sultan JCA’s dissenting judgment in Nik Noorhafizi bin Nik Ibrahim & Ors v Public Prosecutor which cited the Indian case of Keshavananda Bharati in holding that fundamental rights cannot be amended to the extent that it affects the basic structure of the Constitution.
The proliferation of these cases affirming the basic structure judicial jurisprudence has now enervated our Federal Constitution.
How it will be applied to the PAS bill, if it is enacted and a legal challenge mounted on its constitutionality, remains the million ringgit question.
Gurdial Singh Nijar is former professor of law at Universiti Malaya, and now a consultant at Messrs Sreenevasan. He is also Deputy President of HAKAM.