O Bitter Pill to Swallow: Separating Ratio from Dicta in Maria Chin Abdullah

Abstract

This article discusses the Malaysian Federal Court's decision in Maria Chin Abdullah v DG of Immigration in January 2021. It critiques the majority judgment of Rahman Sebli FCJ, and of the fate of the basic structure doctrine at Malaysian law post-Maria Chin. Whilst other decisions (such as Rovin Joty v Lembaga Pencegahan Jenayah) have changed the legal landscape since the article was first written, we argue that the doctrine continues to exist at Malaysian law, albeit in a presently uncertain state.

The article also considers the underlying disagreement between the majority and dissenting judges in Maria Chin, namely the constitutionality of the 1988 amendment to art. 121 of the Federal Constitution. Whilst disagreeing with the 'reading down' argument made by Tengku Maimun CJ, we suggest an alternative route where the basic structure doctrine is read into art. 121, thus answering at least part of the formalist challenge to the basic structure doctrine's existence. Ultimately, however, striking down the 1988 amendment is the best way to lay this issue to rest.

Keywords: Basic Structure Doctrine, Malaysia, Constitutional Law, Semenyih Jaya, Indira Gandhi, Alma Nudo, Maria Chin, Ouster Clause, Article 121