The Law and Politics of Unconstitutional Constitutional Amendments in Malaysia

Abstract

This chapter explores the rising trajectory of the unconstitutional constitutional amendments doctrine in Malaysia. The Malaysian experience with the basic structure doctrine reveals a story about judicial power and constitutional politics. The chapter situates the courts’ interaction with the political branches of government against the broader dynamics of dominant coalition power that has fractured into a deeply fragile democracy. It traces the evolution of the Malaysian judiciary’s engagement with the basic structure doctrine: from initial judicial resistance to the apex court’s recent jurisprudence establishing and entrenching the judicial review of unconstitutional constitutional amendments in Malaysia. It focuses on three principal cases that demonstrate the rise of the basic structure doctrine in Malaysia’s contemporary constitutional jurisprudence: Semenyih Jaya, Indira Gandhi, and Alma Nudo. While judicial embrace of the basic structure doctrine is not ubiquitous, what seems clear is that the notion of judicial review of constitutional amendments now occupies a central part in judicial reasoning and constitutional practice in Malaysia. This chapter argues that although judicial approaches toward the basic structure doctrine still demonstrate some unevenness, the seeds of the doctrine of unconstitutional constitutional amendments have taken root, and begun to thrive, in Malaysia’s constitutional soil.