INTRODUCTION

Former Federal Court Judge Zainun Ali’s recent opinion piece praising the Basic Structure Doctrine (BSD) and attacking former Chief Justice Tun Hamid Mohamad is not merely tendentious — it is constitutionally unsound, intellectually imprecise, and jurisprudentially dangerous. Zainun’s opinion piece advocating for the Basic Structure Doctrine in Malaysia is fraught with misinterpretations, selective reasoning, and questionable motivations.

Her piece glorifies a controversial doctrine that was never part of Malaysia’s constitutional tradition and misrepresents the legal reality affirmed in multiple binding decisions of our apex court.

This article sets the record straight, dismantling her arguments and defending Tun Hamid’s fidelity to the Federal Constitution.

1. Misreading Anjum Kadari: A Dangerous Distortion

Her misrepresentation of the Anjum Kadari case, selective use of Malaysian case law, and overreliance on Article 4(1) do not withstand critical scrutiny. It is imperative for legal discourse to be grounded in accurate interpretations and objective analysis, free from personal biases and legacy preservation efforts.

The Supreme Court of India’s decision in Anjum Kadari v. Union of India (2024) provides significant insights into the application of the Basic Structure Doctrine (BSD) concerning ordinary legislation. In this case, the Court clarified that the BSD, established in Kesavananda Bharati v. State of Kerala (1973), is primarily a tool to assess the validity of constitutional amendments and does not extend to ordinary statutes unless a specific constitutional provision is violated.

The Court emphasized that while principles like secularism are integral to the Constitution’s basic structure, a statute cannot be invalidated solely on the grounds that it infringes upon these broad principles. Instead, there must be a demonstrable violation of a specific constitutional provision. This approach ensures that the judiciary does not overstep its boundaries by assessing legislation based on abstract principles without concrete constitutional infringements.

In the context of the Anjum Kadari case, the Court upheld the Uttar Pradesh Madarsa Education Act, 2004, stating that the Act aimed to regulate educational standards within Madarsas and did not violate any specific constitutional provision. The Court’s decision underscores the importance of evaluating legislation based on explicit constitutional criteria rather than broad, undefined principles.

Therefore, the interpretation presented by Tan Sri Zainun Ali, suggesting that the BSD can be applied to ordinary legislation without a specific constitutional violation, does not align with the Supreme Court of India’s stance in the Anjum Kadari case. Her perspective appears to extend the application of the BSD beyond its intended scope, potentially leading to judicial overreach.

In contrast, Tun Hamid’s interpretation aligns more closely with the Supreme Court’s reasoning in Anjum Kadari, advocating for a restrained and constitutionally grounded application of the BSD. His approach emphasizes the necessity of identifying specific constitutional violations when challenging the validity of legislation, thereby maintaining the balance between legislative authority and judicial review.

Zainun claims that the Indian Supreme Court’s Anjum Kadari decision supports BSD’s permanence. This is a gross misreading. Anjum Kadari merely affirmed the existing Indian position stemming from Kesavananda Bharati, a doctrine that India has adopted due to its specific constitutional history. Unlike India, Malaysia’s Federal Constitution was enacted by a sovereign Parliament and lacks a preambular statement or directive principles akin to India’s — points explicitly highlighted in Phang Chin Hock v. PP [1979] and reaffirmed in Rovin Joty.

Moreover, the BSD in India arises from Article 368’s unique limitations — a feature absent in Article 159 of Malaysia’s Constitution. Her conflation of foreign precedent with local jurisprudence is not only careless but borders on legal transgression.

2. Ignoring Authoritative Precedent: Loh Kooi Choon and Phang Chin Hock

Zainun conveniently omits binding authority: Loh Kooi Choon v. Government of Malaysia [1977] 2 MLJ 187 and Phang Chin Hock [1980] 1 MLJ 70, where the Federal Court after a thorough analysis categorically rejected the BSD and held that Parliament’s power to amend the Constitution is plenary, subject only to the procedural safeguards in Article 159.

Raja Azlan Shah FJ in Loh Kooi Choon made it clear: “If it was intended that Part II of the Constitution was unamendable, it would have been so stated in clear terms.” This clarity contrasts sharply with Zainun’s vague invocation of “eternal” constitutional features not found in any express provision.

3. Misuse of Article 4(1): No Room for Judicial Supremacy

Zainun implies that Article 4(1) empowers the Judiciary to strike down constitutional amendments that violate some undefined “basic structure.” She argues that Article 4(1) of the Federal Constitution embodies the BSD. This is a constitutional misinterpretation.

Article 4(1) subjects “laws” to constitutional scrutiny — but constitutional amendments made under Article 159 are part of the Constitution itself, not subordinate “laws.” This distinction was underscored in Phang Chin Hock, where Suffian LP held that Article 4 does not extend to constitutional amendments. This provision does not imply the existence of immutable constitutional principles beyond the reach of parliamentary amendment.

To interpret Article 4(1) otherwise is to empower the Judiciary with constituent power — an absurd inversion of the doctrine of separation of powers.

However, Article 4(1) merely states that the Constitution is the supreme law of the Federation and that any law inconsistent with it shall be void..

Zainun’s interpretation stretches the text of Article 4(1) beyond its reasonable meaning, reflecting a desire to read into the Constitution what is not explicitly stated.

4. The Danger of Amorphous Judicial Power

Zainun’s embrace of BSD leads to dangerous consequences: it permits unelected judges to define and entrench their own preferred values as “unamendable” — a judicial hijack of constituent power. This was forcefully condemned in Rovin Joty, where the Federal Court warned against importing foreign doctrines that create “amorphous” and “uncertain” standards for constitutional interpretation.

Her defence of BSD is not judicial restraint; it is judicial despotism cloaked in rhetoric.

5. Tun Hamid Defended the Constitution, Not “Attacked the Judiciary”

Zainun accuses Tun Hamid of undermining judicial independence. This accusation is unfounded. Tun Hamid merely restated the constitutional orthodoxy that Parliament may amend the Constitution so long as Article 159 is followed. This position is echoed not only in Loh Kooi Choon and Phang Chin Hock, but also by Justice Zabariah in Rovin Joty, who emphasized the inapplicability of BSD to Malaysia’s legal system.

If defending constitutional clarity is “attacking the judiciary,” then our legal tradition is no longer grounded in the Constitution, but in feelings and factions.

6. Selective Use of Malaysian Case Law

Zainun cites cases like Semenyih Jaya and Sivarasa Rasiah to argue for the existence of BSD in Malaysia. However, these cases do not conclusively establish BSD as a constitutional principle. For instance, in Sivarasa Rasiah, the court emphasized the importance of fundamental liberties but did not explicitly endorse BSD. Similarly, Semenyih Jaya focused on judicial independence without establishing BSD as a binding doctrine. Zainun’s selective citation of these cases reflects a biased approach aimed at supporting her predetermined conclusion.

7. Questionable Motivations and Legacy Preservation

It is noteworthy that Zainun was part of the bench in the Semenyih Jaya case, which she heavily relies upon in her argument. This raises questions about her objectivity and suggests a possible attempt to defend her judicial legacy. Her vigorous defence of BSD, despite its tenuous grounding in Malaysian constitutional law, appears more as an effort to validate her past judgments than a dispassionate legal analysis.

8. BSD Undermines Democratic Will and Legal Certainty

The Federal Constitution vests ultimate authority in a Parliament elected by the people. By contrast, BSD vests undefined veto power in unelected judges who claim to know what the “basic structure” is — an inherently subjective and shifting concept. As explained in Zaidi Kanapiah, allowing judges to invalidate amendments passed under Article 159 gives them power above the Constitution.

This is not the rule of law — it is judicial supremacy. And it destroys democratic accountability.

Conclusion: The Real Threat to the Constitution

Zainun’s article does not defend the Constitution; it defends an elitist reinterpretation of it. Her glorification of BSD is a veiled attempt to grant the judiciary unchecked power under the pretext of constitutional fidelity. Tun Hamid’s views, far from being regressive, are grounded in the very fabric of our constitutional order — text, history, and precedent.

The real danger lies not in Tun Hamid’s fidelity to the Constitution, but in Zainun’s call to subvert it through the backdoor of judicial imagination.

Call to Action

The public, legal fraternity, and Parliament must reclaim the Constitution from ideological colonization. Constitutional interpretation must remain rooted in the words of the Constitution and the judgments of courts that respect the separation of powers — not speculative doctrines imported from foreign soil and weaponized for judicial activism.

*The writer is an advocate and solicitor, and actively involved in legal and constitutional discourse in Malaysia