TAN Sri Zainun Ali’s recent opinion piece purporting to defend the Basic Structure Doctrine (BSD) is riddled with analytical lapses and revisionist tendencies, particularly in how she handles the 1988 constitutional amendment to Article 121(1).

In her eagerness to defend her own legacy in Semenyih Jaya, Zainun has glossed over constitutional reality and misrepresented binding precedent. In contrast, Tun Hamid’s interpretation of Article 121(1) is firmly grounded in constitutional text, parliamentary intent, and precedent from Malaysia’s highest court.

The 1988 amendment to Article 121(1) cannot be ignored

The original text of Article 121(1) vested “the judicial power of the Federation” in the two High Courts. The 1988 amendment radically altered this by removing that phrase and replacing it with: “There shall be two High Courts… and such jurisdiction and powers as may be conferred by or under federal law.”

This was not mere drafting style—it was a deliberate legislative act with constitutional significance. Parliament intended to confine the jurisdiction and powers of the judiciary to those expressly conferred by law.

Zainun, however, has treated this watershed moment as if it were a constitutional irrelevance. In her telling, the courts retain unenumerated judicial power—regardless of the express removal of the phrase from the Constitution.

This flies in the face of constitutional interpretation. Article 159 allows constitutional amendments with the necessary supermajority. Once amended, it is binding. Judicial power post-1988 exists only as conferred by federal law, not by implication or inherited from pre-amendment jurisprudence.

Zainun’s reliance on Semenyih Jaya and Indira Gandhi to reclaim pre-1988 powers is judicial resurrectionism at odds with constitutional supremacy under Article 4(1).

Tun Hamid recognised the real impact of the amendment

In PP v Kok Wah Kuan, Tun Hamid interpreted Article 121(1) in light of its amended form. He expressly rejected any notion that judicial power is self-executing or inherent. Instead, he rightly stated that post-amendment, the judiciary has only such powers as Parliament confers.

Whether one agrees with that outcome or not, it is a faithful reading of the constitutional text as amended—a respect for the rule of law and legislative supremacy. It is also consistent with Ah Thian v Government of Malaysia [1976], where Suffian LP said: “The doctrine of the supremacy of Parliament does not apply in Malaysia. Here we have a written constitution.”

Zainun, by contrast, argues that judicial power is part of the “basic structure” and cannot be removed. But this ignores the critical fact that Article 121(1) was amended through lawful constitutional processes. If the judiciary may override or nullify constitutional amendments through implied doctrines, the Constitution ceases to be supreme—the judiciary becomes supreme.

Zainun misrepresents precedent on Article 121(1)

Zainun fails to engage with Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002], where the Federal Court made it clear that ouster clauses could survive in a post-1988 legal regime.

The Court upheld Section 59A of the Immigration Act, expressly stating that the courts were bound by the limits of judicial review set by Parliament. The Sugumar judgment cannot be reconciled with the proposition that judicial power is unalterable or absolute.

Zainun conveniently omits Sugumar, just as she sidesteps Loh Kooi Choon v Government of Malaysia [1977], which confirmed that the Constitution could be amended—even to abolish fundamental rights—so long as the amendment followed the procedures in Article 159.

Instead, she cherry-picks Sivarasa, Semenyih Jaya, and Alma Nudo, creating a selective narrative that ignores the wider corpus of apex court jurisprudence.

Basic structure doctrine is not in Article 4(1)

Zainun’s boldest assertion is that Article 4(1) “houses” the Basic Structure Doctrine. This is intellectually untenable. Article 4(1) states that laws inconsistent with the Constitution are void. It says nothing about unamendable principles or implied structural limits.

If Parliament amends the Constitution through Article 159, the resulting amendment is part of the Constitution, not a law “inconsistent” with it.

Tun Hamid is right to observe that the BSD is an Indian import. In Kesavananda Bharati, the Indian Supreme Court created the doctrine to curb Parliament’s amendment power.

But Malaysia’s Constitution contains express mechanisms in Articles 159 and 161E that regulate amendments—including special safeguards for Sabah, Sarawak, and the Malay Rulers. There is no textual or doctrinal need to imply unamendable content when the Constitution has already provided for how it may be changed.

Zainun is defending her own legacy—not the law

Zainun’s defence of BSD is not dispassionate legal analysis. It is an attempt to preserve the judicial narrative she helped shape in Semenyih Jaya. But judges must serve the Constitution—not their reputations. Her failure to engage with the 1988 amendment and her omission of binding decisions like Sugumar and Kok Wah Kuan suggest a result-driven agenda, not objective constitutional reasoning.

By contrast, Tun Hamid’s position is grounded in legal principle, not post-retirement legacy. He interprets the Constitution as it stands—not as he wishes it to be.

Constitutional integrity cannot be rewritten by rhetoric

If Malaysia is to remain a constitutional democracy, it must respect the hierarchy of its laws. Judges do not have the power to override constitutional amendments passed in accordance with Article 159. Nor should retired judges attempt to revise the constitutional history they themselves once upheld. Zainun’s rewriting of Article 121(1) is not legal interpretation—it is legal fiction.

Tun Hamid is right: the Basic Structure Doctrine has no foundation in Malaysia’s constitutional text. It is time to return to constitutional clarity—and end the judicial activism that risks upending the very structure it purports to protect.

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