EDITORIAL PREFACE

The Collapse of Judicial Courtesy and Collegiality in Malaysia’s Apex Court: A Judicial Civil War is a three-part exposé on the escalating crisis within the Federal Court of Malaysia. What began as a constitutional debate over the Basic Structure Doctrine has metastasised into open institutional fragmentation — marked by scathing judgments, moral condemnation, and rhetorical excess.

This series critically analyses how judicial dissents have transformed into public rebukes, how doctrinal disagreements are now framed as ethical failures, and how the language of collapse — “implosion”, “natural justice breaches”, “void judgments” — has replaced the language of reasoned deliberation. Through case-by-case dissection, it lays bare the erosion of mutual respect, collegiality, and institutional restraint at the highest level of Malaysia’s judiciary.

This is more than an academic discourse. It is a warning. When the judiciary ceases to deliberate and begins to denounce, the very foundation of constitutional democracy begins to fracture. These articles call for reflection, repair, and a return to the principles of judicial dignity — before irreparable damage is done.

Title: The Collapse of Judicial Courtesy and Collegiality in Malaysia’s Apex Court  – A Judicial Civil War [Part 1]

PART I: From Doctrine to Discord — How the Basic Structure Debate Fractured the Federal Court

Introduction

The Federal Court of Malaysia stands at a precipice. What once was a dignified forum of judicial deliberation has devolved into a battlefield of ideological conflict, personal rebukes, and institutional disdain. At the centre of this disintegration lies the Basic Structure Doctrine (BSD) — a once-academic theory that has become the lightning rod for the collapse of judicial collegiality. What began as a doctrinal disagreement has metastasised into a constitutional civil war.

This article traces how BSD-aligned judges, particularly Chief Justice Tengku Maimun, Justices Nallini Pathmanathan, Harmindar Singh Dhaliwal, and Rhodzariah Bujang, have employed language and tone in their judgments that go far beyond acceptable boundaries of dissent. Judgments that once served as vehicles for legal reasoning now resemble public indictments of fellow justices.

1.    Dhinesh Tanaphll [2022] 5 CLJ 1 — The Shattering of Judicial Unity

In this case, Justices Nallini Pathmanathan, Harmindar Singh Dhaliwal, and Rhodzariah Bujang delivered a majority judgment that directly called into question the coherence of opposing views in Maria Chin. The language adopted was not just critical but dismissive to the point of judicial disrespect.

“The principal and the concurring judgments display a clear lack of cohesion on this fundamental issue… the principal and concurring judgments are, to that extent, irreconcilable.” (paras 82 & 85)

“The binding nature of the precedent … comes under a cloud.” (para 86)

The phrase “comes under a cloud” signals more than disagreement; it impugns the reliability and legitimacy of the prior majority, subtly suggesting that it is unworthy of being followed.

Further, the characterisation of the majority as engaging in a “retrograde withdrawal” from constitutional development is not legal critique — it is reputational harm dressed in judicial robes.

“The clear departure in the principal judgment of the majority in Maria Chin amounted… to a retrograde withdrawal…” (para 143)

This rhetorical posture casts dissent not as an alternative interpretation, but as a rescue mission from incompetence and regression.

2.    Maria Chin [2021] 2 CLJ 579 — The Judicial Manifesto

The dissenting opinions of Chief Justice Tengku Maimun and Justice Nallini in Maria Chin epitomise a deliberate break from judicial restraint. Their dissents read not as collegial counterpoints, but as manifestos intended to embarrass and delegitimise the majority bench.

Justice Nallini’s opening phrase:

“For the full comprehension of the people of this nation…”

is remarkable in that it implicitly accuses the majority of legal opacity — of failing not only in law but in communication with the rakyat. It is a rare instance where the dissent is addressed not to fellow jurists, but to the public, as if to wage a parallel campaign of public persuasion.

“It is a legally incoherent proposition…”

“The judiciary is subordinate to laws… suggests the courts must close their eyes…”

“This is the very antithesis of constitutional supremacy.”

These are not mild objections — they are direct accusations of betrayal of constitutional principles, crafted with force and moral disdain.

The dissent also borders on mockery:

“In this day and age, namely the 21st century, it is wholly unsustainable to take the position…”

Such phrasing implies that the majority’s views are not merely wrong but obsolete — a relic of the past, unworthy of serious consideration.

Even more pointed is the accusation that the majority had abdicated judicial responsibility:

“Compliance with ouster clauses such as s. 59A… would amount to a violation or a failure to exercise their inherent judicial power.”

This effectively brands the majority as unfit to guard the Constitution, an extraordinary claim in a court meant to function on mutual respect.

Summary of Tone and Implications

In Dhinesh Tanaphll and Maria Chin, we witness a judicial tone that has shifted from dissent to disdain. Language that should be used with surgical precision is now wielded like a club, bruising institutional decorum and breaking down the very collegiality that defines apex court functioning.

The rhetorical trajectory—from subtle critique to overt condemnation—signals more than doctrinal divergence. It reflects a collapse in mutual respect, with judgments no longer confined to legal reasoning but expanding into territories of reputational attack and institutional scorn.

Coming Next in Part II:

The Judicial Purge — Delegitimising Precedent and Rewriting Legal History

We will examine how recent judgments under the Chief Justice’s leadership have systematically delegitimised earlier Federal Court decisions, effectively rewriting judicial orthodoxy and consolidating power within an ideological bloc.

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