JUSTICE Nallini Pathmanathan’s Federal Court judgments have increasingly become a vehicle for ideological projection rather than constitutional interpretation. Beneath the formalism and legal rhetoric lies a jurisprudence that is not only activist in nature but structurally destabilising. Her role in shaping the Basic Structure Doctrine (BSD) in Malaysia goes beyond legal reasoning — it reflects a concerted attempt to entrench judicial supremacy at the expense of parliamentary sovereignty and constitutional clarity.

I.      Rewriting Article 121(1) by Omission

Justice Nallini’s repeated reliance on the BSD conveniently sidesteps the 1988 constitutional amendment to Article 121(1). This amendment, which explicitly subordinated judicial power to jurisdiction conferred by federal law, is rarely engaged with honestly in her reasoning. Rather than addressing its clear legislative intent, she constructs an abstract doctrine of “inherent judicial power” that sits outside the constitutional text. In cases like Dhinesh Tanaphll, Zaidi Kanapiah, and her dissent in Maria Chin, the 1988 amendment is treated as irrelevant — a position that has no basis in the Federal Constitution or precedent such as Sugumar Balakrishnan or Kok Wah Kuan.

II.     Selective Use and Mischaracterisation of Precedent

Justice Nallini frequently elevates dissents (e.g., Richard Malanjum’s view in Kok Wah Kuan) to override binding majorities without acknowledging stare decisis. In Dhinesh Tanaphll, she undermines Maria Chin by dismissing its majority as incoherent, claiming it “resurrects” overruled precedent. Yet in doing so, she contradicts Sugumar Balakrishnan — a judgment that directly addressed ouster clauses — by invoking BSD without acknowledging the different interpretive context. This cherry-picking of precedent shows an agenda-driven analysis rather than a faithful application of judicial principles.

III.    Language and Tone as a Weapon

Nallini’s judgments are laced with judicial overreach cloaked in emotional appeals and rhetorical excess. Her use of pathos is unmistakable — phrases like “to protect the soul of the Constitution” or “implosion of the Federal Constitution” are crafted to win public approval rather than legal argument. Her tone is dismissive towards judges who disagree with her, often questioning their coherence, consistency, or even integrity — thinly veiled as “respectful disagreement.” This disrupts judicial courtesy and undermines the credibility of dissent.

IV.   Strategic Silencing of Article 159 and Article 121(1)

Nowhere in her BSD-centred judgments does she engage seriously with the procedural safeguards of Article 159 on constitutional amendments. By bypassing the rigorous amendment process embedded in the Constitution, she places her interpretation above the text. Similarly, her silence on the express language of Article 121(1) is deafening. The implication is clear: she seeks to insulate judicial power from democratic constraints.

V.    Hidden Motives and Institutional Capture

The pattern of reasoning in her judgments reveals a deeper agenda — to reconstruct the role of the judiciary as a super-legislature, shielded by the BSD. This interpretive trend undermines democratic institutions and paves the way for ideological entrenchment. Her consistent alignment with CJ Tengku Maimun’s judicial activism suggests not merely doctrinal consistency but factional loyalty, with the BSD serving as a doctrinal shield for the judiciary’s political encroachment.

Conclusion

The Peril of Judicial Exceptionalism

Justice Nallini’s BSD jurisprudence poses a structural threat to Malaysia’s constitutional order. It prioritises abstract values over constitutional text, reimagines judicial power untethered from legislative frameworks, and destabilises legal certainty. Her judgments are not merely flawed — they are symptomatic of an institutional drift towards unchecked judicial activism, where the Constitution becomes whatever the apex court declares it to be.

If this trajectory continues, Malaysia risks replacing parliamentary supremacy with judicial oligarchy — an unelected and unaccountable elite operating beyond democratic reach.

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