INTRODUCTION

If Maria Chin and Dhinesh Tanaphll signalled the onset of judicial discord, what followed was a sweeping campaign to delegitimise, dismantle, and ultimately rewrite the jurisprudential legacy of Malaysia’s Federal Court. This phase, led by the Basic Structure Doctrine (BSD)-aligned faction of the court, no longer operated within the traditional boundaries of judicial debate. Instead, it took the form of a calculated purge — discrediting past precedents, sidelining opposing interpretations, and re-elevating dissents into pseudo-orthodoxy.

This part explores how the Federal Court’s language evolved from critique to repudiation. Judgments in Ketheeswaran Kanagaratnam, Zaidi Kanapiah, and Nivesh Nair exemplify a court engaged not just in interpretation, but in a rhetorical campaign to reframe Malaysia’s constitutional landscape while delegitimising alternative viewpoints and, implicitly, the judges behind them.

1.    Ketheeswaran Kanagaratnam [2024] 2 CLJ 341 — The Dismissal of Past Judgments

Delivered under the leadership of Chief Justice Tengku Maimun, this judgment systematically dismantled earlier Federal Court authority with dismissive finality. The rhetoric was uncompromising:

“We find it necessary to remind everyone that the majority judgment in Kok Wah Kuan has been overruled and is of no precedential value.” (para 17)

The phrase “remind everyone” carries a condescending tone that implies incompetence or disobedience. The assertion that entire cases have “no value” crosses from legal reasoning into judicial shaming.

Further, the suggestion that minority views now form the operative legal position reflects an alarming reversal of legal hierarchy:

“Considering that the minority judgments in Maria Chin and Zaidi Kanapiah now restate the law…” (para 17)

This ideological inversion of stare decisis destabilises legal clarity and prioritises internal alignment over precedent. It is a jurisprudential purge in everything but name.

2.    Zaidi Kanapiah [2021] 5 CLJ 581 — The Language of Crisis

This decision was laced with emotionally charged language, signalling a judiciary no longer content to interpret the Constitution — but determined to defend it from within, even against its own members.

Justice Vernon Ong’s dramatic warning is telling:

“…to cast away any attempt to cause the Federal Constitution to implode on itself by abuse of the legislative process…”

The word “implode” evokes institutional catastrophe and casts opponents as saboteurs. This is not cautious legalism—it is ideological warfare cloaked in constitutional fidelity.

Elsewhere, the tone moves from legal engagement to implied condemnation:

“The correctness of the decision of that smaller bench ought to be subjected to a higher scrutiny…” (para 211)

This remark — deliberately ambiguous — casts suspicion over unnamed colleagues. It accuses without naming, undermining judicial unity while preserving plausible deniability.

3.    Nivesh Nair Mohan [2021] 8 CLJ 163 — The Assault on Judicial Integrity

Perhaps the most alarming language in this purge emerges in Nivesh Nair, where the Federal Court, again led by CJ Tengku Maimun, accuses a previous majority of violating basic principles of natural justice:

“The majority judgment was clearly formulated on a crucial point which was not put to the parties — in breach of the rules of natural justice.” (para 25)

“We found it baffling and in defiance of candour…” (para 32)

These phrases carry deep institutional consequences. To accuse fellow Federal Court judges of breaching natural justice is to allege procedural impropriety — if not judicial misconduct. That such accusations were aired in a reported judgment reflects a breakdown in internal accountability and collegial trust.

Even more pointed is the Chief Justice’s conclusion:

“Non-compliance… goes to judicial integrity and courtesy.” (para 210)

This is not a legal disagreement. It is a public indictment of the character and integrity of fellow justices, framed as doctrinal fidelity. It implies not just error, but ethical failure.

Summary of Tone and Consequences

The judgments in this phase reflect a pattern of systematic delegitimisation:

Past judgments are declared to be of “no value” without substantive engagement.

Minority opinions are elevated as normative law, inverting the logic of majority rule.

Colleagues are accused — implicitly or explicitly — of judicial dereliction, procedural misconduct, or ethical lapses.

The tone may remain cloaked in the language of law, but the subtext is clear: this is an institutional reckoning. Opposing views are not engaged with — they are neutralised. Past majorities are not reasoned against — they are denounced. And judicial restraint is not honoured — it is discarded.

Coming Next in Part III:

Weaponised Dissent and the Erosion of Judicial Comity

We will examine how the use of increasingly emotive, alarmist, and accusatory language in judgments like Rovin Joty represents not just a rhetorical shift — but an existential threat to the legitimacy of Malaysia’s apex court.

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