INTRODUCTION

The Federal Court of Malaysia, once a beacon of stability in constitutional adjudication, today faces an unprecedented internal crisis.

Its judges are sharply divided over the fundamental question of whether the Basic Structure Doctrine (“BSD”) — the principle that certain core features of the Constitution are unamendable — forms part of Malaysian law.

This division has not only fractured the Judiciary’s institutional integrity.

It has also invited a new and growing trend: an upsurge of opportunistic constitutional challenges mounted by litigants who seek to exploit the uncertainty.

As a result, several important areas of Malaysian law now hang precariously, riddled with inconsistencies, awaiting definitive answers that the divided Federal Court seems increasingly unable to provide.

The Rise of Opportunistic Constitutional Challenges

In the past, constitutional challenges were rare, reserved for cases of genuine constitutional gravity.

Today, however, litigants are emboldened — because they perceive, correctly, that the apex court is deeply split.

Many challenges are now launched not because the constitutional grounds are genuinely strong, but because there is a realistic chance of finding a sympathetic judicial faction.

Examples of such opportunistic behaviour include:

• Routine invocation of constitutional rights to attack legislation previously upheld without controversy.

• Challenging procedural statutes (e.g., rules of evidence, detention powers, taxation mechanisms) on alleged “basic structure” grounds.

• Mounting attacks against constitutional amendments themselves, alleging implied limitations under the BSD, even when no prior Malaysian case law clearly supported such limitations.

In short: the Federal Court’s division has turned constitutional litigation into a calculated gamble, not a principled exercise.

Legal Uncertainty and Inconsistency

As opportunistic constitutional challenges multiply, several areas of Malaysian law have become uncertain and inconsistently applied:

1. Preventive Detention Laws

Laws such as the Prevention of Crime Act (POCA) and the Security Offences (Special Measures) Act (SOSMA) have been subjected to repeated challenges, with inconsistent results across different panels.

2. Judicial Review Powers

The scope of judicial review — whether courts can review executive actions “inherent” to Article 121 of the Federal Constitution — has fluctuated depending on which camp of judges hears the case.

3. Parliament’s Amending Power

There is now deep uncertainty about whether Parliament can amend provisions affecting fundamental liberties, judicial independence, or electoral processes — and what limits, if any, apply.

4. Administrative Law Principles

Basic administrative doctrines such as “proportionality” and “legitimate expectation” are inconsistently applied in constitutional contexts, depending again on judicial ideology.

The Direct Link to the Federal Court’s Division

This explosion of constitutional challenges is not coincidental. It is the direct product of the Judiciary’s visible division, caused by:

• Contradictory Federal Court rulings:

The same constitutional provision (e.g., Article 4, Article 159) has been interpreted differently by different panels without any reconciling authority.

• Absence of Authoritative Settlements:

The Chief Justice has not convened a full Bench or Constitutional Panel to definitively settle the Basic Structure Doctrine’s application, leaving room for conflicting interpretations.

• Public Perception of Judicial Factionalism:

When litigants perceive that certain judges lean toward aggressive constitutional scrutiny while others favour textual restraint, they adjust their litigation strategies accordingly.

The Cost to the Nation

The consequences of this judicial fracture are profound:

1. Erosion of Legal Certainty

Malaysia’s legal system has long prized certainty and predictability. When laws are constantly under attack, with outcomes depending on judicial composition, legal certainty collapses.

2. Undermining Parliamentary Sovereignty

The Legislature’s constitutional authority to enact and amend laws becomes a paper tiger if opportunistic litigants can, with some success, knock down laws on uncertain constitutional grounds.

3. Disruption of Governmental Functioning

Policies and laws that are critical to national security, public order, and economic management risk paralysis if their legal foundations are continuously subjected to destabilising challenges.

4. Damage to Judicial Credibility

The Judiciary’s image as a neutral and stable institution is gravely damaged when it appears vulnerable to internal ideological battles and external manipulation.

What Must Be Done

If Malaysia is to restore stability to its constitutional system, urgent action is required:

• Settle the Status of the Basic Structure Doctrine:
• A Full Bench of the Federal Court must authoritatively decide the doctrine’s status, ending the current uncertainty.

Reassert Judicial Discipline:

• The Judiciary must impose internal consistency by adhering to binding precedent and resisting factional judicial law-making.

Reinforce the Limits of Constitutional Litigation:

• The Federal Court must articulate clear thresholds for constitutional challenges to prevent the court from being weaponised by opportunistic litigants.

Leadership Renewal:

• Malaysia needs a Chief Justice who can unite the courts, not deepen their ideological divisions.

Conclusion

The Judiciary’s division over the Basic Structure Doctrine has not stayed within the walls of the Federal Court.

It has spilled into the corridors of litigation strategy, emboldening litigants to mount increasingly speculative constitutional challenges.

It has left vital areas of the law fractured, unstable, and at the mercy of judicial factionalism.

If the Judiciary does not heal itself — if it does not close ranks around principle rather than personality — Malaysia’s constitutional order may soon find itself adrift, weakened by the very institution tasked with defending it.

The time to act is now.

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