TheMalaysiaPress
INTRODUCTION: Why This Rebuttal Matters
In response to recent criticisms against Tan Sri Zainun Ali’s unwavering advocacy of the Basic Structure Doctrine (BSD), her defenders have issued a five-point rebuttal aimed at vindicating her judicial position. However, upon closer examination, each point in that rebuttal crumbles under legal, constitutional, and logical scrutiny.
This article aims to expose the intellectual shallowness, selective reasoning, and doctrinal distortion underlying that defence. More critically, it unearths how BSD proponents — particularly Zainun, Nallini, and the Chief Justice — have consistently weaponized the doctrine to advance a narrow judicial ideology, all while marginalizing vital constitutional provisions like Article 3 (Islam as the religion of the Federation) and Article 153 (special position of Malays and natives of Sabah and Sarawak).
Here is a sharp, comprehensive rebuttal dismantling the pro-BSD defense of Tan Sri Zainun Ali.
The attempt to salvage Tan Sri Zainun Ali’s judicial legacy by cloaking it in constitutional heroism is intellectually dishonest, legally flimsy, and institutionally reckless. Each of the five so-called “rebuttals” presented in her defense crumbles under critical examination. Here’s why:
1. “Malaysia is not the UK – we are a constitutional democracy. Article 4(1) makes the Constitution supreme.”
Rebuttal to the rebuttal: This is a classic bait-and-switch. Yes, Malaysia is a constitutional democracy — but that does not mean the judiciary can invent unwritten doctrines that override express constitutional mechanisms. Article 4(1) ensures that ordinary laws cannot override the Constitution. It does not allow judges to rewrite the scope of Article 159, which governs constitutional amendments.
If the framers intended substantive limits on amendment power, they would have said so — as is done in Germany, India (Art. 368), and Ethiopia. Our Constitution contains no such limitation. Raja Azlan Shah FJ in Loh Kooi Choon and Suffian LP in Phang Chin Hock made this unequivocally clear: Parliament has the power to amend any part of the Constitution, so long as it follows the correct procedure.
BSD proponents distort Article 4(1) to hijack constitutional interpretation. It is not supremacy of the Constitution they are defending — it is the supremacy of their version of the Constitution.
2. “Zainun is defending the rule of law, not politicising the judiciary.”
Rebuttal to the rebuttal: What is more political than a retired judge — currently sitting on the Judicial Appointments Commission — publishing public op-eds defending her own legacy, while the Federal Court itself remains bitterly split on BSD?
Zainun’s article is not a neutral exposition of principle; it is a strategic self-defence of her own judgment in Semenyih Jaya, cloaked in public interest rhetoric. Her silence on how BSD is selectively applied — never once invoked to defend Islam (Article 3), Malay rights (Article 153), or the Malay Rulers — is telling. Her “constitutional morality” appears to only favour liberal rights, never foundational provisions that reflect Malaysia’s national identity.
This is not judicial restraint — it is ideological activism masquerading as legal principle.
3. “BSD is not written, but neither is judicial review. Doctrines can be judge-made.”
Rebuttal to the rebuttal: This is a dangerous conflation. Judicial review of executive and legislative action is explicitly grounded in Article 4(1), Article 121, and the common law. But BSD is not judicial review — it is judicial supremacy over Parliament’s amendment power.
To say that “it’s okay because courts can develop doctrines” is precisely the problem. There must be constitutional anchoring for such doctrines. The BSD is a radical claim that judges can strike down constitutional amendments passed by two-thirds of elected representatives, not just ordinary laws.
This is legislative veto by judicial fiat — and it’s being done without any textual support. Kesavananda Bharati itself was a narrow 7–6 split in India and has caused five decades of doctrinal confusion. Malaysia’s courts are now importing this dysfunction under the pretense of protecting democracy.
4. “Her views are consistent with international jurisprudence.”
Rebuttal to the rebuttal: This is the shallowest claim of all. Which international court? India? Germany? Kenya? None of their constitutions resemble Malaysia’s unique post-colonial, multi-ethnic structure — nor do they contain our version of Article 159.
Moreover, if Zainun wants to embrace Kesavananda, why has she and the BSD faction not acknowledged Anjum Kadari v Union of India (2024) where the Indian Supreme Court clarified that statutes cannot be struck down under BSD, and constitutional violations must trace to specific textual provisions?
Zainun and her allies cherry-pick what they want from India, ignore its reversals, and pretend that Article 159 doesn’t exist. This is not “regional consistency” — this is doctrinal manipulation.
5. “Without BSD, Parliament could abolish elections, courts, or liberties.”
Rebuttal to the rebuttal: This is pure fear-mongering. If such amendments were ever proposed, they would still require a two-thirds majority and often the consent of the Conference of Rulers. The real safeguard is political accountability, federalism, and royal assent — not judicial self-appointment as constitutional guardian.
Moreover, if BSD truly protects the Constitution’s core, why have BSD-aligned judges never invoked it to defend Article 3 (Islam) or Article 153 (Malay privileges)? Their silence is deafening. It proves that BSD is a selective ideological weapon, not a neutral doctrine of protection.
Conclusion:
Tan Sri Zainun’s position is neither constitutionally sound nor morally neutral. It is the post-retirement defence of a judge who helped smuggle an Indian-origin doctrine into Malaysian law through rhetorical sleight of hand. Her public advocacy now seeks to entrench that distortion — despite deep judicial division and growing public skepticism.
The Basic Structure Doctrine in Malaysia is not protecting democracy — it is undermining the Constitution’s procedural integrity and marginalising the very features that define our national identity. If Parliament and the Malay Rulers do not act now, they risk ceding their rightful powers to an unelected, ideologically-driven judicial oligarchy.
This rebuttal is not about personalities. It is about truth, consistency, and constitutional fidelity. And on all three counts, the BSD crusade fails miserably.
*The writer is an advocate and solicitor, and actively involved in legal and constitutional discourse in Malaysia
Ben Ibrahim
S.Abdullah
