Sacred doctrine, selective silence: How pro-BSD judges undermine Islam and Article 153”

INTRODUCTION

The Basic Structure Doctrine (BSD), a judicial invention cloaked in the rhetoric of constitutional purity, has been hailed by some Federal Court judges as a bulwark against tyranny. Yet, its champions have shown a glaring and troubling pattern: they never invoke the BSD to defend Article 3 (Islam as the religion of the Federation) or Article 153 (the special position of the Malays and natives of Sabah and Sarawak). This is not an oversight — it is a revealing silence that exposes a deeper ideological bias. While the doctrine is aggressively used to protect judicial power, it is suspiciously absent when the constitutional identity of the Malay-Muslim nation is at stake.

I. The Doctrine of Convenience: BSD as a Shield for the Judiciary, Not the Nation

The BSD was revived in Semenyih Jaya, Indira Gandhi, and Alma Nudo, with judges like Nallini Pathmanathan, Tengku Maimun, and Harmindar Singh portraying it as a noble tool to preserve judicial independence. But their silence on Articles 3 and 153 suggests BSD is a doctrine of selective utility — one used to entrench judicial ideology rather than protect the Constitution in its entirety.

There has never been a single instance in any Federal Court decision where BSD has been applied to shield Islamic provisions or Malay privileges. Why has no judge ever said that Article 3 or 153 is part of the basic structure and therefore beyond repeal? The answer lies in a discomfort—perhaps even hostility—towards the ethno-religious foundation of the Malaysian Constitution.

II. Marginalising Article 153: A Judicial Blind Spot with National Consequences

Article 153 is no minor clause. It is the legal expression of the Malaysian social contract. Its omission from BSD analysis by pro-BSD judges is both intellectually dishonest and constitutionally reckless.

If judicial independence is considered part of the basic structure, why not the explicit mandate to safeguard the position of the Malays and natives of Sabah and Sarawak? The doctrine’s champions must answer why they have consistently failed to provide doctrinal protection to Article 153 while zealously protecting abstract notions of judicial review and separation of powers.

This is not merely negligence — it signals a form of constitutional revisionism through the courts.

III. Islam in the Periphery: The Legal Marginalisation of Article 3

Similarly, Article 3 has never been robustly defended through the BSD lens. Not in Sivarasa, not in Alma Nudo, not in Indira Gandhi, and certainly not in Nik Elin v Kelantan, where judges dissected state powers over Syariah criminal law without once affirming Islam’s constitutional supremacy as a protected basic feature.

This silence is telling. It suggests that while BSD is invoked to prevent Parliament from restricting judicial powers, the same judges are unwilling to use it to prevent erosion of Islam’s status under the Constitution. The judiciary, in effect, has created a hierarchy of constitutional values — one that elevates liberal legalism and downplays the centrality of Islam.

IV. The Double Standards of the BSD Elite

Why is Article 121(1) declared “sacrosanct,” but Article 3 is not? Why is the power of judicial review called “inviolable,” but the Malay Rulers’ role as guardians of Islam is judicially ignored?

This inconsistency is not innocent. It reflects the ideological worldview of certain judges — many of whom are self-described constitutional “progressives” — who are willing to expand judicial power but not defend Malaysia’s Islamic identity or Malay-Muslim rights.

In using BSD as a weapon to entrench judicial supremacy, these judges have become political actors cloaked in judicial robes. Their selective silence on Articles 3 and 153 is not a matter of oversight. It is a strategic omission that signals a deeper agenda: to reengineer the Constitution under the pretext of defending it.

V. Consequences for National Unity and Institutional Trust

The Rulers, the Prime Minister, and the Islamic community must understand the gravity of this double standard. The very judges claiming to “defend the Constitution” are engaged in a selective rewriting of it— shielding judicial power while leaving Islam and the Malays unprotected.

This approach risks judicial overreach, constitutional imbalance, and deep public distrust. If the judiciary is seen as defending only certain values while ignoring others essential to Malaysia’s identity, it forfeits its claim to impartiality and undermines the unity of the nation.

Conclusion: Time to Expose the Judicial Hypocrisy

The pro-BSD faction must be called out. Their silence on Articles 3 and 153 is not a minor gap — it is a fatal flaw. They have used the BSD to empower themselves, not to protect the Constitution as a whole.

Until they affirm that Islam, Malay rights, and the Rulers’ constitutional role are part of Malaysia’s immutable legal foundation, their credibility as defenders of the Constitution remains deeply suspect.

It is time the nation asks: why do these judges fight to preserve judicial power — but not the Malay-Muslim pillars of the Constitution?

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