TheMalaysiaPress
INTRODUCTION
The Federal Constitution of Malaysia vests the Malay Rulers with a unique and sacred responsibility — one that blends sovereignty, religion, tradition, and constitutional duty. But beneath the surface of recent constitutional discourse lies a creeping judicial doctrine that threatens to quietly erode that very position: the Basic Structure Doctrine (BSD).
While BSD is framed as a safeguard of the Constitution’s “core features,” it is being used increasingly to aggrandise judicial power while ignoring or marginalising the historic and constitutional role of the Malay Rulers. This is not a theoretical concern — it is a real and immediate threat to the authority, dignity, and influence of the Rulers under Malaysia’s constitutional monarchy.
I. The Rulers’ Constitutional Role: Beyond Ceremonial
Under the Federal Constitution, the Malay Rulers hold far more than symbolic status:
i. Article 3(2): The Ruler is the Head of Islam in his own state.
ii. Article 38: The Conference of Rulers has a consultative and veto role on key national matters including:
iii. Amendments to provisions concerning the special position of the Malays,The role of Islam,The functions and privileges of the Rulers themselves.
iii. Article 153: Entrusts the Yang di-Pertuan Agong to safeguard the special position of the Malays and natives of Sabah and Sarawak.
The Constitution was never meant to be read as a purely secular document. It reflects a delicate compromise between democracy and monarchy, between secular governance and Islamic tradition, between multiracial inclusion and Malay primacy. The Rulers are not just participants in that balance — they are its custodians.
II. BSD: A Judicial Tool That Sidesteps the Rulers
The BSD, as now interpreted by several judges in the Federal Court, allows the judiciary to strike down even constitutional amendments if they believe those amendments violate some unwritten “basic structure”. But in asserting this power, the courts have done something deeply troubling: they have left the Malay Rulers entirely out of the equation.
Nowhere in BSD case law — Semenyih Jaya, Indira Gandhi, Maria Chin, Dhinesh Tanaphil — do we find:
Any serious consideration of the constitutional role of the Rulers.
Any affirmation that the Rulers’ position is itself part of the so called basic structure.
Any recognition that the Rulers are constitutionally required to be consulted on issues involving Islam, Malay rights, or their own privileges.
Instead, BSD judgments often elevate judicial power above Parliament, ignore the Rulers, and reduce key Malay-Muslim provisions like Article 3 and Article 153 to optional considerations.
This is not neutrality. This is judicial recentering of the Constitution away from the Rulers — and towards an ideology that sees monarchy and religion as historical relics, not constitutional essentials.
III. The Real Threat: Erasure Through Omission
What makes BSD so dangerous is not what it says, but what it refuses to say.
Judges routinely declare “judicial independence” and “fundamental liberties” as part of the basic structure.
Yet they remain silent on the constitutional monarchy, the role of Islam, and the prerogatives of the Rulers.
This silence is not benign — it sets a precedent. By not affirming the Rulers’ place as fundamental, future courts may treat their position as expendable, amendable, or inferior to other constitutional values.
In short: the Rulers are being written out of the basic structure of the Constitution, not through amendments — but through judicial omission.
IV. Rulers Must Act Now
This is not the time for quiet diplomacy. It is a moment of constitutional reckoning. The Malay Rulers must now:
1. Publicly Affirm Their Position as a Core Constitutional Pillar
Declare that the monarchy, Islam as the religion of the Federation, and Malay privileges are immutable elements of Malaysia’s constitutional identity.
Demand their recognition within the Constitutional framework
2. Call for Judicial Restraint and Accountability
Where courts expand their own powers while ignoring constitutional actors like the Rulers, the Conference must voice concern and demand justification.
The Rulers must insist on meaningful consultation before major constitutional reinterpretations.
3. Mobilise National Institutions
The Rulers can and should seek the support of state muftis, Islamic councils, and cultural institutions to defend the integrity of Article 3 and Article 153.
Public discourse must be steered back to recognising that the Rulers are not ceremonial — they are guardians of the constitutional order.
Conclusion: If the Rulers Do Not Defend Their Role, No One Will
The Basic Structure Doctrine is being championed as a shield for the Constitution. But in reality, it is becoming a sword used to sever the Constitution from its Islamic and monarchical roots.
The Rulers were entrusted by the nation’s founders to uphold Malaysia’s spiritual and cultural identity. If they remain silent while the judiciary rewrites the Constitution around them, they risk losing not just influence — but legitimacy itself.
Now is the moment to act. The Malay Rulers must speak as one voice: the monarchy is not just a feature of our past — it is the foundation of our future.
*The writer is an advocate and solicitor, and actively involved in legal and constitutional discourse in Malaysia
Ben Ibrahim
S.Abdullah
