COMMENT | Basic Structure Doctrine the last lock on Pandora's Box?

COMMENT | This is an excerpt: In ancient Greek myth, Prometheus, a daring Titan, stole fire from Olympus, the abode of the gods. He gifted its brilliance to humankind, awakening their minds and spirits.

Outraged by this defiance, Zeus resolved to punish mortals. He commanded the creation of Pandora, a woman radiant with beauty, intellect, and irresistible curiosity. Into her hands, Zeus placed a mysterious sealed jar, warning her never to open it.

But curiosity tugged at Pandora’s heart. One fateful day, she lifted the lid, unleashing sorrow, sickness, and all the world’s woes. In despair, she closed it swiftly - yet inside, only Hope (Elpis) quietly remained: a final gift to humanity.

The constitutional Pandora’s Box

Our Constitution is akin to Pandora’s Box ‘in reverse’ - not a vessel of evil, but a treasury of precious guarantees: fundamental liberties, democracy, the rule of law, and racial and religious harmony.

What catastrophe might befall us if a transient parliamentary majority could unlock this box, releasing these treasures into oblivion?

The Basic Structure Doctrine (BSD) stands as that final lock – the ultimate safeguard keeping our constitutional Pandora’s Box securely fastened.

This doctrine articulates a simple, yet profound, principle. Certain constitutional elements are so fundamental to human life and liberties that Parliament cannot touch those rights. They remain beyond the reach of Parliament’s power to amend the Constitution, even when such amendments comply with procedural rules.

Without this doctrine, any two-thirds majority in Parliament could fundamentally alter a nation’s constitutional identity. That is not democracy. That is the tyranny of numbers.

Three critics have mounted a vociferous challenge to this doctrine: former chief justice Abdul Hamid Mohamad, former attorney-general Apandi Ali, and an anonymous writer.

This article demonstrates why their criticisms crumble when subjected to proper constitutional scrutiny, comparative jurisprudence, and reasoned analysis.

The three-legged stool

Picture our constitutional system as a three-legged stool: the first leg represents democracy and elections. The second embodies fundamental rights and liberties. And the third constitutes the separation of powers and judicial independence.

The seat is the rule of law. To explain: “The rule of law” means everyone, including the government, is equally subject to the law.

“Separation of powers” divides government into three independent organs: Parliament (legislative), the ruling government (executive), and the courts (judiciary). The separation of powers into three institutions prevents abuse. It ensures checks and balances between these three organs.

Remove any single leg, and the entire structure collapses. The BSD merely acknowledges this self-evident reality. Parliament may certainly reshape or recolour the stool through amendments. It cannot, however, saw off any leg without destroying the stool itself.

The critics contend Parliament wields unlimited power with a two-thirds majority. By this logic, Parliament could vote to eliminate judicial review, abolish elections entirely, or eradicate fundamental rights. Such actions would not merely modify our constitutional democracy - it would transform it into something entirely unrecognisable, much as converting a stool into firewood. That destroys its essential character and purpose.

The case that preserved Indian democracy

To comprehend the BSD properly, we must journey to India in the early 1970s and consider the story of an unassuming Keralite monk named Kesavananda Bharati.

In 1951, the Jawaharlal Nehru administration proposed widespread land reform. Yet Indian courts steadfastly opposed any law that violated any citizen’s fundamental rights. To circumvent this judicial resistance, Parliament amended the Constitution to immunise certain laws from judicial scrutiny.

In 1963, the state of Kerala passed certain laws. This allowed it to acquire lands belonging to Kesavananda’s monastery. He challenged this state action. His advocate, the legendary Nani Palkhivala, presented a revolutionary argument: Parliament’s power to amend the Constitution, while broad, could not “tear at the very fabric of the Constitution’s fundamental structure”, thus destroying it.

By a landmark judgment (Kesavananda Bharati v State of Kerala, 1973), the Indian Supreme Court agreed by the narrowest of margins. It established that while Parliament could amend any particular constitutional provision, it could not alter the Constitution’s “basic structure.” Hence, “Basic Structure Doctrine”.

Democracy, federalism, and judicial review - these core elements stood beyond amendment.

This ruling faced an immediate test. Shortly thereafter, then-prime minister Indira Gandhi was convicted of election fraud. She commanded a two-thirds majority, enough to amend the Constitution.

And so Indira attempted to amend the Constitution to shield herself from the legal consequences of corruption. The Supreme Court struck down her constitutional amendment. It preserved India’s democracy from descending into a personalised dictatorship.

Justice HR Khanna’s words resonate with timeless wisdom: “The Constitution is not a plaything of a majority; it is the nation’s guiding light.”

Global constitutional safeguard

The BSD is not uniquely Indian. It had existed long before Kesavananda Bharati, and continues to thrive and manifest itself throughout the world in various forms:

Germany’s Basic Law (1949) includes an “eternity clause” that places human dignity and democratic governance beyond amendment. This safeguard emerged directly from the traumatic experience of how Adolf Hitler legally exploited the Weimar Constitution’s amendment provisions to establish a dictatorship.

The Kenyan High Court held that the people’s constituent power to “create a new constitution” is distinct from Parliament’s “limited power to amend it”: (Timothy M Njoya & 6 others v Attorney General & 3 others [2004]).

The court ruled Parliament cannot change, replace, or abrogate the Constitution without a process grounded in the “people’s sovereign will”: e.g. a constituent assembly and a mandatory referendum.

Drawing on Kesavananda Bharati, the court affirmed that “implied limits” exist on amendment powers. This established the BSD as part of Kenyan constitutional law. It also curbed “parliamentary overreach”.

Canada’s Supreme Court recognised unwritten constitutional principles limiting amendment powers in the Quebec Secession Reference (1998).

Even Islamic nations - Pakistan and Bangladesh among them - have embraced the BSD. Pakistan’s Supreme Court acknowledged “implied substantive limits” on Parliament’s power to amend the Constitution. Bangladesh’s court firmly ruled that Parliament cannot alter “unchangeable basic structures” of the Constitution.

Islamic Nations and BSD

Pakistan’s Constitution (1973) declares Islam as the state religion, which recognises sovereignty as belonging to Allah.

Nevertheless, the Constitution itself remains the supreme legal text.

In Constitutional Petition No. 12 of 2010, eight judges held that there exist “implied substantive limits” on Parliament’s amendment powers. The court declared: “This court is vested with jurisdiction to interpret the Constitution to identify its salient features and examine whether amendments have repealed, abrogated or altered these features.”

What are “salient features” but “basic structures?”

Bangladesh maintains constitutional supremacy while accommodating religious sensibilities. Its original 1972 Constitution emphasised secularism, yet the Eighth Amendment (1988) declared Islam the state religion.

Secular laws derived from British India continue to predominate in most domains.

In Bangladesh Italian Marble Works Ltd v Bangladesh (2006), the Supreme Court invalidated the Fifth Amendment. It confirmed that Parliament lacks the authority to amend the “unchangeable basic structures of the Constitution.”

These examples illustrate how constitutional primacy and Islamic principles coexist compatibly. The BSD has proven entirely harmonious with Muslim-majority states.

Malaysia’s BSD Journey

Malaysia initially rejected the BSD in Loh Kooi Choon v Government of Malaysia (1977). However, following the 1988 judicial crisis - when Parliament (in my opinion, ineffectively) amended Article 121(1) to strip courts of their inherent judicial power - the judiciary reconsidered its position.

In Semenyih Jaya (2017), the Federal Court recognised judicial independence as an integral part of the Constitution’s basic structure. In Indira Gandhi (2018), the Court extended BSD principles to protect parental rights and religious freedoms.

These landmark decisions restored the judiciary’s essential role as the ultimate guardian of constitutional integrity. Crucially, this aligned Malaysia with global democratic jurisprudence.

Dismantling flawed arguments

Did India “abandon BSD” in the case of Anjum Kadari?

Hamid erroneously claims the Indian Supreme Court “retreated from BSD in Anjum Kadari v Union of India’ (2024)”. This represents a fundamental misreading of the judgment. The court merely clarified that BSD applies to constitutional amendments, not ordinary statutes.

Former chief justice of India Dhananjaya Yeshwant Chandrachud explicitly confirmed that BSD remains “a protective mechanism specifically for constitutional amendments.”

The doctrine continues to restrict Parliament’s amendment power precisely as before.

Does “BSD undermine parliamentary sovereignty”? Hamid asserts Parliament possesses “absolute amendment power” under Article 159.

Suppose that is correct. Could we take this argument to its logical conclusion? Could Parliament make a law amending the Constitution to the effect that “Blue-eyed babies are to be forcibly separated from their biological parents”? This argument overlooks Article 4(1), which states, “This Constitution is the supreme law of the Federation.”

Unlike Britain, Malaysia has no doctrine of “parliamentary supremacy”. The Constitution reigns supreme. In 1976, then-chief justice Suffian Hashim put the concept of “parliamentary supremacy” beyond reach.

He ruled in Ah Thian v Government of Malaysia (1976): “Our Constitution is the supreme law; Parliament’s powers are subordinate to it.”

Rebutting claims

Hamid erroneously links BSD with “secularism”. He suggests that it “imports” undefined foreign concepts. This mischaracterisation was refuted by the Federal Court in Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55, which established that while Islam is the religion of the Federation, Malaysia operates under “secular law, having its sources in the common law.”

The judgment confirms that BSD does not impose secularism. It in fact preserves the constitutional balance between civil and Islamic jurisdictions established at independence.

BSD protects all constitutional features - even including Islam’s status under Article Three and some “special position of the Malays” under Article 153.

It functions as a shield for every constitutional provision, not as a sword against any particular one.

Apandi characterises “BSD enforcement” as “judicial activism” (that means judges should not make law). This argument completely ignores the courts’ constitutional mandate. From the Yang di-Pertuan Agong to judges to MPs - every public officer swears to uphold the Constitution.

One cannot genuinely uphold the Constitution while simultaneously claiming the power to destroy its fundamental character.

This allegation by an anonymous writer is demonstrably false. In PP v Khong Teng Khen (1976), the court recognised that Article Eight’s “guarantee of equality” operates “subject to” Article 153’s “special position of the Malays”.

BSD protects these provisions from arbitrary removal.

BSD safeguards Malaysia’s pluralistic social compact rather than undermining it.

Historical warnings

History provides sobering lessons about Parliament’s unchecked power to amend the Constitution:

In Germany, the Weimar Constitution’s unlimited amendment provisions allowed Hitler to legally dismantle democracy.

In Uganda, the Supreme Court sidestepped BSD principles, permitting the president to remove age limits. The president changed the Constitution to allow it. This allowed one man to rule for life. As one commentator noted with bleak accuracy: “African dictatorships never lose elections.”

BSD functions as the firewall against such democratic deterioration - it is the last defence against constitutional collapse.

Judiciary under attack

The timing of these criticisms warrants scrutiny.

This timing cannot be dismissed as coincidental. For years, the judiciary has faced relentless attacks - for what? For merely upholding the rule of law against powerful political figures.

These criticisms emerge precisely when Malaysia’s judiciary’s “Old Guard” prepares for retirement. These are a core group of senior judges who have so far unwaveringly refused to allow powerful politicians to escape, through a side door, multiple corruption charges.

Yet, tellingly, when judges refused to yield to public pressure, the government resorted to a legal device which only the government, not the courts, can implement: “discharges not amounting to acquittals”. Then, astonishingly, the government seemed imply that the judges were to be blamed for these outcomes.

The fear is, political influence is being brought to bear to influence future judicial officers, and thereby weaken constitutional safeguards.

Keeping Pandora’s Box securely locked

In Greek mythology, Pandora’s curiosity unleashed countless evils. In constitutional terms, abandoning BSD would similarly unleash the evils of authoritarianism upon our democracy.

The BSD represents the final lock on our constitutional Pandora’s Box.

It ensures that temporary parliamentary majorities, no matter how substantial, cannot destroy the very system from which they derive legitimacy. It is not a foreign imposition. It is not judicial overreach. It is not anti-Malay or anti-Islamic.

Rather, it stands as the guardian of Malaysia’s Constitution, protecting it against those who would undermine it from within.

In my respectful opinion, the critics are attempting to pick this lock. They must not succeed. The Constitution is not a political instrument, but a covenant between generations.

BSD is the principle that declares: “This far, and no further.”

That is why BSD must remain.

That is why it constitutes the last lock on Pandora’s Box.

And that is why we must defend it with unwavering resolve.

GK GANESAN is a lawyer and an international commercial arbitrator.

The author thanks UK Menon, G Naidu, KN Geetha, TP Vaani, JN Lheela, and Lydia Jaynthi.

Malaysiakini has obtained permission to republish this article, which first appeared here.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

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