The Basic Structure Doctrine in Malaysia | 2025

The Basic Structure Doctrine in Malaysia | 2025

This book offers a thorough examination of both the theory and practice of the Basic Structure Doctrine in Malaysia.

The Basic Structure Doctrine was first established by the Indian Supreme Court in Kesavananda Bharati v State of Kerala (1973), which held that certain essential features of India’s Constitution cannot be amended by Parliament, even if the procedural conditions are complied with. However, when the idea was introduced in Malaysia in Loh Kooi Choon v Government of Malaysia (1975), it was rejected and remained largely inactive for about thirty years. 

Things changed in 2010, when Malaysia’s highest court, the Federal Court, endorsed Kesavananda in Sivarasa Rasiah v Badan Peguam Malaysia & Anor. In that case, the Court noted that it is evident from the design of the Federal Constitution that some elements form its foundational make‑up, and that any law — including constitutional amendments — that violate this foundational structure may be unconstitutional. 

In a rapid series of subsequent rulings, the Federal Court entrenched the doctrine in Malaysian constitutional law, especially to protect judicial power. These decisions drew intense public interest, stirring debates across and beyond legal circles and causing divisions in various sectors of Malaysian society. 

This collection of essays responds to the vital debate about how far constitutional amendments can go in shaping (or reshaping) Malaysia’s constitution. It explores the doctrine’s theoretical foundations, and assesses how both the Federal Court and political actors — particularly Islamists vs secularists, and royalists vs republicans — have used, contested or interpreted it in practice.

Table of Contents of The Basic Structure Doctrine in Malaysia

Part I: Theoretical Overview
1. Executive Supremacy and Judicial Power: Legality as a Constraint on Consitutional Change, Rueban Balasubramaniam (Carleton University, Canada)
2. Government Structures, Parliamentary Constitutionalism and the Basic Structure Doctrine, Andrew Harding (National University of Singapore)
3. Charting Changes to the Constitution: Amendments and the Basic Structure, Kevin YL Tan (National University of Singapore)

Part II: Malaysia: General Perspectives
4. Constitutional Amendments in Malaysia: Some Emerging Issues, Shad Saleem Faruqi (University of Malaya, Malaysia)
5. The Basic Structure in Malaysia: Less than Meets the Eye, Benjamin Joshua Ong (Singapore Management University)
6. Judicial Power and the 'Basic Structure Doctrine' in Malaysia, Wilson Tay Tze Vern (Taylor's University, Malaysia)
7. Basic Structure Doctrine (BSD): A Political View from Sabah and Sarawak, James Chin (University of Tasmania, Australia)
8. Two Forks in the Road: Defending Constitutional Supremacy in the Face of Constitutional Amendments, Emily Ho (Lim Chee Wee Partnership, Malaysia)
9. Examining the Sovereignty of the Malay Rulers under the Basic Structure Doctrine, Mohd Nazim Ganti Shaari (Universiti Teknologi MARA, Malaysia)
10. Political Parties in Parliamentary Democracy: From Lacuna in the Malaysian Constitution's Basic Structure to Anti-Hopping Law, Wong Chin Huat (Sunway University, Malaysia)

Part III: Comparative Perspectives
11. Basic Structure Beyond the Written Constitution, Erin Delaney (University College London, UK)
12. Basic Structure as a Means for Judicial Self-Dealing or Self-Preservation? Placing Malaysia in the Broader Asian Context , Rehan Abeyratne (Western Sydney University, Australia)
13. Protection of the Judicial Power under the Basic Structure Doctrine: Lessons from Australia, HP Lee (Monash University, Australia) and Andrew Foster (Monash University, Australia)

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