—Yvonne Tew, Anne Fleming Research Professor & Professor of Law, Associate Dean for Graduate & International Programs, Georgetown Law; and Zheng Hong See, PhD Candidate in Law, Tunku Abdul Rahman Scholar, St Catharine’s College, University of Cambridge
Malaysia’s contemporary jurisprudence on the basic structure doctrine (BSD)—and its attendant idea of implicit unamendability under the doctrine of unconstitutional constitutional amendment—has become one of the most significant developments in its constitutional landscape over the past decade. At its core, the Malaysian basic structure doctrine reflects the judiciary’s effort to safeguard its institutional role and the constitutional balance of power vis-à-vis the legislature and executive,[1] particularly in the long shadow of the 1988 judicial crisis and the subsequent constitutional amendment to Article 121(1) that removed explicit reference to judicial power being vested in the courts.[2]
Against this backdrop, the Malaysian apex court has invoked a doctrine of constitutional unamendability–the Malaysian basic structure doctrine–to restore judicial power and reassert its position as a co-equal branch of government. Through the Malaysian variant of the BSD, the Malaysian Federal Court has sought to safeguard fundamental constitutional principles from abusive amendments and to preserve core structural commitments as immutable.
This piece offers a contemporary account of the development of the Malaysian basic structure doctrine: (i) the doctrine’s multi-staged evolution, from inception to entrenchment; (ii) how the Malaysian Federal Court has carved its own path in formulating a locally grounded version of the doctrine of constitutional unamendability, locating its legitimacy in the text and structure of Malaysia’s Federal Constitution; and (iii) the pivotal role of a unified judicial front in entrenching the doctrine’s constitutional foothold as the Federal Court constructs an enduring framework to safeguard rights and core constitutional values, an endeavour of constitutional statecraft.[3]
I. Trilogy of trilogies of the Malaysian Basic Structure Doctrine
Era 1 (2017 – 2019): The Rise (Semenyih Jaya, Indira Gandhi, Alma Nudo)
The trilogy of Semenyih Jaya, Indira Gandhi, and Alma Nudo marked the modern beginning of the Malaysian judiciary’s engagement with the basic structure doctrine in Malaysia.[4]
Historically, Malaysian courts had not been inclined toward the notion of implicit constitutional unamendability, although none of them had completely rejected it either (see Kelantan v Tunku Abdul Rahman (1963); Loh Kooi Choon (1977); Phang Chin Hock (1980)). These earlier cases reflected a judicial posture that accepted broad parliamentary amendment power while leaving open the possibility of conceptual limits in the future.[5]
The 2017 Semenyih Jaya case was a watershed. The Federal Court expressly adopted a form of the basic structure doctrine in reviewing the constitutionality of a statute compelling judges to adopt the opinion of lay assessors in determining compensation for land acquisitions. The unanimous five-member panel declared the statute unconstitutional because it usurped the judicial power of the court under Article 121(1) of the Constitution. The Court maintained that the 1988 constitutional amendment to Article 121(1) removing the textual vesting of judicial power in the courts did not subjugate the judiciary to Parliament, because “Parliament does not have power to amend the Federal Constitution to the effect of undermining the features of [the doctrine of separation of powers; and the independence of judiciary]” ([74]-[76]). Despite invoking the BSD, however, the Court stopped short of invalidating the 1988 amendment.
Next came the 2018 landmark case of Indira Gandhi.[6] The Federal Court invoked the basic structure doctrine in determining the jurisdictional authority between the civil courts and the Syariah courts in a case involving the purported unilateral conversion of non-Muslim minors into Islam. Departing from the earlier trend of civil courts automatically deferring jurisdiction to the religious courts, the five-member bench held that the civil courts retained jurisdiction over all constitutional issues, even when the subject matter relates to Islam or Islamic law. The Court clarified that Article 121(1A)—inserted as part of 1988 amendments—does not and cannot exclude this jurisdiction from civil courts because it “constitutes the judicial power essential in the basic structure of the Constitution” ([79]-[107]). Although Article 121(1A) remained intact, the Court effectively nullified the 1988 amendment by interpretation, reasserting the civil courts’ constitutional supervisory role.
The 2019 Alma Nudo case resoundingly endorsed the basic structure doctrine, as applied in both cases above. The unanimous nine-member Federal Court panel, in striking down provisions of the Dangerous Drugs Act for violating constitutional fundamental rights, affirmed that the “courts can prevent Parliament from destroying the ‘basic structure’ of the [Federal Constitution]” ([73]).
Era 2 (2021): The Defence (Maria Chin, Rovin Joty, Zaidi Kanapiah)
Three cases in 2021, however, revealed a deep judicial rift regarding the position of the basic structure doctrine within the Malaysian constitutional scheme. All three concerned the constitutionality of parliamentary legislation purporting to oust or circumscribe the powers and jurisdiction of the courts.
Maria Chin epitomised the judicial dissonance. The Federal Court was split four-three, with the majority upholding the constitutionality of an immigration statute that ousted judicial review. In distinguishing the trilogy of cases from Era 1, the principal judgment by Justice Abdul Rahman Sebli opined that the basic structure doctrine has no place in Malaysia because Article 121(1), being a provision of the supreme constitution, “cannot be suborned to any doctrine…including the Indian basic structure doctrine.” On this view, it followed that Article 121(1) must be interpreted in its post-1988 amended version and given its full force ([550]-[562]). Interestingly, although the concurring judgment by Justice Mary Lim cited the Era 1 trilogy affirmatively, it considered the BSD discussion unnecessary ([797]). The dissents, however, vigorously defended the applicability of the BSD in safeguarding judicial power within the constitutional supremacy framework enshrined in Article 4(1). They held that constitutional supremacy necessarily compels the rejection of a self-defeatist reading of judicial power under Article 121(1) ([47]-[83], [259]-[282], [301]-[334]).
A similar judicial pattern emerged in Rovin Joty (a four-one majority upholding the constitutionality of a preventive detention statute ousting judicial review) and Zaidi Kanapiah (a three-two majority upholding the constitutionality of a preventive detention statute circumscribing a magistrate’s discretion in issuing a detention order). The majority judgments doubled down in characterising the BSD as a “foreign doctrine” incompatible with Malaysian constitutional context, and therefore inapplicable (Rovin [396]-[417]; Zaidi [246]-[272]). These conclusions were met with forceful dissents, which highlighted the textually grounded and structurally inherent “basic structure” within the Malaysian constitutional framework (Rovin [104]-[128]; Zaidi [94]-[95]).
Later in 2021, the majority in Goh Leong Yong concluded that the Era 2 trilogy had sounded the death knell of the basic structure doctrine in Malaysia ([160]). As the Era 3 cases demonstrate, though, that prediction proved premature.
Era 3 (2022-present): The Resurgence (Dhinesh Tanaphll, Nivesh Nair (No. 2), Ketheeswaran)
Another trilogy of Federal Court cases revived the position of the basic structure doctrine within Malaysian constitutional jurisprudence.
The 2022 Dhinesh Tanaphll case marked a turning point. The three-member panel unanimously upheld the continued applicability of the basic structure doctrine established in the Era 1 trilogy, and applied it to invalidate a preventive detention statute that ousted the courts’ jurisdiction to scrutinise any decision of the Prevention of Crime Board except for procedural irregularities. According to the Court, “the supremacy and priority” of the Constitution guaranteed by Article 4(1) “sets boundaries to constitutional amendment” ([123]) and therefore Article 4(1) “affords a clear, definitive and express basis” for the BSD ([193]). Moreover, Dhinesh highlighted the “irreconcilable differences” between the principal and concurring judgments in Maria Chin, concluding that no clear ratio decidendi could be discerned from the purported majority ([46]-[94]).
In April 2022, two weeks after Dhinesh, a five-member bench in the unreported case of Nivesh Nair (No. 2) unanimously affirmed Dhinesh as well as the dissenting judgments in Maria Chin and Zaidi Kanapiah ([1]). As the Court unambiguously held: “Every legal power must have legal limits and it is for the Courts to determine such limits in accordance with the law” ([2]).
Then, in 2024, another unanimous five-member panel in Ketheeswaran Kanagaratnam further upheld Nivesh (No. 2). It also unequivocally endorsed the dissenting judgments in Maria Chin and Zaidi Kanapiah as accurately reflecting the position of the basic structure doctrine in Malaysia. As the Court held, “the BSD … is essentially the doctrine of constitutional supremacy and constitutional judicial review in art 4(1) as complemented by its device of judicial power in art 121(1)” ([14]).
Taken together, the Federal Court’s jurisprudence since 2022 entrenches the basic structure doctrine, locating it firmly in Article 4(1) of the Malaysian Constitution. This reflects the current position of the BSD in Malaysia, situating the doctrine squarely within the text and structure of the Federal Constitution.
II. Toward a Locally Contextual Doctrine of Unamendability for Malaysia
The basic structure doctrine in Malaysia is distinctively local in two ways.
First, it arises from a context peculiar to the Malaysian Constitution—in response to the abusive 1988 constitutional amendment to Article 121(1), which purported to dilute if not remove the judicial power. It is thus invoked and applied differently in Malaysia. Notwithstanding its reference to the Indian case of Kesavananda Bharati at its gestational stage, the Malaysian starting point was immediately different. The Malaysian Federal Court was using the basic structure doctrine as a doctrinal tool to “interpretively nullify” the post-1988 Article 121(1) — that is, to “read it down” so as to restore the judiciary’s power and constitutional position, rather than striking it down outright.[7] In fact, to date, the Court has never formally nullified any constitutional amendment bill. Nonetheless, the Court has emphasised the existence of such a power to strike down under the BSD (see Dhinesh [175]-[201]).
Second, the basic structure doctrine derives its legitimacy from within the Malaysian Constitution itself. As illustrated by its developmental trajectory, the Federal Court incrementally grounded the BSD in constitutional supremacy arguments, effectively locating its constitutional basis in Article 4(1). This is not a mere afterthought (see Semenyih Jaya [75],[113]; Indira Gandhi [40]). What the Court in Era 3 (and the dissents in Era 2) accomplished was a doctrinal consolidation of the BSD, building upon the trilogy in Era 1. As Dhinesh emphasised, Article 4(1) constitutes “the essence or elan vité” of the Constitution, which not only prescribes itself as the supreme constitutional norm but also entrenches judicial power (including the power to strike down amendments) as an unamendable core. This textual foundation thus forms the basis for the Malaysian BSD and rejects any notion of it as a “foreign doctrine” ([112]-[125]).
From inception to entrenchment, the Malaysian Federal Court’s jurisprudence shows the development of a locally contextual version of the basic structure doctrine—moving steadily toward a distinctively Malaysian doctrine of constitutional unamendability.
III. Judicial Unanimity in Entrenching the Malaysian Basic Structure Doctrine
Judicial unanimity can play a pivotal role in empowering courts, as one of us has observed. So, too, in entrenching the basic structure doctrine in Malaysia. Notably, every Federal Court decision upholding the BSD in Era 1 and Era 3 was unanimous. This has two implications.
First, by presenting itself as a unified front, the Federal Court enhances the weight and legitimacy of its decisions in cases of high constitutional stakes, such as those involving constitutional unamendability. This projection of unanimity is crucial in empowering the court to reclaim its constitutional position with collective confidence. This unanimity stands in stark contrast to the judicial dissonance in Era 2, where the vigorous dissents ultimately prevailed. While the jurisprudential leadership of then Chief Justice Tengku Maimun and Justice Nallini Pathmanathan was instrumental,[8] particularly in entrenching the basic structure doctrine, the intellectual contributions of other judges should not be overlooked. Notably, a total of nineteen judges contributed to developing the BSD jurisprudence across Eras 1 and 3, underscoring the Malaysian BSD as a joint intellectual enterprise constructed collectively within the apex court.
Second, unanimity enables the Court to muster collective institutional strength in safeguarding fundamental rights while entrenching the basic structure doctrine, particularly in contentious cases. Consider the Indira Gandhi decision. The unanimous Federal Court, in enforcing the constitutionally enshrined right of parents to decide their minor children’s religion under Article 12(4), set aside the certificates of conversion issued by the Islamic religious authority and upheld the right to custody of the appellant, a Hindu mother, of her three children. The Court affirmed that the “protection of minority rights” constitutes an unalterable constitutional fundamental under the BSD in Malaysia ([28]-[31],[90]). Unanimity in this decision underpinned judicial courage in a fraught constitutional context, where the role of Islam in the public sphere remains a social, political, and legal fault line. A unified court is better positioned to navigate sensitive constitutional terrain.
Conclusion
The trajectory of the Malaysian basic structure doctrine, much like the courts’ broader efforts to reclaim their constitutional position, has not been linear. Even so, the sustained and unified statecraft of the Federal Court has crystallised a locally contextual version of the doctrine, firmly anchored in the text and structure of the Federal Constitution and now deeply embedded in Malaysian constitutional jurisprudence.
Suggested citation: Yvonne Tew and Zheng Hong See, The Contemporary State of the Basic Structure Doctrine in Malaysia, Int’l J. Const. L. Blog, Int’l J. Const. L. Blog, Dec. 2, 2025, at: http://www.iconnectblog.com/the-contemporary-state-of-the-basic-structure-doctrine-in-malaysia/
[1] This development can also be understood as part of a broader project of institutional ‘self-preservation,’ and, at times, ‘strategic empowerment.’
[2] This episode is widely regarded as the lowest ebb of Malaysian constitutional history, raising concerns about judicial independence and the constitutional separation of powers. See Andrew Harding, ‘The 1988 Constitutional Crisis in Malaysia’ (1990) 39 International & Comparative Law Quarterly 57; HP Lee, ‘Chapter 5: The Judiciary under Siege: The 1988 Crisis’ in Constitutional Conflicts in Contemporary Malaysia (2nd Edn, OUP 2017).
[3] This account also contributes to the broader literature on unconstitutional constitutional amendment by tracing the emergence of a distinctively Malaysian approach to unamendability. See e.g. Kevin YL Tan and HP Lee (eds), The Basic Structure Doctrine in Malaysia : Themes and Perspectives (Bloomsbury 2025); HP Lee and Yvonne Tew, ‘The Law and Politics of Unconstitutional Constitutional Amendments in Malaysia’ in Rehan Abeyratne and Ngoc Son Bui (eds), The Law and Politics of Unconstitutional Constitutional Amendments in Asia (1st edn, Routledge 2021); Jaclyn L Neo, ‘A Contextual Approach to Unconstitutional Constitutional Amendments: Judicial Power and the Basic Structure Doctrine in Malaysia’ (2020) 15 Asian Journal of Comparative Law 69; Wilson TV Tay, ‘Basic Structure Revisited: The Case of Semenyih Jaya and the Defence of Fundamental Constitutional Principles in Malaysia’ (2019) 14 Asian Journal of Comparative Law 113.
[4] The basic structure doctrine had been mentioned peripherally in the 2010 Sivarasa Rasiah case where the Federal Court held that “there are certain features that constitute [the Federal Constitution’s] basic fabric” and “any statute (including one amending the Constitution) that offends the basic structure may be struck down as unconstitutional” ([8]).
[5] See e.g. Justice Raja Azlan Shah’s dictum in Loh Kooi Choon: “The Constitution is not a mere collection of pious platitudes. It is the supreme law of the law embodying 3 basic concepts… ”. These three basic concepts, in his view, are: (1) non-derogable individual fundamental rights; (2) federalism; and (3) constitutional separation of powers.
[6] See Yvonne Tew, ‘Symposium: Indira Gandhi v Pengarah Jabatan Agama Islam Perak (2018): Landmark Case in Malaysia — IACL-IADC Blog’ <https://blog-iacl-aidc.org/2019-posts/2019/12/12/indira-gandhi-v-pengarah-jabatan-agama-islam-perak-2018-landmark-case-in-malaysia-1-3rmcd> accessed 16 November 2025.
[7] Yvonne Tew, Constitutional Statecraft in Asian Courts (OUP 2020) 98-104, 133-147.
[8] See Yvonne Tew, ‘Judicial Heroines and Constitutional Leadership on Malaysia’s Apex Court’ in Rosalind Dixon and Erin Delaney (eds) Judicial Heroines? Female Chief Justices and Court Presidents in Comparative Perspective (Edward Elgar, forthcoming).