The Basic Structure Doctrine in Malaysia

Themes and Perspectives
Erscheinungsjahr 2025
ISBN: 978-1-5099-8552-4
Verlag: Bloomsbury Academic

Buch, Englisch, 368 Seiten, Hardback, Format (B × H): 156 mm x 234 mm, Gewicht: 454 g

This book presents an in-depth interrogation of the theory and application of the Basic Structure Doctrine in the Federation of Malaysia.

The Basic Structure Doctrine, famously introduced in the 1973 Indian Supreme decision of Kesavananda Bharati v State of Kerala AIR - which held that certain core or fundamental features in the Constitution of India could not be amended by Parliament even if it met all procedural requirements - was initially rejected when it was first argued in Malaysia in the 1975 case of Loh Kooi Choon v Government of Malaysia and lay dormant for the next three decades.

Judicial winds shifted in 2010 when Malaysia's apex court, the Federal Court, cited Kesavananda with approval in the case of Sivarasa Rasiah v Badan Peguam Malaysia & Anor, and observed that it was 'clear from the way in which the Federal Constitution is constructed that there are certain features that constitute its basic fabric' and that 'any statute (including one amending the Constitution) that offends the basic structure may be struck down as unconstitutional.' In a quick succession of cases, the Federal Court cemented this doctrine in Malaysia's jurisprudence and deployed it to defend the court's judicial power. These widely-publicised cases generated much debate beyond the legal fraternity and judiciary and often polarised different sectors of Malaysian society.

This collection of essays responds to this extremely important debate on the limits of constitutional amendments as a form of constitution-making in Malaysia by considering the theory behind the Basic Structure Doctrine and critically examining how it has been harnessed by the Federal Court and by other political actors - most notably Islamists and secularists; and royalists and republicans - on the ground.

Autoren/Hrsg.

Tan, Kevin Yl

Lee, Hp

Thio, Li-Ann

Neo, Jaclyn L

Fachgebiete

• Rechtswissenschaften Recht, Rechtswissenschaft Allgemein Rechtsvergleichung
• Rechtswissenschaften Ausländisches Recht Common Law (UK, USA, Australien u.a.)

Inhaltsverzeichnis

Introduction: Constitutional Amendments and the Basic Structure Doctrine in Malaysia: An Overview, Kevin YL Tan (National University of Singapore) and HP Lee (Monash University, Australia)

Part I: Theoretical Overview
1. Constitutional Change and the Basic Structure: A (Trans)Portable Concept? Rueban Balasubramaniam (Carleton University, Canada)
2. Government Structures, Westminster Constitutionalism, and the Basic Structure Doctrine, Andrew J Harding (National University of Singapore)
3. Charting Changes to the Charter: Constitutional Amendments and the Basic Structure, Kevin YL Tan (National University of Singapore)

Part II: Malaysia: General Perspectives
4. Constituting and Deconstituting the Constitution: Some Contentious 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. Unravelling the Gordian Knot: Judicial Power and the Basic Structure Doctrine in Malaysia, Wilson Tay (Taylor's University, Malaysia)
7. Constitutional Amendments and the Basic Structure in Malaysia, James Chin (University of Tasmania, Australia)
8. Defending Constitutional Supremacy Through the Basic Structure Doctrine: Challenges and Constraints of Judicial Adjudication on Rights, Sovereignty and Constitutionalism in Malaysia, Emily Ho (UN High Commissioner of Refugees, Switzerland)
9. Sovereignty of the Malay Rulers in a Constitutional Monarchy, Mohd Nazim Shaari (Universiti Teknologi MARA, Malaysia)
10. Political Parties in Parliamentary Democracy: Lacuna in the Malaysian Constitution's Basic Structure, Wong Chin Huat (Sunway University)

Part III: Comparative Perspectives
11. The Basic Structure Doctrine in Constitutional and Parliamentary Supremacies, Erin Delaney (Northwestern University, USA)
12. Basic Structure as 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)

Über Autor(innen)

Lee, Hp
HP Lee is Professor Emeritus at the Faculty of Law, Monash University, Australia.

Tan, Kevin Yl
Kevin YL Tan is a leading scholar of Singapore's constitution and has written and edited over 30 books on the law, politics and history of Singapore. He is currently Adjunct Professor at both the Faculty of Law, National University of Singapore and the S Rajaratnam School of International Studies, Nanyang Technological University. He is also Executive Editor of the Asian Journal of Comparative Law and Editor-in-Chief of the Asian Yearbook of International Law.

Kevin YL Tan is Professor (Adjunct) at the Faculty of Law, National University of Singapore.
HP Lee is Professor Emeritus at the Faculty of Law, Monash University, Australia.