Info Doctrine Basic Structure

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Khairil Azmin Mokhtar is with Lukman Sheriff and Yusfarizal Yussoff - Legal Insight.​

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Lukman Sheriff​

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https://www.facebook.com/#
Ramai yang hadiri semalam dan saya berterimakasih kepada penganjur yang menjemput saya semalam. Talk begini saya selalu beri bersama saudara Yusfarizal. Tetapi semalam first time bersama datuk dr Marzuki. Datuk melihat ini dari perspektif political science dan cukup baik dalam merungkaikan perjalanan perubahan ideologi yang berlaku di mahkamah sejak lama lagi. Saudara Yusfarizal kali ini memberi pendekatan berbeza dari yang lepas juga. Beliau menceritakan apa yang berlaku di india kini akibat BSD. Saya percaya BSD ini akan membawa banyak masalah pada negara kita sepertimana di india. Pertembungan antara branches of government akan ketara. Check dan balance menjadi lemah. Yang paling bahaya pada saya pertembungan dalam masyarakat. Pada saya judiciary tidak boleh membuat undang2. Kuasa ini adalah kuasa Parlimen. Kuasa rakyat. Sepertimana yang dikatakan oleh sultan Azlan Shah.

Terima Kasih sekali lagi kepada penganjur. Moga2 banyak lagi talk sebegini dapat diadakan.

 

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Marzuki Mohamad​

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Rakan2 fb yg berkelapangan silalah hadir.

Marzuki Mohamad​

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2024 basic doctrine

 

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Marzuki Mohamad​

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A Speech Delivered at 2024: Basic Structure Doctrine Seminar

Re-evaluating the Direction of Modern-Day Constitution
“Islam, Human Rights and the Changing Judicial Attitude in Malaysia”

10 January 2024
International Islamic University Malaysia
Assoc. Prof. Datuk Dr Marzuki Mohamad
Department of Political Science
IIUM

Bismillahirrahmanirrahim.
Assalāmu’alaikum wa rahmatullāhi wa barakātuh and salam sejahtera.

Distinguished guests, brothers and sisters, ladies and gentlemen.

First, I would like to thank Ahmad Ibrahim Kulliyyah of Laws and the IIUM Law Students’ Society for inviting me to speak at this event tonight.

Being a former student of this Kulliyyah back in the late 1990s, it is a great honour and privilege for me to address the students and the academic members of this Kulliyyah, some of whom are my former lecturers and friends, on such an important and timely topic of basic structure doctrine (BSD).

This doctrine, which was expounded by Dietrich Conrad, a German scholar, and promoted by Carl Schmitt, a German constitutional lawyer, was subscribed by Indian judges and finally found its way into the Malaysian judiciary through the judgments of the so-called progressive judges.

Put simply, the BSD refers to an implied limitations on constitutional amendments based on a particular notion that there are certain features of the constitution that the court regards as fundamental to it and therefore not amenable to any changes. Changing these features will change the identity of the constitution which the judges believe it is their constitutional duty to protect.

By invoking BSD, not only the judges may limit the legislature’s power to amend the constitution, but they may also strike down existing legislations passed by Parliament on the grounds that they are inconsistent with the basic structure of the constitution even though there are no express words in the constitution which say so. And the judges, may unilaterally and arbitrarily decide what constitutes the constitution’s basic structure.

It seems that, using BSD, the judiciary is moving in the direction of monopolizing and personalizing judicial power to the extent that it encroaches upon the power of the legislature to enact and amend laws. If left unchecked, this new trend of judicial attitude will lead to unfettered judicial supremacy that undermines the very basic principle of separation of powers.

Fundamental Features of the Constitution
Having said this, the most important question to ask is what constitute the fundamental features of the constitution that form its basic structure and original identity.

To answer this pertinent question, we must travel back in time to understand the historical, social and political context of our constitution and constitution-making. Only then can we identify the features that form its basic structure.

However, we must caution ourselves that doing this is not easy as there are competing narratives on the contextual root of our constitution and different imaginations about our nation.

Due to the pluralistic nature of the Malayan society at independence, the making of the Federal Constitution itself was wrought with hard bargaining among different ethnic communities who had different expectations and imaginations of their place in an independent Malaya.

The Malays as the son of the soil wanted Malaya for the Malays in which their special position which they had enjoyed since time immemorial is protected, Islam is the religion of the federation, Malay is the sole official and national language, and the Malay Rulers enjoy exalted and privileged position as constitutional monarchs.

The non-Malays on the other hand wanted Malaya for the Malayans in which they are granted common nationality, treated equally and free to speak their own language, profess their own religion and practice their own culture.
The framers of our constitution were therefore faced with a daunting task to strike a fine balance between these competing communal interests and do justice to all ethnic communities. Of course, justice in this context is a loaded word and a subjective concept. In a deeply divided society, justice for one ethnic community could be regarded as injustice by the other ethnic communities.

But again, even under these circumstances, it is not totally impossible to reach a compromise and attain a certain degree of “communal justice” by carefully crafting a balanced constitution where all ethnic communities may gain something out of the long list of interests that they fought for in return of certain concessions they made to the other communities.

Malaysia’s second Prime Minister, Allahyarham Tun Abdul Razak, in his speech at the second reading of the Constitution Amendment Bill on 23rd February 1971 succinctly described this concept that we may call communal justice. He said, and I quote:
“The basic provisions relating to the acquisition of citizenship represented a fair and balanced compromise. The same careful and balanced approach runs through the other provisions of the Constitution protecting the legitimate rights of all races in Malaysia. Thus, the provisions relating to the special position of the Malays are balanced by the guaranteed protection of the legitimate interests of the other communities and by the citizenship provisions to which I have referred. The provisions relating to the position of Bahasa Malaysia as the sole official and National Language is balanced by the guarantee for the use of the languages of other races other than for official purposes.

As regards the provision relating to the sovereignty of the Rulers, surely no one will disagree that their position should never be open to attack or challenge”.

Tun Razak continued his address to the Parliament by saying something that is very relevant to both proponents and opponents of the basic structure doctrine in identifying what constitute the basic features of our constitution. He said, and I quote:
“The careful and balanced provisions of our Constitution guaranteeing legitimate interests of all races in Malaysia are the very foundation upon which this nation exists. To challenge them is to challenge the very principle upon which the nation rests”.

What does this mean? It means, these competing communal rights and interests are so fundamental to the Malayan people’s imagination or “narrative” of an independent Malayan nation and its constitution.

So, to them, the concept of right should not only be confined to individual rights and liberties understood in its western secular-liberal fashion, but also communal rights defined in their own historical and cultural context. To them, the constitution must not only protect their rights as individuals against the excesses of state power, but also defend their rights as a community against the overzealousness of the other ethnic communities in influencing the state to pursue their ethnic interests.

Having said that, I am not saying that this is the only vision of the competing interests in our plural society and how the constitution was supposed to reconcile those interests. There was an alternative vision to it seen not from an ethnic but class perspective. The proponents of this class-based perspective, or the radical left, wanted to eliminate all racial differences and treat everybody as equals in their fight against colonialism. They also wanted the constitution to be crafted along these lines.

Unfortunately, this alternative approach to constitution-making did not see the light of the day. Nevertheless, its vision of freedom and equality construed in its secular socialist fashion persists until today in the minds of certain segments of Malaysian society, as well as in the core struggle of local organizations and political parties.

Now, here lies our problem in identifying the fundamental features that are supposed to form the basic structure of our constitution. Which features seen from which perspective are regarded as fundamental? Is it part II of the Federal Constitution which provides for individuals’ fundamental liberties or part III of the Federal Constitution and other related provisions which strike a fine balance between competing communal rights?

As a matter of fact, the constitution has built-in mechanisms to protect the provisions on communal rights enshrined in the constitution from arbitrary amendments by requiring that those provisions can only be amended by a two-thirds majority vote in both houses of Parliament and consent of the Conference of Rulers. Regarding Article 153, the Federal Constitution entrusted upon the Yang Di-Pertuan Agong a constitutional duty to protect the special position of the Malays and the natives of Sabah and Sarawak as well as the legitimate interests of other ethnic communities. As it is the duty of the YDPA to protect this provision, he can tell any Prime Minister who approaches him to get his consent to amend Article 153 that it is his constitutional duty to protect the provision and it is none of the Prime Minister’s business to amend it. If this stand is taken by the YDPA, I do not see the possibility of any government to obtain the YDPA’s consent to amend it. This shows how fundamental this provision is to our constitution.

Judicial Attitude
Now, following the decisions of the Indian courts, Malaysian judiciary has invoked BSD and confered upon itself the power to decide which feature of the constitution are fundamental to constitute BSD. So far, none of our judges consider Article 153 as a fundamental feature of our constitution.

Previously, the judges took a more conservative stand on policies of the government on matters deemed ‘sensitive’ to Malaysia’s multiracial society and the political compromises reached by the communal leaders.

Defending Article 153 on the special position of the Malays and the natives of Sabah and Sarawak in the Federal Constitution, former Lord President Tun Mohamad Suffian Hashim in his book “An Introduction to the Constitution of Malaysia” (1976) wrote:
“Protective provisions were written into the Malaysian constitution not with the intention of pulling back the advancement of the non-indigenous people but with the intention of securing the advancement of the indigenous people who, through no fault of their own, were and are educationally, socially and economically less advanced, and the leaders of the non-indigenous people consented to these provisions in return for generous citizenship terms that enabled a large number of them to become citizens by a stroke of the pen”.

In the same vein, the courts too, taking into consideration the sensitive and potentially inflammable nature of open debates on the issue of Bumiputera special privileges and the legitimate interests of other communities, adopted the more restrictive view of the right to freedom of speech and expression if such freedom amounts to questioning the special privileges guaranteed by the Constitution.

In 1969, Fan Yew Teng, former Deputy Secretary-General of the Democratic Action Party (DAP) and the editor of the party's official organ, the Rocket, was charged under the Sedition Act 1948 for publishing an article questioning Bumiputera’s special position. His counsel argued that he was entitled to his right to freedom of speech and expression as guaranteed by the Federal Constitution, and hence he should not be convicted for sedition.

Delivering the judgment in Public Prosecutor v Fan Yew Teng [1975] 1 MLJ 176 Justice Abdul Hamid said, and I quote:
“…one is free to say or express as one pleases so long as one does not offend the provisions of such law. I will not profess that I am qualified to question the wisdom of Parliament for enacting particular legislation. This, I think, is a matter for the elected representatives to decide whether Malaysia, with her multi-racial society, and in view of the composition of her people, there is a need for a legislation, in the interests of security, to adequately and effectively deal with those words which are expressive of a tendency not to promote peace but to excite ill will and hostility”.
Witnessing the tragic racial riots in May 1969, the judge opined that “there must be adequate provision to effectively extinguish a spark without waiting for it to enkindle a flame”.

There are many more cases on the broad categories of national security and economic development that the conservative judges were more inclined to take similar stand with the government in legitimizing legislations that promote “national interests”. This, however, does not mean that the judges were subservient to the government of the day. There were cases that the courts decided not in favour of the government. It is just that their conservative judicial attitude found resonance with the government’s justification in passing those legislations.

It was in this context of judicial conservatism that the radical view like BSD was vehemently opposed by the previous top judges.
In Loh Kooi Choon v Government of Malaysia, the then Federal Court Judge Raja Azlan Shah stated, and I quote:
“There have also been strong arguments in support of a doctrine of implied restrictions on the power of constitutional amendment. A short answer to the fallacy of this doctrine is that it concedes to the court a more potent power of constitutional amendment through judicial legislation than the organ formally and clearly chosen by the Constitution for the exercise of the amending power.”

Similarly, former Lord President, Tun Suffian also stood against the basic structure doctrine. In Mark Koding v Public Prosecutor [1982] 2 MLJ 120, he said, and I quote:
“As regards the argument that the amendments complained of affected the basic structure of the constitution and are therefore unconstitutional … we have no difficulty in holding that they do not; and it was therefore unnecessary for us to consider the question whether or not Parliament has power to so amend the Constitution as to alter its basic structure whatever that may be.”

However, beginning from the late 2000s, judges with the more progressive judicial attitude were elevated to the superior courts. In the spirit of judicial activism, these judges had no qualms about striking down legislations that they believe were inconsistent with fundamental liberties, which they define as part of the basic structure of the Federal Constitution.

Former Federal Court Judge, the late Tan Sri Gopal Sri Ram in Sivarasa Rasiah v Badan Peguam Malaysia [2010] 3 CLJ 507, referred to the Indian landmark case of Kesavananda Bharati, and said:
“Further, it is clear from the way in which the Federal Constitution is constructed there are certain features that constitute its basic fabric. Unless sanctioned by the Constitution itself, any statute (including one amending the Constitution) that offends the basic structure may be struck down as unconstitutional. Whether a particular feature is part of the basic structure must be worked out on a case-by-case basis. Suffice to say that the rights guaranteed by Part II which are enforceable in the courts form part of the basic structure of the Federal Constitution.”

This changing judicial attitude has opened a judicial space in Malaysia for BSD to take root and develop. My learned friends have alluded to the decisions of the court which signal the reception of BSD in this country which does not warrant my further explanation.

I just would like to stress one point here. I believe the judges were misled into believing that they are the sole protector of the original identity of the Constitution and its ‘grundnorm’ that represents the general will of the people. Is this the right approach? I must say that it is not. Judges are not elected by the people. They are appointed to their positions and are only bound to retire at the age of 66. Nobody can remove them, except by way of cumbersome tribunal, even if they interpret the constitution contrary to the so-called general will of the people. Should judges therefore confer upon themselves a very wide power to unilaterally decide the future direction of our constitution by adopting an alien doctrine of BSD? No, I don’t think so. Is that democratic? I don’t think so too. Instead, I have valid reasons to believe that if left unchecked, BSD will turn this country into the dictatorship of the minority, whoever they may be.

On this ground, I am inclined to say that the power to legislate and to decide the future direction of our constitution should remain in the hands of our legislators. If we are not happy with them, we can boot them out in the next election.


Islam
Now, let me turn to Islam. Is our constitution Islamic or secular?

There are competing views on this too. In the process of constitution-making, the position of Islam in the Federal Constitution was one of the most contentious issues that the framers of our constitution had to deal with. The Reid Commission, with exception of Justice Abdul Hamid of Pakistan, was not keen on making Islam as the religion of the federation. However, it was the political compromise reached by the Alliance leaders that Islam, the religion of the Malay majority, finally found its way into Article 3 of the Federal Constitution as the religion of the federation.

The Political Testament of the Alliance, which contains the Alliance’s proposal on the constitution, stated:
“The religion of Malaysia shall be Islam. The observance of this principle shall not impose any disability on non-Muslim nationals professing and practicing their own religions and shall not imply the State is not a secular State”.
It is interesting to note that although the Alliance leaders agreed that Islam being the religion of the federation does not negate the secularity of the Malaysian state, the word secular could not be found anywhere in the Federal Constitution. Unlike the Indian Constitution, its preamble clearly asserted that India is a secular nation.

Is Malaysia a secular state then? If it was the intention of the framers of our constitution to make Malaysia a secular state, that intention could have been explicitly stated in the constitution like the framers of the Indian constitution did.

Why didn’t they do so? My answer is they could not. Why?
Because there are features in the Federal Constitution that negate the contention that Malaysia is a secular state. Our Federal Constitution allows state funds to be used for Islamic purposes including Islamic education. The subject of Islamic education is taught in government schools by teachers whose salaries are paid by the government. Islamic bureaucracy both at the federal and state levels is part of the government administration. This university, International Islamic University Malaysia, which provides tertiary Islamic education, is fully funded by the government. As Islam is a state matter, the state legislatures have powers to enact Islamic laws on matters enumerated in the state list in the ninth schedule of the Federal Constitution.

All these could have not found their way into the constitution should Malaysia is intended to be a secular state. Neither the traits of French assertive secularism nor American passive secularism can be found in the Federal Constitution of Malaysia.

This leads us to the next question. Is Malaysia an Islamic state? The answer is not too. There are features in the Federal Constitution that negate the contention that Malaysia is an Islamic state. Our legal system is mainly based on the English common law system, which is secular. Our political system based on the principles and practices of the Westminster parliamentary democracy and constitutional monarchy, which is also secular.

So, is Malaysia secular or Islamic? The answer is Malaysia is neither secular nor Islamic. It has the traits of both making it a “hybrid regime”.

Is this normal? Well, none of the scholars of democracy defines Malaysia as a democratic country. At best, Malaysia is described as a hybrid regime which has the traits of both democracy and authoritarianism. No matter how strong the proponents of democracy would want to see Malaysia transits into a full-fledged democracy, the hybrid feature of Malaysia as a semi-democracy remains until today.

If Malaysia can function as a semi-democracy, why can’t it function as a semi-Islamic or semi-secular country?
Well, it is easier said than done. The co-existence of Islam and secularism in Malaysia is not a harmonious affair. There are competing forces in Malaysian politics and society that want to pull Malaysia in either direction.
In the 1970s through the 1980s, the Islamization race between UMNO and PAS created fear among the secularists that Malaysia would soon turn into a full-fledged Islamic state. They galvanized popular support against Islamization and kept its forces at bay.
Now, the Islamization race has lost its steam. The gradual political openness of the Malaysian political regime since the last two decades had emboldened the secular civil society groups to clamour for political and legal reform along the secular-liberal lines. This created fear among the Islamists that de-Islamization is underway, and Malaysia will soon turn into a full-fledged secular state.
The Islamist-Secularist contestations in the political and social realm spilled over into the legal sphere. Since the 2000s, the secular groups have initiated strategic litigations to challenge the constitutionality of Islamic laws in this country, which they believe are antithetical to their vision of a secular nation. They cited various reasons to strike down these laws including for being archaic, anachronistic and an infringement of basic human rights and fundamental liberties. They also accused the religious bureaucracy in Malaysia of perpetuating religious authoritarianism that ran counter to their imagination of a free, democratic, and secular Malaysia.
Their attempts were not successful in the past mainly due to the prevailing judicial conservatism of the Malaysian judiciary. However, with the advent of BSD and the prevailing judicial activism of the current top judges at the apex court, and the changing judicial attitude towards human rights and fundamental liberties, the secular forces achieve significant milestones in their struggle to transform Malaysia into a full-fledged secular state. These milestones have been clearly explained by our two learned friends here which does not warrant my further explanations.

Suffice to say that the decision of the Federal Court in Iki Putra’s case and the pending Nik Elin’s case will determine the future direction of our modern-day constitution. As it is now, it can be safely said that the balance is tilted toward secularism rather than Islamism.

Brothers and sisters, ladies and gentlemen,
The ‘neither Islamic nor secular’ nature of Malaysian state provides the fine balance needed to keep the destabilizing forces among the secularists and the Islamists at bay. Both will find something, if not everything, in the constitution that suits their interests. Of course, they will not get everything they want. Perhaps, that’s how life in a plural society meant to be.

As long as the state and its institutions maintain this fine balance by not allowing the Malaysian state to transform itself into a full-fledged secular or a full-fledged theocratic Islamic state, there will be order in society. Disruption to this fine balance will lead to chaos and disorder. Therefore, the role of the judges and the judiciary as a state institution is not to strongly subscribe to a particular ideology or doctrine and explicitly express its cardinal principles in their lengthy judgments. In a plural society like Malaysia, their paramount moral and legal duty is to maintain social and political order through their wise judgments. Justice can never be dispensed when there is no order.

On this note, I end my speech and will be delighted to take questions from the floor.

Wabillāhi al-taufiq wal hidāyah wassalamu’alaikum wa rahmatullāhi wa barakātuh.
Thank you.

 

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Lukman Sheriff​

January 12 at 6:38 AM ·

Berkenaan ucapan YAA Tun Maimun

Saya tidak setuju menuduh Tun Maimun tidak islam dan musuh Islam. Saya dimaklumkan beliau adalah “god fearing” dan tak betul kita menuduh beliau begitu rupa. Menuduh begini bahaya dan silap2 kita yang berdosa. Walaumacammana pun kita berbeza pandangan, kita tak perlu buat tuduhan personal begini.

Walaupunbegitu ini tidak bermakna kita tidak boleh kritik keputusan YAA Tun dan kritikan terhadap keputusan Tun tidak harus dilihat kritikan personal juga. Mengkritik keputusan atas alasan2 berasas adalah satu perkara yang valid, legitimate dan terutamanya lumrah bagi seorang pengamal undang2, akademik mahupun pelajar undang2. Maka jika kita mengkritik keputusan hakim misalnya sebagai tidak berpelembagaan, ini tidak bermakna hakim itu menentang perlembagaan. Samalah dengan mengkritik sesuatu keputusan sebagai melemahkan sistem shariah kita, ini tidak bermaksud hakim muslim itu bukan muslim. Semua perlu bezakan kritikan ke atas keputusan dan ke atas hakim. Perbezaan pandangan atas keputusan adalah sebahagian kebebasan bersuara tetapi kalau menuduh hakim secara peribadi tanpa bukti kukuh adalah tak betul dan boleh didakwa melakukan kesalahan.

Berkenaan ucapan YAA Tun Maimun, beliau bangkitkan dua perkara yang penting baginya. Satu konsep “basic structure” dan satu lagi keputusan2 kes bidangkuasa seperti ikiputra,nik elin dsbg. Kepada yang mengikuti tulisan saya, saya benar2 tidak setuju dan mengkritik kuat keputusan2 ini. Pada saya keputusan2 ini mengubah struktur perlembagaan kita dan akan membawa lebih kemudaratan bagi negara dari kemanfaatan.

Untuk tulisan kali ini saya ingin menumpu kepada konsep basic structure doctrine sahaja. Bagi yang tidak mengikuti isu ini, dalam konsep basic structure doctrine, hakim akan menetapkan apakah basic structure/ feature/ asas perlembagaan dan boleh membatalkan mana2 undang2 yang digubal oleh Parlimen yang melanggar basic structure perlembagaan kita.

Secara konsep nampak elok dan cantik. Jadi kenapa saya kritik dan membantahnya?

Sebelum itu, ramai perlu tahu, konsep ini adalah konsep baru yang diciduk dari India. Konsep ini telah ditolak bulat2 oleh ramai ketua2 hakim terulung sebelum ini seperti Tun Suffian, Raja Azlan Shah, Tun Hamid dsbg. Jadi ini adalah perkembangan baru undang2 baru beberapa tahun.

Kenapa konsep ini bermasalah. Secara amnya:
1. Perlembagaan kita tidak nyatakan apakah basic structure/asas perlembagaan. Maka apakah asas perlembagaan terbuka kepada pelbagai interpretasi dan boleh membawa kepada ketidakserasian nilai budaya masyarakat. Misalnya pada setengah kelumpuk masyarakat, islam dan hak istemewa melayu dan bumiputra adalah asas perlembagaan. Tetapi bagi setengah masyarakat kita, sekularisma dan kebebasan asasi seperti kesamarataan adalah asas perlembagaan. Sebab itu kita banyak pertembungan di dalam masyarakat dan percakaran ini dibawa kepada kes2 di mahkamah.

Selama ini pertikaian ini ditentukan melalui apa yang dinyatakan di dalam perlembagaan. Dan jika rakyat tak puas hati dengan keputusan itu, parlimen boleh gubal undang2 membetulkannya. Tetapi dengan basic structure doctrine, hakim yang akan menentukan apakah asas perlembagaan dan parlimen tidak boleh buat apa2 undang2 yang melanggar asas perlembagaan yang ditentukan hakim. Implikasinya sangat besar.

Misalnya apabila mahkamah sivil mencampuri bidangkuasa shariah, parlimen pada 1988 telah pinda perlembagaan di mana mahkamah sivil tidak boleh mencampuri bidangkuasa shariah. Pada 1988, konsep basic structure ini ditolak mahkamah.

Mengikut basic structure doctrine, independence of judiciary yakni kebebasan kehakiman sivil adalah asas perlembagaan. Pindaan 98 ini belum dicabar lagi atas alasan basic structure doctrine. Kalaulah hakim berpandangan pada masa hadapan bahawa pindaan perlembagaan 1988 itu bertentangan dengan independence/kebebasan mahkamah sivil, pindaan itu akan terbatal. Tak kiralah samada 100% rakyat termasuk raja2 mahu pindaan itu, ini masih terbatal. Tiada lagi ruang untuk Parlimen perbetulkan keadaan di mana Mahkamah sivil campurtangan mahkamah shariah.

Ini yang saya tidak setuju sangat. Hakim menggubal undang2 baru dan kemudiannya menidakkan rakyat dan parlimen untuk membetulkannya jika rakyat tidak setuju.

2. Separation of powers entails pembahagian kuasa antara badan2 kehakiman, parlimen dan eksekutif. Parlimen buat undang2 dan kehakiman menafsirkannya. Apabila undang2 atau peruntukan tidak wujud, adalah tanggungjawab parlimen untuk menggubal undang2 dan bukan hakim. Tugas hakim adalah untuk menafsir dan bukan buat undang2. Basic structure doctrine ini adalah undang2 baru dan ketua2 hakim yang lepas menolak ini kerana ini adalah bidangkuasa parlimen.

3. Konsep basic structure ini diciduk dari India. Sejak basic structure ini diperkenalkan di India, banyak pertembungan dengan kehakiman berlaku. Terumbang ambing undang2 (legal upheavals) di India. Akhirnya baru2 ini Mahkamah Agung India kembali menolak basic structure doctrine ini. Sila rujuk tulisan Sahabat guam saya Yusfarizal di https://www.facebook.com/share/p/1DdqwLXd5h/?mibextid=WC7FNe. Kalau India sudah mula menolak basic structure, apahal kita mahu memperkenalkannya.

4. Saya boleh terima penggunaan konsep basic structure secara am dengan syarat asas perlembagaan dinyatakan sendiri oleh parlimen. Bukannya hakim yang tentukan sepenuhnya. Perlembagaan kita adalah satu kompromi sosial yang mencerminkan nilai budaya kita. Parlimen adalah badan yang sesuai yang dapat membawa kehendak rakyat. With due respect, akibat etika kehakiman, hakim2 tidak boleh bergaul dengan rakyat seperti kita dan dengan itu disconnected dengan kehendak( demand) masyarakat. Walaupun ramai mungkin tidak suka politician, inilah struktur dalam demokrasi yang membawa suara rakyat. Kita boleh buang mereka di pilihanraya kalau mereka bertindak melawan kepentingan kita. Jadi apabila parlimen tentukan dan gubal apakah asas perlembagaan, ini adalah undang2 yang valid yang diterima rakyat.

Wallahualam bissawab