Hudud and the basic-structure doctrine


Art Harun

NOT many people know about this piece of history of our country. Allow me to recount this so that this passage of our history would not just fade away from the recesses of our memory.

The Malaysia Agreement was signed on July 9, 1963 between the Federation of Malaya, the United Kingdom, Sarawak, North Borneo and Singapore. Under this agreement, Singapore, Sabah and Sarawak would federate with the existing 11 states of the Federation of Malaya to form Malaysia with effect from Sept 16, 1963. That is common knowledge.

What is, however, largely unknown is this. On Sept 10, 1963, six days before the formation of Malaysia, Kelantan sued the Federal Government of Malaya and Tunku Abdul Rahman for, among others, a declaration that the Malaysia Agreement and the Malaysia Act were null and void and not binding on the state.

Kelantan argued that the Malaysia Agreement was invalid because:

i) it violated the 1957 Federation of Malaya Agreement when Malaya was formed and the state agreed to be part of Malaya;

ii) its consent (and that of other states) was never given for the Malaysia Agreement;

iii) the Sultan of Kelantan should be a party to the Agreement;

iv) the Rulers were never consulted;

v) Parliament had no power to legislate over the matter.

To cut a long story short, Chief Justice Thompson, who heard the matter, held that the Malaysia Agreement and Malaysia Act did not in any way contravene the Federal Constitution and therefore they were valid and enforceable.

What is more important about this case is what CJ Thompson said in his judgment:

“In doing these things I cannot see that Parliament went in any way beyond its powers or that it did anything so fundamentally revolutionary as to require fulfilment of a condition which the Constitution itself does not prescribe, that is to say, a condition to the effect that the state of Kelantan or any other state should be consulted” (emphasis mine).

That statement by CJ Thompson lays the basic-structure doctrine in constitutionalism.

Basically, what it means is that notwithstanding the powers of Parliament to amend the Constitution, it can never amend the Constitution in such manner which is sofundamentally revolutionary as to change the basic structure of the Constitution without inviting the fulfilment of “a condition which the constitution itself does not prescribe”.