The Basic Structure Doctrine Debate: A Legal-Theoretic Understanding of The Great Divide

This paper argues that the conflicting dispositions of proponents and opponents in the basic structure doctrine debate are rooted in deeper convictions about the legal-theoretic foundations of the Malaysian legal system. While the debate is often framed in the terms of a jurisdictional conflict between the legislative and judicial branches of government or constitutional interpretative differences, this paper argues that the divergence can instead be characterised as a function of contrasting views on what makes a norm legally valid, viz. whether ‘what law is’ is determined by reference to social facts or moral considerations. These jurisprudential assumptions are implicit within the judicial interpretative arguments in the Malaysian basic structure doctrine case law, and are connected with judicial attitudes towards the basic structure doctrine.

Building on the above, this paper assesses which position on the debate better coheres with the Malaysian constitutional makeup, and briefly canvasses the insights from legal theory which can help determine the future of the basic structure doctrine in Malaysia.