This article discusses the Malaysian Federal Court's decision in Maria Chin Abdullah v DG of Immigration in January 2021. It critiques the majority judgment of Rahman Sebli FCJ, and discusses the fate of the basic structure doctrine at Malaysian law post-Maria Chin.
The article also considers the underlying disagreement between the majority and dissenting judges in Maria Chin, namely the constitutionality of the 1988 amendment to art. 121 of the Federal Constitution. Whilst disagreeing with the 'reading down' argument made by Tengku Maimun CJ, it suggests an alternative route where the basic structure doctrine is read into art. 121, thus answering at least part of the formalist challenge to the basic structure doctrine's existence. Ultimately, however, it argues that striking down the 1988 amendment is the best way to lay this issue to rest.
Scholars and analysts have pointed out the rise of populism and identity politics as the primary cause of the democratic regression in Indonesia. But the democratic regression in Indonesia cannot be explained by a single issue. With Tocqueville as a guide, this paper analyzes the issue of the democratic soul and the Indonesian situation. Tocqueville's analysis of the democratic soul and the American situation suggests that the former, like democracy itself, is fundamentally unstable. The instability will eventually lead the democratic soul to throw itself in serving a powerful tyrant.
Using Tocqueville's analysis, this paper argues that democratic restlessness in Indonesia is caused by the instability of three institutional mechanisms: family, economy, and religion. Specifically, democratic regression in Indonesia is caused by the failure of these institutional mechanisms to control the negative impulse of the democratic soul, which thus allows a tyrannical soul to dominate.
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.