He commanded the creation of Pandora, a woman radiant with beauty, intellect, and irresistible curiosity. Into her hands, Zeus placed a mysterious sealed jar, warning her, “never open it”.

But curiosity tugged at Pandora’s heart.  One fateful day, she lifted the lid, unleashing sorrow, sickness, and all the world’s woes. In despair, she closed it swiftly – yet inside, only Hope (Elpis) quietly remained: a final gift to humanity.

The Constitutional Pandora’s Box: an Introduction

Our Constitution is akin to Pandora’s box ‘in reverse’—not a vessel of evils, but a treasury of precious guarantees: fundamental liberties, democracy, the rule of law, and racial and religious harmony.

What catastrophe might befall us if a transient parliamentary majority could unlock this box, releasing these treasures into oblivion?

The Basic Structure Doctrine stands as that final lock—the ultimate safeguard keeping our constitutional Pandora’s Box securely fastened.

This doctrine articulates a simple, yet profound, principle. Certain constitutional elements are so fundamental to human life and liberties that Parliament cannot touch those rights. They remain beyond the reach of Parliament’s power to amend the Constitution; even when such amendments comply with procedural rules.

Without this doctrine, any two-thirds majority in Parliament could fundamentally alter a nation’s constitutional identity. That is not democracy. That is the tyranny of numbers.

Three critics have mounted a vociferous challenge to this doctrine: Tun Hamid Mohamad (former Chief Justice), Tan Sri Apandi Ali (former Attorney General), and an anonymous writer.

This article demonstrates why their criticisms crumble when subjected to proper constitutional scrutiny, comparative jurisprudence, and reasoned analysis.

The Three-Legged Stool: A Clarifying Analogy

Picture our constitutional system as a three-legged stool: the first leg represents democracy and elections. The second embodies fundamental rights and liberties. And the third constitutes Separation of Powers and Judicial Independence. The Seat is the Rule of Law. To explain: ‘The Rule of Law’ means everyone, including the government, is equally subject to the law. ‘Separation of powers’ divides government into three independent organs: Parliament (legislative), the ruling government (executive), and the Courts (judiciary). The separation of powers into three institutions prevents abuse. It ensures checks and balances between these three organs.

Remove any single leg, and the entire structure collapses. The Basic Structure Doctrine merely acknowledges this self-evident reality. Parliament may certainly reshape or re-colour the stool through amendments. It cannot, however, saw off any leg without destroying the stool itself.

The critics contend Parliament wields unlimited power with a two-thirds majority. By this logic, Parliament could vote to eliminate judicial review, abolish elections entirely, or eradicate fundamental rights. Such action would not merely modify our constitutional democracy—it would transform it into something entirely unrecognisable, much as converting a stool into firewood. That destroys its essential character and purpose.

Kesavananda Bharati: The Landmark Case that Preserved Indian Democracy

To comprehend the BSD properly, we must journey to India in the early 1970s and consider the story of an unassuming Keralite monk named Kesavananda Bharati.¹ Kesavanda Bharati v State of Kerala (1973) 4 SCC 225

In 1951, the Nehru administration proposed widespread land reform. Yet Indian courts steadfastly opposed any law that violated any citizen’s fundamental rights. To circumvent this judicial resistance, Parliament amended the Constitution to immunise certain laws from judicial scrutiny.²They had enacted Ninth Schedule with the original aim of preventing the courts from stopping the Nehru government’s land reform policy.

In 1963, the State of Kerala passed certain laws. This allowed it to acquire lands belonging to Kesavananda’s monastery.³ Kerala Land Reforms Act of 1963 (as amended in 1969). He challenged this state action. His advocate, the legendary Nani Palkhivala, presented a revolutionary argument: Parliament’s power to amend the Constitution, whilst broad, could not “tear at the very fabric of the Constitution’s fundamental structure”, thus destroying it.⁴ Kesavananda complained that his fundamental rights as to religion (Article 25), freedom of religious denomination (Article 26), and the right to property (Article 31) had been breached.

By a landmark judgment (Kesavananda Bharati v. State of Kerala, 1973), the Indian Supreme Court agreed by the narrowest of margins. It established that whilst Parliament could amend any particular constitutional provision, it could not alter the Constitution’s “basic structure.” Hence ‘Basic Structure Doctrine’.

Democracy, federalism, judicial review-these core elements stood beyond amendment.⁵ In the Indian Constitution, the machinery is provided in Article 368

This ruling faced an immediate test. Shortly thereafter, Prime Minister Indira Gandhi had been convicted of election fraud. She commanded a two-thirds majority; enough to amend the Constitution. And so Indira Gandhi attempted to amend the Constitution to shield herself from the legal consequences of corruption. The Supreme Court struck down her constitutional amendment. It preserved India’s democracy from descending into a personalised dictatorship.⁶ Indira Nehru Gandhi vs. Raj Narain 1975 (Supp.) SCC 1)

Justice H.R. Khanna’s words resonate with timeless wisdom: “The Constitution is not a plaything of a majority; it is the nation’s guiding light.”⁷ AIR 1973 SC 1461, [678]—See https://etchingthepath.com/author/lawcutor/

 A Global Constitutional Safeguard: Not Merely an Indian Innovation

The Basic Structure Doctrine is not uniquely Indian. It had existed long before Kesavananda Bharati, and continues to thrive and manifest itself throughout the world in various forms:

The Basic Structure Doctrine is not merely an “Indian invention” but has philosophical roots in Aristotle’s constitutional theory.⁸ Aristotle, Politics, III.6 His concepts of constitutional supremacy,⁹ Aristotle, Politics, IV.1 a just or unjust constitutions,¹⁰ Aristotle, Politics, III.7 the common good,¹¹Nicomachean Ethics, V.1 a mixed constitution,¹² Aristotle, Politics, IV.9 and constitutional preservation,¹³ Aristotle, Politics, V.1-12 anticipate modern BSD principles, demonstrating constitutional limits have deep historical foundations.¹⁴ Conrad, 1965   BSD distinguishes constituent power (people’s sovereignty) from constituted power (institutional limits), shaped by Kelsen’s democratic positivism versus Schmitt’s authoritarianism.¹⁵ Schmitt, 1922; Kelsen, 1945

Germany’s Basic Law (1949) includes an “eternity clause” that places human dignity and democratic governance beyond amendment. This safeguard emerged directly from the traumatic experience of how Hitler legally exploited the Weimar Constitution’s amendment provisions to establish dictatorship.¹⁶ Article 79(3) of Germany’s Basic Law 1949

The Kenyan High Court held that the people’s constituent power to “create a new constitution” is distinct from Parliament’s ‘limited power to amend it’: (Timothy M Njoya & 6 others v Attorney General & 3 others [2004]).  The Court ruled Parliament cannot change, replace, or abrogate the Constitution without a process grounded in the ‘people’s sovereign will’: e.g., a constituent assembly and a mandatory referendum.

Drawing on Kesavananda Bharati, the Court affirmed that ‘implied limits’ exist in amendment powers. This established the basic structure doctrine as part of Kenyan constitutional law. It also curbed ‘parliamentary overreach’.¹⁷ Timothy M. Njoya & 6 others v Attorney General & 3 others [2004] KEHC 2645 (KLR), High Court at Nairobi, Miscellaneous Civil Application No. 82 of 2004 (OS), judgment delivered 25 March 2004. The court held: “… [The] power to amend the Constitution did not include the power to alter the basic structure or framework of the Constitution… [Although the power of amendment is wide, it is not wide enough to include the power of totally abrogating or emasculating or damaging any of the fundamental rights or the essential elements in the basic structure of the Constitution or of destroying the identity of the Constitution.”

Canada’s Supreme Court recognised unwritten constitutional principles limiting amendment powers in the Quebec Secession Reference (1998).¹⁸ Reference re Secession of Quebec (1998 2 SCR 217)

Islamic Nations and BSD: A Harmonious Coexistence

Even Islamic nations—Pakistan and Bangladesh among them—have embraced the BSD. Pakistan’s Supreme Court acknowledged “implied substantive limits” on Parliament’s power to amend the constitution. Bangladesh’s Court firmly ruled that Parliament cannot alter “unchangeable basic structures” of the Constitution.¹⁹ Bangladesh Italian Marble Works Ltd v. Bangladesh (2006) BLT (Special) (HCD) 1

Pakistan’s Constitution (1973) declares Islam as the state religion.²⁰ Article 2 It incorporates the “Objectives Resolution,”²¹ Article 2A which recognises sovereignty as belonging to Allah.²² The Constitution of the Islamic Republic of Pakistan was passed on 10th April 1973. Article 2: Islam to be State Religion & Article 2A: The Objective Resolution to form part of substantive provisions. Nevertheless, the Constitution itself remains the supreme legal text.

In Constitutional Petition No. 12 of 2010, eight judges held that there exist “implied substantive limits” on Parliament’s amendment powers. The Court declared: “This Court is vested with jurisdiction to interpret the Constitution to identify its Salient Features and examine whether amendments have repealed, abrogated or altered these features.”²³ District Bar Association, Rawalpindi v Federation of Pakistan PLD 2015 SC 401. What are ‘salient features’, but ‘basic structures’?

Bangladesh maintains constitutional supremacy whilst accommodating religious sensibilities. Its original 1972 Constitution emphasised secularism, yet the 8th Amendment (1988) declared Islam the state religion.²⁴(Article 2A) Secular laws derived from British India continue to predominate in most domains.²⁵ See https://www.thedailystar.net/supplements/news/secularism-bangladesh-the-troubled-biography-constitutional-pillar-2011933

In Bangladesh Italian Marble Works Ltd v. Bangladesh (2006), the Supreme Court invalidated the 5th Amendment. It confirmed that parliament lacks authority to amend the “unchangeable basic structures of the Constitution.”²⁶ Bangladesh Italian Marble Works Ltd v. Bangladesh (2006) BLT (Special) (HCD) 1

These examples illustrate how constitutional primacy and Islamic principles coexist compatibly. The Basic Structure Doctrine has proven entirely harmonious with Muslim-majority states.

Malaysia’s BSD Journey: From Rejection to Enlightened Adoption

Malaysia initially rejected the BSD in Loh Kooi Choon v. Government of Malaysia (1977).²⁷ [1977] 2 MLJ 187 However, following the 1988 judicial crisis—when Parliament (in my opinion, ineffectively) amended Article 121(1) to strip courts of their inherent judicial power—the judiciary reconsidered its position.

In Semenyih Jaya (2017), the Federal Court recognised judicial independence as an integral part of the Constitution’s basic structure.²⁸ [2017] 3 MLJ 561 In Indira Gandhi (2018), the Court extended BSD principles to protect parental rights and religious freedoms.²⁹ [2018] 1 MLJ 545

These landmark decisions restored the judiciary’s essential role as the ultimate guardian of constitutional integrity.

Crucially, this aligned Malaysia with global democratic jurisprudence.

Dismantling the Critics’ Flawed Arguments

Did India ‘abandon BSD’ in the case of Anjum Kadari?

Tun Hamid erroneously claims the Indian Supreme Court ‘retreated from BSD in Anjum Kadari v. Union of India (2024)’.³⁰ Anjum Kadari v. Union of India’ (2024) INSC 831. See https://www.tunabdulhamid.my/index.php/speech-papers-lectures/item/1153-basic This represents a fundamental misreading of the judgment. The Court merely clarified that BSD applies to constitutional amendments, not ordinary statutes.

Chief Justice Chandrachud explicitly confirmed that BSD remains “a protective mechanism specifically for constitutional amendments.”³¹ Anjum Kadari v. Union of India (2024) INSC 831

The doctrine continues to restrict Parliament’s amendment power precisely as before.

Does ‘BSD undermine Parliamentary Sovereignty’?

Tun Hamid asserts Parliament possesses ‘absolute amendment power’ under Article 159.³² See https://www.tunabdulhamid.my/index.php/speech-papers-lectures/item/1153-basic Suppose that is correct. Could we take this argument to its logical conclusion? Could Parliament make a law amending the constitution to the effect that, “Blue-eyed babies are to be forcibly separated from their biological parents”? This argument overlooks Article 4(1), which states, “This Constitution is the supreme law of the Federation.”

Unlike Britain, Malaysia has no doctrine of ‘parliamentary supremacy’. The Constitution reigns supreme. In 1976, Chief Justice Tun Suffian put the concept of ‘Parliamentary Supremacy’ beyond reach. He ruled in Ah Thian v. Government of Malaysia (1976): “Our Constitution is the supreme law; Parliament’s powers are subordinate to it.”³³ [1976] 2 MLJ 112

Does BSD impose ‘Foreign Secularism’?

Tun Hamid erroneously links the Basic Structure Doctrine with ‘secularism.’ He suggests that the BSD ‘imports’ undefined foreign concepts.³⁴ See https://www.tunabdulhamid.my/index.php/speech-papers-lectures/item/1153-basic

This mischaracterisation is refuted by the Federal Court in Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55, which established that while Islam is the religion of the Federation, Malaysia operates under “secular law, having its sources in the common law.” The judgment confirms that BSD does not impose secularism. It in fact preserves the constitutional balance between civil and Islamic jurisdictions established at Merdeka (independence).³⁵ [1988] 2 MLJ 55

BSD protects all constitutional features, even including Islam’s status under Article 3 and some ‘special position of the Malays’ under Article 153.

It functions as a shield for every constitutional provision, not as a sword against any particular one.

Does BSD represent ‘a Judicial Overreach’?

Tan Sri Apandi characterises ‘BSD enforcement’ as ‘judicial activism’ (that means judges should not make law). This argument completely ignores the courts’ constitutional mandate. From the Yang di-Pertuan Agong to judges to MPs—every public officer swears to uphold the Constitution.³⁶ This point differs vastly from the Hamid Sultan ‘Oath of Office’ argument. For my point, see Articles 43(6); 43B(4), 57(1A)(a), 59(1), 124 and Art 142(6), read with the Sixth Schedule to the Constitution, entitled ‘Forms of Oaths and Affirmations’. One cannot genuinely uphold the Constitution whilst simultaneously claiming the power to destroy its fundamental character.

Is BSD ‘Anti-Malay’ or ‘Anti-Islamic’?

This allegation by an anonymous writer is demonstrably false.³⁷ See https://themalaysiapress.com/sacred-doctrine-selective-silence-how-pro-bsd-judges-undermine-islam-and-article-153/, where an unknown writer states: “Yet, its champions have shown a glaring and troubling pattern: they never invoke the BSD to defend Article 3 (Islam as the religion of the Federation) or Article 153 (the special position of the Malays and natives of Sabah and Sarawak). … This is not an oversight – it is a revealing silence that exposes a deeper ideological bias”.

In PP v. Khong Teng Khen (1976), the court recognised that the constitutional ‘guarantee of equality’ in Article 8 operates ‘subject to’ Article 153’s ‘special position of the Malays’.³⁸ [1976] 2 MLJ 166

BSD protects these provisions from arbitrary removal

BSD safeguards Malaysia’s pluralistic social compact rather than undermining it.³⁹ In PP v. Khong Teng Khen the Federal Court ruled: “Article 8(1) of the Constitution provides that all persons are equal before the law and entitled to the equal protection of the law. But this is subject to the provisions of Article 153 which confers a special position on Malays and natives of any of the States of Sabah and Sarawak.”  Further, the Federal Court said: “The law must operate alike on all persons under like circumstances, but Article 8 does not prevent Parliament from passing laws to protect the special position of Malays and natives of Sabah and Sarawak as provided by Article 153”. See also PP v Su Liang Yu [1976] 2 MLJ 128

Historical Warnings: What Occurs Without BSD?

History provides sobering lessons about parliament’s unchecked power to amend the Constitution:

In Germany, the Weimar Constitution’s unlimited amendment provisions allowed Hitler to legally dismantle democracy.⁴⁰ See https://www.britannica.com/topic/Enabling-Act

In Uganda, the Supreme Court sidestepped BSD principles, permitting the president to remove age limits. The president changed the constitution to allow it. This allowed one man to rule for life.⁴¹Male Mabirizi Kiwanuka & Others v Attorney General, Consolidated Applications No. 4 & 6 of 2019 (Arising From Reference No. 6 of 2019) As one commentator noted with bleak accuracy: “African dictatorships never lose elections.”⁴²Mutunga, Willy, “Constitutions, Law and Civil Society: Discourses on the Legitimacy of Peoples’ Power,” in Oloka-Onyango, Joe (ed.) Constitutionalism in Africa: Creating Opportunities, Facing Challenges, Kampala: Fountain Publishers, 2001, p. 140

BSD functions as the firewall against such democratic deterioration—it is the final defence against constitutional collapse.

The timing of these criticisms warrants scrutiny

This timing cannot be dismissed as coincidental. For years, the judiciary has faced relentless attacks, and for what? For merely upholding the Rule of Law against powerful political figures.

These criticisms emerge precisely when the Malaysia’s Judiciary’s ‘Old Guard’ prepares for retirement. These are a core group of senior judges who have so far unwaveringly refused to allow powerful politicians from escaping, through a side door, multiple corruption charges.

Yet, tellingly, when judges refused to yield to political pressure exerted publicly, the government resorted to a legal device which only the government, not the courts, can implement: “discharges not amounting to acquittals”. Then, astonishingly, the government seemed to imply that the judges were to be blamed for these outcomes.

The fear is, political influence might be brought to bear to influence future judicial officers, and thereby weaken constitutional safeguards.

Conclusion: Keeping Pandora’s Box Securely Locked

In Greek mythology, Pandora’s curiosity unleashed countless evils. In constitutional terms, abandoning BSD would similarly unleash the evils of authoritarianism upon our democracy.

The Basic Structure Doctrine represents the final lock on our constitutional Pandora’s Box.

It ensures that temporary majorities, no matter how substantial, cannot destroy the very system from which they derive legitimacy. It is not a foreign imposition. It is not judicial overreach. It is not anti-Malay or anti-Islamic.

Rather, it stands as the guardian of Malaysia’s Constitution, protecting it against those who would undermine it from within.

In my respectful opinion, the critics are attempting to pick this lock. They must not succeed. The Constitution is not a political instrument, but a covenant between generations.

BSD is the principle that declares: “This far, and no further.”

That is why BSD must remain.

That is why it constitutes the last lock on Pandora’s Box.

And that is why we must defend it with unwavering resolve.

∞§∞

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Gratitude:

The author thanks UK Menon, G Naidu, KN Geetha, TP Vaani, JN Lheela and Lydia Jaynthi.

Acknowledgements: the image is from Fahrul Azmi, Unsplash