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The Federal Constitution of Malaysia: A Kelsenian Perspective
Published online by Cambridge University Press: 03 October 2022
Abstract
This article examines the Federal Constitution of Malaysia through the lens of Hans Kelsen's Pure Theory of Law. It first demonstrates the utility of the Grundnorm in explaining the supremacy of the Federal Constitution within the Malaysian legal system. In particular, this article establishes that despite Malaysia's colonial past, the Federal Constitution is the Kelsenian ‘historically first constitution’ of the present Malaysian legal system because of the Kelsenian ‘revolution’ that had occurred when the Federation of Malaya attained independence from the British in 1957, as well as the absence of a Kelsenian ‘revolution’ during the formation of Malaysia in 1963. The Grundnorm of the Malaysian legal system can thus be expressed as ‘one ought to obey the prescriptions of the Federal Constitution’. However, this article also argues, using the example of the basic structure doctrine controversy in Malaysia, that while the Pure Theory succeeds in elucidating a measure of legal validity for legal norms, it fails to provide any helpful insight when a constitutional dispute relates to the content of a norm rather than the interaction between hierarchically distinct norms.
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- Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of the National University of Singapore
Footnotes
1
BA(Hons), University of Cambridge. Associate Legal Counsel, Central Bank of Malaysia. This article reflects my own views and not those of the Central Bank of Malaysia. I wish to thank Jefferi Hamzah Sendut, Tan Kian Leong, Shukri Shahizam and two anonymous reviewers for their comments on an earlier draft. All errors are my own.
References
2 Federal Constitution, art 4(1): ‘This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void’.
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6 For ease of reference, the term ‘Federal Constitution’ will be used to denote the Federal Constitution of Malaysia which is currently in force.
7 See Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan [2021] 3 MLJ 759 para 72; Hassan bin Abdul Karim v Perdana Menteri, Tan Sri Dato’ Hj Mahiaddin bin Md Yasin & Anor [2021] MLJU 815 para 32; Thamilharasan a/l Narasimulu v Timbalan Menteri Dalam Negeri [2021] MLJU 925 para 19. See also Lim Heng Seng, ‘Malaysia: The Federal Constitution, Islamisation And The Malaysian Legal Order’ (Mondaq, 16 Jun 2016) <https://www.mondaq.com/constitutional-administrative-law/500882/the-federal-constitution-islamisation-and-the-malaysian-legal-order#:~:text=The%20Federal%20Constitution%20of%20Malaya,supreme%20law%20of%20the%20nation.&text=The%20basic%20pillars%20which%20undergirded,for%20the%20enlarged%20Malaysian%20nation> accessed 2 Feb 2021; Dato’ Dr Cyrus V Das, ‘‘Life’ Under Article 5: What Should It Be?’ (2002) XXXI(4) The Journal of the Malaysian Bar, 68 <https://www.malaysianbar.org.my/cms/upload_files/document/INSAF%202002%20Vol.%204.pdf> accessed 12 Jul 2022; Roger Tan, ‘No room for hudud law’ (The Star, 5 Jun 2016); HRH Sultan Azlan Shah, ‘Evolving a Malaysian Nation’, in Visu Sinnadurai (ed), Constitutional Monarchy, Rule of Law and Good Governance: Selected Essays and Speeches (Professional Law Books and Sweet & Maxwell Asia 2004) 331; Shad Saleem Faruqi, The Bedrock of Our Nation: Our Constitution (Zubedy Ideahouse Sdn Bhd 2012) 6.
8 Hans Kelsen, Pure Theory of Law (Max Knight tr, University of California Press 1967) 1. However, as will be seen in the subsequent discussion on the normativity of the Pure Theory, this does not mean that the Pure Theory is a purely descriptive theory with no normative leanings.
9 ibid 221.
10 ibid 194.
11 ibid 194–195.
12 See HLA Hart's social fact thesis in Scott J Shapiro, ‘What is the Rule of Recognition (And Does It Exist)?’, in Matthew Adler & Kenneth Einar Himma (eds), The Rule of Recognition and the U.S. Constitution (Oxford University Press 2009) 239.
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16 Lim (n 7).
17 HRH Sultan Azlan Shah (n 7). For further examples of how the Federal Constitution and the Grundnorm have been used interchangeably, see the cases and sources cited in (n 7).
18 Gu Yu, Hong Kong's Legislature under China's Sovereignty: 1998–2013 (Brill Nijhoff 2015) 1. The current de facto constitution of Hong Kong, the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (hereinafter ‘The Basic Law of Hong Kong’), was enacted by the national legislature of the PRC pursuant to the Constitution of the PRC (see The Basic Law of Hong Kong, Preamble).
19 The use of a small letter ‘constitution’ in this article refers generally to the highest positive legal norm of any legal system.
20 HLA Hart, The Concept of Law (Penelope A Bullock & Joseph Raz eds, 2nd edn, Oxford University Press 1994) 293.
21 Kelsen, Pure Theory of Law (n 8) 203.
22 See Conklin, William, ‘Hans Kelsen on Norm and Language’ (2006) 19 Ratio Juris 101, 106CrossRefGoogle Scholar.
23 ibid 102.
24 Hans Kelsen, Introduction to the Problems of Legal Theory: A Translation of the First Edition of the Reine Rechtslehre or Pure Theory of Law (Bonnie Litschewski Paulson & Stanley L Paulson tr, Oxford University Press 1997) 58.
25 Hans Kelsen, ‘The Function of a Constitution’, in Richard Tur & William L Twining (eds), Essays on Kelsen (Iain Stewart tr, Oxford University Press 1986) 117.
26 For Vaihinger, ‘“pretending” that certain things are true … can greatly aid our aim of prediction’, even when the fiction is ‘radically false’, and this is particularly true where the objects which are deliberately overlooked or where the assumptions which are falsely made only have a ‘negligible influence’ on the object of study: Timothy Stoll, ‘Hans Vaihinger’, in Edward N Zalta (ed), The Stanford Encyclopaedia of Philosophy (Metaphysics Research Lab, Stanford University 2020) <https://plato.stanford.edu/entries/vaihinger/> accessed 9 Jun 2021. This would be analogous to how the assumption of ceteris paribus in economics allows for the simplification of the study of economic phenomena.
27 Neil Duxbury, ‘The Basic Norm: An Unsolved Murder Mystery’ (LSE Law, Society and Economy Working Papers 17/2007) 6 <https://www.lse.ac.uk/law/working-paper-series/2007-08/WPS17-2007Duxbury.pdf> accessed 12 Jul 2022. This genuinely fictional norm contradicts reality because the Grundnorm does not exist as a material object. On the other hand, it contradicts itself because the notion that the Grundnorm is a fictional ‘norm’ dabbles in the logical contradiction that this fictional norm does not require higher validation even though, by Kelsenian rules, norms are valid only if they have been authorised by a higher norm. See ibid; Kelsen, Introduction to the Problems of Legal Theory (n 24). In short, it is a norm only in name but not in essence.
28 See Duxbury (n 27) 4.
29 Stewart, Iain, ‘The Critical Legal Science of Hans Kelsen’ (1990) 17 Journal of Law and Society 273CrossRefGoogle Scholar.
30 Duxbury (n 27) 7.
31 Jill Vance Buroker, Space and Incongruence: The Origin of Kant's Idealism (Springer 1981) 1.
32 Reut Yael Paz, A Gateway Between a Distant God and a Cruel World: The Contribution of Jewish German-Speaking Scholars to International Law (Martinus Nijhoff 2012) 225.
33 Gustafsson, Håkan, ‘Fiction of Law’ (2010) 41 Rechtstheorie 319, 323CrossRefGoogle Scholar.
34 ibid 322. Although these elucidations were provided by Kelsen in the context of the Grundnorm as a presupposition, they are similarly applicable vis-à-vis the Grundnorm as a fiction. Note that most commentators also vary between referring to the Grundnorm as a presupposition or as a ‘thought norm’. See Gustafsson (n 33) 323, 336–337.
35 The distinction between a positive norm and ‘formal norm’ ie, a norm which does not affect the content of the norm being authorised, is also made by Hopton: Hopton, TC, ‘Grundnorm and Constitution: The Legitimacy of Politics’ (1978) 24 McGill Law Journal 72, 84Google Scholar.
36 Kelsen, Pure Theory of Law (n 8) 200.
37 Kelsen, Hans, ‘On the Theory of Interpretation’ (1990) 10 Legal Studies 127CrossRefGoogle Scholar.
38 Torben Spaak, ‘Kelsen and Hart on the Normativity of Law’, in Peter Wahlgren (ed), Perspectives on Jurisprudence: Essays in Honor of Jes Bjarup (Stockholm Institute for Scandinavian Law 2005) 405.
39 For example, by establishing state organs, providing for the form and manner of law creation and regulating the distribution of powers between state organs: Faruqi (n 7) 1–5.
40 As Bindreiter explains, the Grundnorm merely indicates the ‘highest norm-creating authority’ without indicating ‘the content of the issued norms’: Uta Bindreiter, Why Grundnorm?: A Treatise on the Implications of Kelsen's Doctrine (Kluwer Law International 2002) 35.
41 Kelsen, Pure Theory of Law (n 8) 50. While Kelsen conceived of the law as a coercive order which forcibly deprives one of fundamental values of life and freedom in the face of disobedience, he did not see coercion as the only motivator for compliance with legal directives: see Kelsen, Pure Theory of Law (n 8) 35. See cf John Austin, Lectures on Jurisprudence: Or, The Philosophy of Positive Law, Volume 1 (Robert Campbell ed, 4th edn, London 1873) 89: ‘A command is distinguished from other significations of desire … the power and the purpose of the party commanding to inflict an evil or pain in case the desire be disregarded’.
42 Stewart (n 29) 296.
43 Dato’ Seri Anwar bin Ibrahim v Public Prosecutor [2010] 5 MLJ 145 para 49.
44 Zaidi bin Kanapiah, para 75.
45 See Jane Stapleton, Three Essays on Torts (Oxford University Press 2021) 1 (for the notion that tort law is a human construct); Sonia Waisman, Bruce A Wagman & Pamela D Frasch, Animal Law: Cases and Materials (Carolina Academic Press 2006) 66 (for the notion that property laws are a human construct).
46 George W Rainbolt, ‘Book Review: International Law as Social Construct: The Struggle for Global Justice’ (Notre Dame Philosophical Reviews, 20 Jun 2013) <https://ndpr.nd.edu/news/international-law-as-social-construct-the-struggle-for-global-justice/> accessed 5 Mar 2021. See also Edmonson, William A, ‘Why Legal Theory Is Political Philosophy’ (2013) 19 Legal Theory 331, 332Google Scholar (‘law doubtlessly is an artifact, a human device or family of devices that is meant to serve and is thought to serve a kaleidoscopic variety of human purposes’). Note that this is different from saying that law is a social construct in the sense that law consists only of social facts: see Priel, Dan, ‘Law as a Social Construction and Conceptual Legal Theory’ (2019) 38 Law and Philosophy 267CrossRefGoogle Scholar. The notion of law as a human construct makes a claim not on the content of law, but on its epistemological origins, viz whether law is discoverable by observation or if it is an object to be formulated. This is undisputed even by natural law theorists: see Duncan Spiers, Jurisprudence Essentials (Edinburgh University Press 2011) 5.
47 Carlo Focarelli, International Law as Social Construct: The Struggle for Global Justice (Oxford University Press 2012) 35.
48 Peters, Christopher J, ‘Book Review: The Vantage of Law: Its Role in Thinking about Law, Judging and Bills of Rights by James Allan’ (2013) 32 Law and Philosophy 339CrossRefGoogle Scholar.
49 Leduox, Stephen F, ‘Defining Natural Sciences’ (2002) 5 Behaviorology Today 34Google Scholar.
50 For example, however much one wishes for water to boil at room temperature and pressure, this will not change the reality that water will only ever boil at a temperature of 100 degree Celsius at an atmospheric pressure of 1 atm.
51 John Finnis, Human Rights and Common Good: Collected Essays Volume III (Oxford University Press 2011) 1.
52 Ronald Dworkin, Law's Empire (Harvard University Press 1986) 176.
53 Hart (n 20) 193.
54 Kari Saastamoinen (ed), The Law of Nations and Natural Law 1625–1800 (Brill 2019) ch 5.
55 Amin George Forji, ‘The Correlation Between Law and Behaviour as Pillars of Human Society’ (2010) 6 International Journal of Punishment and Sentencing 84, 85.
56 Hans Kelsen, ‘The Law as a Specific Social Technique’ (1941) 9 University of Chicago Law Review 75, 79.
57 JW Harris, ‘When and Why Does the Grundnorm Change?’ (1971) 29 Cambridge Law Journal 103, 108.
58 Matthew H Kramer, ‘John Austin on Punishment’, in Leslie Green & Brian Leiter (eds), Oxford Studies in Philosophy of Law: Volume 2 (Oxford University Press 2013) 103.
59 Harris (n 57) 106.
60 James Penner et al, McCoubrey & White's Textbook on Jurisprudence (4th edn, Oxford University Press 2008) 53.
61 Kelsen, Pure Theory of Law (n 8) 200.
62 András Jakab, European Constitutional Language (Cambridge University Press 2016) 328.
63 University College London, ‘Law in ancient Egypt’ (Digital Egypt for Universities, 2003) <https://www.ucl.ac.uk/museums-static/digitalegypt/administration/law.html> accessed 10 Mar 2021; Kathleen Kuiper, Ancient Egypt: From Prehistory to the Islamic Conquest (Britannica Educational Publishing 2011) 37. See also Nicolaas J van Blerk, ‘The emergence of law in ancient Egypt: The role of Maat’ (2018) 24 Fundamina 69.
64 Constitution of the Arab Republic of Egypt 1971, art 73.
65 Constitution of The Arab Republic of Egypt 2014, art 4.
66 Kelsen, Pure Theory of Law (n 8) 200, 209.
67 After all, as pointed out by Cohen, the Grundnorm is the ‘single synthesizing principle from which discrete judgments can be logically deduced’: Julius Cohen, ‘The Political Element in Legal Theory: A Look at Kelsen's Pure Theory’ (1978) 88 The Yale Law Journal 1, 12.
68 ibid.
69 As pointed out by Spagnolo, these individual legal norms are ‘the most important set of legal materials’ determining the what the Grundnorm is: Benjamin Spagnolo, The Continuity of Legal Systems in Theory and Practice (Bloomsbury Publishing 2015) 102.
70 Harris (n 57) 118.
71 Spagnolo (n 69) 103.
72 See Anthony Dillon, ‘A Turtle by Any Other Name: The Legal Basis of the Australian Constitution’ (2001) 29 Federal Law Review 241.
73 For example, see Simeon CR McIntosh, Kelsen in the ‘Grenada Court’: Essays on Revolutionary Legality (Ian Randle Publishers 2008) 79. McIntosh pointed out that Pakistan, as a former member of the British Empire, was previously subject to the British constitutional principle of ‘what the Crown in Parliament enact is law’.
74 Halsbury's Laws of Malaysia, Constitutional Law (Volume 3(3)) (LexisNexis Malaysia 2021) para 100.003.
75 The Federation of Malaya Order in Council 1948, Preamble.
76 ibid.
77 RH Hicking, ‘Preface – The Malayan Constitution’ Unannotated Statutes of Malaysia - Subsidiary Legislations (Kuala Lumpur 17 June 1958). In ex p Tan Kheng Long [1958] 3 MC 205, Article 124(1)(b) of the FMA 1948 was juxtaposed with and assessed in relation to Article 9 of the Federal Constitution of Malaya of 1957, implying that the FMA 1948 was considered to have a status equivalent to the Federal Constitution of Malaya before 1957. The fact that the original Schedule 12 of the Federal Constitution of Malaya 1957, which was nonetheless later repealed by the Constitution (Amendment) Act 1963 (Act No 25 of 1963), contained a list of provisions of the FMA 1948 applicable to the Legislative Council after Merdeka Day further indicates that the FMA 1948 was the hierarchically supreme legal norm within the 1948 Federation, the content of which was subsequently transposed to its successor.
78 Owing to the lack of a centralised, written constitution in the British legal system, a distinction should be made between the British Parliament or the British Crown being the legally superior norm of the United Kingdom legal order. As will be seen shortly, this will depend on the type of legal instrument used to promulgate a local law.
79 Halsbury's Laws of Malaysia (n 74).
80 FM Order in Council (n 75).
81 Richard Moules, ‘Judicial Review of Prerogative Orders in Council: Recognizing the Constitutional Reality of Executive Legislation’ (2008) 67 The Cambridge Law Journal 12, 12–13.
82 See FM Order in Council (n 75), Preamble. Under section 11 of the FJA, Orders in Council which were made pursuant to the FJA did not have to be passed by the British Parliament and only needed to be put before it for them to ‘have effect as if [they] were enacted in [the FJA]’.
83 R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland) [2019] UKSC 41. Since the discussion relates to events occurring before the United Kingdom's ascension into the European Union in 1972, the issue of whether the national legal norms of the United Kingdom can be disapplied by European legal norms is not relevant.
84 George Winterton, ‘Constitutionally Entrenched Common Law Rights: Sacrificing Means to Ends’, in Charles JG Sampford & Kim Preston (eds), Interpreting Constitutions: Theories, Principles and Institutions (The Federation Press 1996) 136.
85 For example, although the FMA 1948 provided that all three of the Colonial High Commissioner, the Secretary of State for the Colonies in the United Kingdom and the Conference of Rulers comprising of the Malay Rulers had veto power where legislation was concerned, the powers of the Conference of Rulers were limited as it did not play an important role in the formulation of federal policy. See Martin Rudner, ‘The Structure of Government in the Colonial Federation of Malay’ (1976) 13 South East Asian Studies 495, 503.
86 See Karl Zemanek, ‘State Succession After Decolonization’, in Académie de Droit International de la Ha (ed), Recueil Des Cours, Collected Courses Volume 116 (Brill 1968) 192; Charles Parkinson, Bills of Rights and Decolonization: The Emergence of Domestic Human Rights Instruments in Britain's Overseas Territories (Oxford University Press 2007) 99; Zelman Cowan, ‘The Emergence of a New Federation in Malaya’ (1958) 1 Tasmanian University Law Review 46, 49.
87 Examples include Pakistan (see McIntosh (n 73)), Kenya (JO Rachuonyo, ‘Kelsen's Grundnorm in modern Constitution-Making: The Kenya Case’ (1987) 20 Verfassung Und Recht in Übersee / Law and Politics in Africa, Asia and Latin America 416), Southern Rhodesia (JM Eekelaar, ‘Splitting the Gunrdnorm’ (1967) 30 The Modern Law Review 156), Canada (ibid 157), Uganda (Hopton (n 35) 72) and Australia (Dillon (n 72)).
88 Parliamentary Education Office & Australian Government Solicitor, Australia's Constitution: With Overview and Notes by the Australian Government Solicitor (7th edn, Department of the Senate 2010).
89 Legislative Department, The Constitution of India (5th Pocket Size edn, Ministry of Law and Justice 2022) <https://legislative.gov.in/sites/default/files/COI_English.pdf> accessed 15 Aug 2022.
90 Although there are those who have ‘expressed interest in finding an autochthonous source for the Australian constitutional system’ (Nicholas Aroney, ‘A Public Choice? Federalism and the Prospects of a Republican Preamble’ (1999) 20 University of Queensland Law Journal 262, 284), the more convincing view is that the legal source of the Constitution is the United Kingdom Parliament, because Australia's constitutional arrangements are still legally derived from, but not subordinate to, the United Kingdom Parliament which enacted the Constitution as part of (not merely a schedule to) one of its statutes (Dillon (n 72)).
91 See Dillon (n 72). This is a predicament which was prevalent among ‘nations whose constitutions are the product of continuous legal devolution from the constitution imposed by the parent nation’ (Aishwarya S Bagchi, ‘Exploring constitutional legitimacy’ (2015) 2 Public Interest Law Journal of New Zealand 165, 165; 169; 173), such as New Zealand (ibid) and Canada (Sebastian Schmid, ‘The Retransfer of Legislative Competences by the UK Parliament’ (2014) 74 Heidelberg Journal of International Law 223, 235).
92 ibid. For the distinction between a ‘legal’ and ‘political’ revolution, see Michael S Green, ‘Legal Revolutions: Six Mistakes About Discontinuity in the Legal Order’ (2005) 83 North Carolina Law Review 331, 333.
93 Despite the fact that the IIA contained a provision empowering the Constituent Assembly to create the Indian Constitution: see IIA, s 8(1).
94 Anupama Roy & Michael Becker, ‘Dimensions of Constitutional Democracy’, in Anupama Roy & Michael Becker (eds), Dimensions of Constitutional Democracy: India and Germany (Springer 2020) 10.
95 Cyrus Vimalakumar Das, ‘Emergency Powers and Parliamentary Government in Malaysia: Constitutionalism in a New Democracy’ (PhD thesis, Brunel University 1994) 71.
96 The 1957 Act, Preamble; FMA 1957, s 3.
97 The 1957, s 3; FMA 1957, s 6. Notwithstanding that the prohibition on the Malay Rulers from entering into ‘any negotiation relating to the cession or surrender of the State’ under the pre-independence state constitutions of the Malay states was amended in time to render the revocation of the FMA 1948 and the State Agreements lawful (Ahmad Ibrahim, Malaysian Legal History (Faculty of Economics & Administration, University of Malaya 1970) 151), because the FMA 1957 did not authorise the creation of the Federal Constitution, it cannot be said that a there was any legal continuity between the pre-independence state constitutions and the present-day Federal Constitution. It follows that when the Federal Constitution took its place as the new supreme legal norm, the Malay Rulers’ source of constitutional authority changed accordingly. That the Malay Rulers’ residual powers and sovereignty under the Federal Constitution were entirely derived from and subject to the Federal Constitution can be seen from the caveat in Article 181(1) of the Federal Constitution of ‘Subject to the provisions of this Constitution’.
98 This is analogous to how, during the French Revolution, the legal validity of the Declaration of the Rights of the Man and of the Citizen of 1789 did not depend on King Louis XVI's acceptance and recognition; rather, it stemmed from the authority of the French National Constituent Assembly, which ‘no longer depended upon the royal will’ (Green (n 92)). King Louis XVI's recognition therefore ‘merely acknowledged an established legal fact’, ie, the legal revolution brought about by the National Constituent Assembly (ibid).
99 FMI Order in Council, Preamble.
100 ibid, Preamble; s 2 (emphasis added).
101 FMA 1948, pt V.
102 See JM Eekelaar, ‘Splitting the Grundnorm’ (1967) 30 Modern Law Review 156, 168: ‘a lawful authority acting ultra vires is equally a usurper’. See also Dato’ Seri Mohd Hishamudin Yunus et al, MP Jain's Administrative Law of Malaysia (LexisNexis 2020) 96: ‘If power is conferred to legislate only with respect to certain topics, or for certain purposes, or in certain circumstances, the limits of the power must not be crossed.’
103 FMA 1948, s 48, para 1(2)(a) of the Second Schedule.
104 Briefly, ‘internal sovereignty’ relates to the state's ‘authority over all internal persons and entities’ whereas ‘external sovereignty’ refers to the state's relationship with ‘external powers’: Christopher W Morris, An Essay on the Modern State (Cambridge University Press 1998) 174. See also Andrew J Williams, Amelia Hadfield & J Simon Rofe, International History and International Relations (Routledge 2012) 113.
105 Note that because the FMA 1957, as explained above, did not have the object of giving legal effect to the Federal Constitution, the Federal Legislative Council could not leverage on paragraph 1(2)(a) of the Second Schedule of the FMA 1948 in conjunction with the FMA 1957 to implement a change to the Federation's internal sovereignty.
106 Under section 100(1)(a) of the FMA 1948, the Councils of State had the power to pass laws on ‘any subject’ other than those over which the Federal Legislative Council had power.
107 Kelsen, Pure Theory of Law (n 8) 208, 211.
108 Cohen (n 67) 12.
109 This distinguishes Kelsen from legal positivists such as Hart or Austin whose legal theories are premised on and derived from observations of social phenomena: Jules L Coleman, ‘Rules and Social Facts’ (1991) 13 Harvard Journal of Law & Public Policy 703.
110 Kelsen, Pure Theory of Law (n 8) 212.
111 In referring to the monarchic heads of the Malay states, the term ‘Malay Ruler’ will be used, which for the purpose of this article includes a reference to Negeri Sembilan's Yang di-Pertuan Besar.
112 Owing to constraints on the discussion space, it is not possible to carry out an ad infinitum backward-tracing exercise. Instead, the start of the British colonisation period is chosen as the stopping point, and it will be presumed that prior to the relocation of the Malayan supreme legal norm to the British Parliament, supreme legal power resided locally. The period of Japanese occupation (1941–1945) will also not be examined, because the omission does not affect the analysis that a change in the Grundnorm occurred when the Malayan Union Order in Council was promulgated.
113 See Barbara Watson Andaya & Leonard Y Andaya, A History of Malaysia (MacMillan Education Ltd 1982) 172; Jim Baker, A Popular History of Malaysia and Singapore (Marshall Cavendish International (Asia) Private Limited 2008) 147.
114 For states other than Johor and Terengganu (which had established their state constitutions in 1895 and 1911 respectively), the state constitutions were introduced only in 1948 upon the creation of the 1948 Federation: Cheah Boon Kheng, Malaysia: The Making of a Nation (Institute of Southeast Asian Studies 2002) 18. Moreover, a clear distinction needs to be made between the hierarchically supreme legal norm and the other subsidiary norms which existed along the legal chain (such as Islamic laws and the local Malay customs). As the supreme legal norms of the Malay states changed (for example, from the autocratic decisions of the Malay Rulers to British Parliamentary enactments), so would the source of legal validity of these subsidiary norms.
115 See generally Hasbollah Mat Saad, A Brief History of Malaysia: Texts and Materials (2nd edn, Pena Hijrah Resources 2018) 62–85.
116 MU Order in Council, Preamble
117 See HP Lee, Constitutional Conflicts in Contemporary Malaysia (Oxford University Press 2017) 6.
118 See Cheah, Malaysia: The Making of a Nation (n 114) 16.
119 Cheah Boon Kheng, ‘The Erosion of Ideological Hegemony and Royal Power and the Rise of Postwar Malay Nationalism, 1945–46’ (1988) 19 Journal of Southeast Asian Studies 1, 23.
120 Whether an autocratic ruler's self-imposed limitation on their powers amount to an unauthorised change depends on the extent of the limitation. As Green ((n 92) 383) points out, when the limitation is so great such that it ‘chang[es] the very axiom that gives it authority’, then a revolution would have occurred. This is why the limitation of the Malay Rulers’ powers during the period of British indirect rule could be distinguished from the Malay Rulers’ surrender of sovereignty under the Malayan Union. When the Malay Rulers agreed to accept or be guided by the advice of the Residents or British Advisors, or indeed to accept the formation of State and Federal Councils which limited the practical lawmaking role of the FMS Malay Rulers, these did not involve a complete negation of their sovereignty; practically speaking, the Malay Rulers must have had ‘some authority to self-limit [their] lawmaking powers’ (ibid 388). However, under the Malayan Union, in allowing the British Crown to claim ‘full power and jurisdiction’ over the Malay States (MU Order in Council (n 116), Preamble), save for matters relating to the ‘Muhammadan religion’ (ibid, s 75), the Malay Rulers were effectively using ‘[their] authority to change the axiom itself’ (Green (n 92) 388), the very axiom which was the Malay Rulers’ source of authority in the first place. This would, in Green's view (ibid), amount to a legal revolution.
121 First Charter, Preamble.
122 In the goods of Abdullah [1835] 2 Ky Ecc 8; Sir Walter J Napier, ‘An Introduction to the Study of the Law Administered in the Colony of the Straits Settlement’ (1974) 16 Malaya Law Review 4, 25.
123 See R v Willans [1858] 3 Ky 16 para 22.
124 Leander Beinlich, ‘Royal Prerogative’ in Rainer Grote, Frauke Lachenmann & Rüdiger Wolfrum (eds), Max Planck Encyclopedia of Comparative Constitutional Law (Oxford University Press 2019) <https://oxcon.ouplaw.com/view/10.1093/law-mpeccol/law-mpeccol-e773> accessed 10 Mar 2021. For example, the Charter of Justice of 1807 was issued pursuant to the Letters Patent of 25 Mar 1807, 47 Geo III, whereas the Charter of Justice of 1826 was issued pursuant to the Letters Patent of 27 Nov 1826, 7 Geo IV: Kevin YL Tan, ‘International Law in the Courts of the Straits Settlements’ (2010) 16 Asian Yearbook of International Law 65.
125 Gail Bartlett & Michael Everett, The Royal Prerogative (Briefing Paper, No 03861, 17 Aug 2017) 5.
126 Sheila Ramalingam, Johan Shamsuddin Hj Sabaruddin & Saroja Dhanapal, ‘The Reception and Application of English Law in Malaysia’ (2018) 1 Legal Network Series 1, 3.
127 Second Charter, Preamble.
128 MB Hooker, ‘The East India Company and the Crown’ (1969) 11 Malaya Law Review 1, 28.
129 A distinction should be made between both since the Royal Prerogative is ‘the remaining portion of the Crown's original authority’ (emphasis added) and the ‘residue of discretionary power’ exercisable by the Crown: AV Dicey, The Law of the Constitution (JWF Allison ed, Oxford University Press 2013) 189.
130 PP Buss-Tjen, ‘Malay Law’ (1958) 7 American Journal of Comparative 248, 251.
131 Tan (n 124).
132 This transfer was effected by the Straits Settlements Act 1866, 29 & 30 Victoria Cap 115 (hereinafter ‘1866 Act’), and the Order in Council of 28 Dec 1866 (hereinafter ‘1866 Order in Council’), which was enacted under the authority of the 1866 Act: AF Madden et al, The Dependent Empire and Ireland, 1840–1900: Advance and Retreat in Representative Self-Government (Greenwood Press 1991) 529–530.
133 The Straits Settlement was abolished by the Straits Settlements Repeal Act 1946, and Penang and Malacca were inducted into the Malayan Union via the MU Order in Council, which was made by the British Crown pursuant to the FJA: MU Order in Council (n 116), Preamble.
134 This occurred in 1769 (Geoffrey Marston, ‘International Law and the Sabah Dispute’ (1967) Australian Yearbook of International Law 108), which was before the British East India Company was nationalised and taken over by the British Government (Nick Robins, The Corporation That Changed the World: How the East India Company Shaped the Modern Multinational (2nd edn, Pluto Press 2012) 6).
135 Ooi Keat Gin, The Japanese Occupation of Borneo, 1941–1945 (Routledge 2011).
136 The North Borneo Cession Order in Council 1946, art 2. Unlike the FM Order in Council and MU Order in Council, the North Borneo Cession Order in Council 1946 made no mention of any enabling legislative provision, and therefore can be considered to have been issued solely under the British Crown's Royal Prerogative, in the light of the residual nature of prerogative powers: Beinlich (n 124).
137 HM Stationery Office, North Borneo 1955 (Colonial Reports 1956) 144.
138 This assumes that there had been a ‘revolution’ when Sarawak was handed over to the British by the last Rajah of Sarawak, Charles Vyner Brooke. The Rajahs of Sarawak, who took over Sarawak from the Malay Ruler of Brunei in 1841, were the sovereign of Sarawak since there was no legislative council or body which enacted or advised upon legislation and all orders were enacted by the Rajahs alone (T Stirling Boyd, ‘The Law and Constitution of Sarawak’ (1936) 18 Journal of Comparative Legislation and International Law 60, 65). Even if one argues that owing to Vyner Brooke's active and willing participation in the handover, and the new supreme legal norm (the Royal Prerogative) was authorised by Vyner Brooke, thus making the Rajah of Sarawak's autocratic orders the real former historically first constitution, nonetheless this still does not alter the fact that there had been a change in the Grundnorm in 1946.
139 The London Gazette (The Court at Buckingham Palace, 2 Jul 1947) 3394.
140 Mat Saad (n 115) 105.
141 See Andreas Kalyvas, ‘The basic norm and democracy in Hans Kelsen's legal and political theory’ (2006) 32 Philosophy & Social Criticism 573.
142 This is especially since the Federal Constitution contains a minimum standard of protection to safeguard democratic rights and liberties. See Federal Constitution, pt 2.
143 Andrew Harding, Constitutionalism beyond Liberalism (Cambridge University Press 2017) 256.
144 Bindreiter (n 40) 16.
145 Marmor (n 5).
146 ibid. See also Joseph Raz, ‘Kelsen's Theory of the Basic Norm’ (1974) 19 American Journal of Jurisprudence 94, 107.
147 See ibid (Raz's explanation of the distinction between the ‘personal point of view’ and ‘point of view of legal science’).
148 For example, the difference between legal and moral normativity lies in ‘the relevant vantage point that is determined by their different basic norms’: Marmor (n 5).
149 Who presupposes a Grundnorm prescribing a positive legal norm as the supreme norm of the legal order.
150 Who presupposes a Grundnorm prescribing God's commands as the supreme norm of the religious order.
151 For the difference between ontological and methodological positivism, see Mario Patrono, ‘Hans Kelsen: A Peacemaker Through Law’ (2014) 45 Victoria University of Wellington Law Review 647, 657.
152 Kelsen, Pure Theory of Law (n 8) 218.
153 ibid.
154 Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (Oxford University Press 2017) 43.
155 Jaclyn L Neo, ‘A Contextual Approach to Unconstitutional Constitutional Amendments: Judicial Power and the Basic Structure Doctrine in Malaysia’ (2020) 15 Asian Journal of Comparative Law 69, 69–70.
156 ibid 70.
157 Article 121(1) of the Federal Constitution originally stated that ‘The judicial power of the Federation shall be vested in a Supreme Court and such inferior courts as may be provided by federal law’. After the amendment via the Constitution (Amendment) Act 1988, the current Article 121(1) reads: ‘…the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law.’
158 [2017] 3 MLJ 561 paras 75–86.
159 [2018] 1 MLJ 545 para 42.
160 [2019] 4 MLJ 1 paras 72–73.
161 [2021] MLJU 12.
162 [2021] MLJU 195.
163 [2021] 3 MLJ 759.
164 While some commentators take the view that these recent cases did not completely displace the basic structure doctrine from Malaysian constitutional jurisprudence (see Tan Kian Leong & Shukri Shahizam, ‘O Bitter Pill to Swallow: Separating Ratio from Dicta in Maria Chin Abdullah’ (2021) 1 Malayan Law Journal ccxcix; Zaidi bin Kanapiah, paras 66–67) the concern of this article is less the continued applicability of the basic structure doctrine (its significance notwithstanding) and more the legal-theoretic underpinnings of the controversy. In any case, the present uncertainty of the status of basic structure doctrine in Malaysian constitutional jurisprudence was acknowledged in Dhinesh a/l Tanaphll v Lembaga Pencegahan Jeneyah & Ors [2022] MLJU 576 paras 128–129.
165 While procedural ultra vires concerns whether the correct procedures have been followed in the promulgation of the norm, substantive ultra vires occurs when the promulgated norm exceeds the ‘scope, extent and range of power’ conferred by the enabling norm: see Yunus et al (n 102) for an example of substantive ultra vires.
166 Rovin Joty, para 286; Phang Chin Hock v Public Prosecutor [1980] 1 MLJ 70, 74.
167 A dissenting judgment in Zaidi bin Kanapiah had argued that ‘Changing the basic features of the FC would result in a change of the Grundnorm … and thus effectively eliminate the very foundation of Malaysia itself’ (para 72). With respect, even if there were in fact an effective and unauthorised change in the superior legal norm of a legal system upon the amendment of Article 121(1) of the Federal Constitution in 1988, the Grundnorm's role is not to cast judgment on whether the ‘moral’ status quo should be preserved, but merely to adapt to the factual change. As such, any view that such change is undesirable would have to be justified by recourse to theories other than the Pure Theory.
168 See Semenyih Jaya, para 75: ‘With the removal of judicial power from the inherent jurisdiction of the Judiciary, that institution was effectively suborned to Parliament, with the implication that Parliament became sovereign.’
169 At a fundamental level, both the proponents and opponents of the basic structure doctrine agree that the Grundnorm of the Malaysian legal system prescribes that participants of the Malaysian legal system ought to obey the Federal Constitution: see eg, Maria Chin Abdullah, paras 311 and 600; Rovin Joty, paras 77 and 310; Zaidi bin Kanapiah, paras 94 and 340.
170 The distinction between inter- and intra-norm relationships is the reason why, while it would make sense to speak of the Federal Constitution's authorisation of Act A704, it would nevertheless be odd to claim that Article 121(1) is legally derived from and validated by Article 4(1). After all, it was the Federal Constitution as a whole, rather than Article 4(1) in particular, that was designated as the supreme legal norm of the Malayan legal order in 1957. Moreover, because the supreme status of the Federal Constitution was derived not from a legal source, but from an axiomatic, extralegal one (Green (n 92) pt II), it would be incorrect to say that it was Article 4(1) that had bestowed the Federal Constitution with constitutional supremacy.
171 If the judiciary were fully subordinate to the legislature, as a literal interpretation of Article 121(1) of the Federal Constitution would have it, the judiciary would be powerless to invalidate laws inconsistent with the Federal Constitution if Parliament enacts a law that ousts the jurisdiction of the courts. Realistically, even if Article 4(1) of the Federal Constitution remains intact, it would be rendered ineffectual in practice if Parliament usurps the judiciary as its co-equal, for there would be no other state organ with the power to review Parliamentary actions.
172 To use a Hartian analogy, the difficulty lies not in ascertaining whether the rules of recognition have been followed, but rather what the rules of recognition are. Dworkin terms the latter a form of ‘theoretical’ as opposed to ‘empirical’ disagreement: Dworkin (n 52) 5.
173 Green (n 92) would most likely answer the question in the positive, leveraging on which the Pure Theory is able to make the syllogistic determination that such a norm is invalid and thus ‘revolutionary’. However, the basic structure doctrine debate exists precisely because such a view is by no means conclusive nor universally accepted.
174 For example, the Federal Court in Rovin Joty (para 346) example, the Federal Court in stated that although there was ‘no doubt’ that separation of powers and judicial independence are cornerstones of a democratic society, nevertheless their application ‘[depend] on the provision of the Constitution’.
175 David Dyzenhaus, ‘Form and Substance in the Rule of Law’, in Christopher Forsyth (ed), Judicial Review and the Constitution (Hart Publishing 2000) 154.
176 Indeed, some critics have questioned whether Kelsen has an interpretative theory to begin with: see Stanley L Paulson, ‘Kelsen on legal interpretation’ (1990) 10 Legal Studies 136.
177 Kramer, Matthew H, ‘When is there not one right answer?’ (2008) 53 The American Journal of Jurisprudence 49CrossRefGoogle ScholarPubMed.
178 Kelsen, Pure Theory of Law (n 8) 352.
179 ibid 351.
180 This stands in contradistinction to theories of interpretation which suggest that there is an inevitable answer to each interpretative act, most notably Ronald Dworkin's ‘one-right-answer thesis’. Stephen Guest, ‘Dworkin's ‘One-Right-Answer’ Thesis’ (2016) Problema: Anuario de Filosofía y Teoría del Derecho no 10, 3 <https://www.redalyc.org/articulo.oa?id=421943648001> accessed 10 Mar 2021.
181 Kelsen, Introduction to the Problems of Legal Theory (n 24) 83, 129.
182 Such sentiments were echoed by the Federal Court in Rovin Joty (para 250), which took the view that doctrines and concepts which are not contained in the provisions of the Federal Constitution cannot be used to interpret the Federal Constitution. However, contra Kelsen, who acknowledged the open-textured nature of legal interpretation and who believed that legal interpretation alone can lead to no right answer unless extralegal considerations are taken into account, the Federal Court appears to believe that ‘settled rules of construction’ (para 172) sans policy considerations are sufficient for the arrival at the correct interpretation.
183 As has been the case in Semenyih Jaya, Indira Gandhi and Alma Nudo.
184 See Tay, Wilson TV, ‘Basic Structure Revisited: The Case of Semenyih Jaya and the Defence of Fundamental Constitutional Principles in Malaysia’ (2019) 14 Asian Journal of Comparative Law 113, 135CrossRefGoogle Scholar.
185 Klaus Adomeit, Rechtstheorie für Studenten : Normlogik, Methodenlehre, Rechtspolitologie (von Decker 1979) 77.
186 Kelsen, Introduction to the Problems of Legal Theory (n 24) 18.
187 Lon Fuller, The Principles of Social Order (K Winston ed, Bloomsbury 1981) 249–250.
188 As pointed out by NW Barber, ‘The Significance of the Common Understanding in Legal Theory’ (Oxford Legal Studies Research Paper no 2/2012) 1 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1995809> accessed 8 Aug 2022.
189 Randy E Barnett, ‘Why We Need Legal Philosophy’ (1985) 8 Harvard Journal of Law & Public Policy 1, 16.
190 One should not be put off by the prospect that it may be practically impossible to identify a legal theory which can account for every single aspect of the Malaysian legal system, since legal theories possess a certain degree of universality whereas individual legal systems are necessarily idiosyncratic: Joseph Raz, ‘Can there be a theory of law?’, in Martin P Golding & William A Edmundson (eds), The Blackwell Guide to the Philosophy of Law and Legal Theory (Blackwell Publishing Ltd 2005) 337–342. For example, although Hart's positivistic rule of recognition is commonly seen as the source of validity for the supremacy of the British constitutional system (Tucker, Adam, ‘Uncertainty in the Rule of Recognition and in the Doctrine of Parliamentary Sovereignty’ (2011) 31 Oxford Journal of Legal Studies 61, 62CrossRefGoogle Scholar), it has not impeded efforts arguing for a ‘natural law’ conception of the British legal system. For instance, Trevor Allan has criticised the failure of positivistic theories to account for the instances where ‘courts interpret legislation in the light of the constraints of legality’ and protect fundamental rights ‘by recognizing implicit limitations to Parliament's legislative supremacy’ (TRS Allan, ‘Questions of legality and legitimacy: Form and substance in British constitutionalism’ (2011) 9 International Journal of Constitutional Law 155).
191 Mark Greenberg, ‘Principles of Legal Interpretation’ (2016) 1 <http://philosophy.ucla.edu/wp-content/uploads/2016/08/Principles-of-Legal-Interpretation-2016.pdf> accessed 10 Mar 2021.