In a country that often struggles to reconcile the diverse outlooks of its pluralist society, few things have been able to claim the monopoly wielded by the Federal Constitution over the Malaysian psyche. Arguments from authority invoking the Federal Constitution as a ‘trump card’ – ‘A is wrong because it violates the Federal Constitution’ or ‘I am entitled to B because the Federal Constitution states so’ – are commonplace. The notion that one has to obey the Federal Constitution is often taken for granted, and justifications for the constitutional supremacy of the Federal Constitution rarely go beyond a circular affirmation of supremacy as enshrined in Article 4(1) of the Federal Constitution.Footnote 2
Using Kelsen's Pure Theory of Law (hereinafter ‘Pure Theory’), and in particular, the concept of the Grundnorm or basic norm, this article seeks to elucidate how and why the Federal Constitution is able to claim its supreme status within the Malaysian legal system. Kelsen's Pure Theory is at its core a positivistic theory, which is to say that Kelsen viewed law as ‘independent of morality and similar norm systems’.Footnote 3 However, contra Bentham and Austin, Kelsen rejected the view that the law can be reduced to facts about ‘power and obedience’.Footnote 4 For Kelsen, it is possible for the law to be both devoid of political or moral ideology and normative (in the sense of being ‘justified’ or ‘a valid reason for action’).Footnote 5 At the heart of Kelsen's Pure Theory is the device of the Grundnorm, using which Kelsen explained why the obligations prescribed by a legal norm (such as a legislation or constitutional document) are valid and binding.
This article will first sketch the concept of the Grundnorm in the context of the Federal Constitution by explaining why it is incorrect to characterise the Federal Constitution as being one and the same as the Grundnorm. Next, it goes on to explore the question of whether the Grundnorm of the Malaysian legal system can in fact be expressed as ‘one ought to obey the prescriptions of the Federal Constitution’ in the light of Malaysia's colonial past, as well as of the historical events leading up to the independence of Malaya in 1957 and the formation of Malaysia in 1963. In doing so, it demonstrates the utility of Kelsen's Pure Theory in the ascertainment of the legal validity of rules. At the same time, this article will also examine the Pure Theory's deficiencies in serving as the jurisprudential foundation of the Malaysian legal system. Using the example of the controversy surrounding the basic structure doctrine in Malaysia, it argues that the Pure Theory's strict adherence to legal ‘purity’ and its conditional normativity fails to provide useful guidance for the resolution of constitutional conflicts involving the meaning and content of a legal norm. This article concludes with the view that the limitations of the Pure Theory evince a need for wider efforts to be made in order to expound a legal theory that can holistically account for the various features of the Malaysian legal system.
The Nature of the Grundnorm
The supremacy of the Federal Constitution of MalaysiaFootnote 6 within the Malaysian legal order is widely acknowledged and undisputed. This legal reality is commonly attributed to the concept of the Grundnorm,Footnote 7 the central device of Hans Kelsen's Pure Theory. The Pure Theory purports to be a methodologically ‘pure’ legal science that explains ‘what and how the law is’ rather than how the law ‘ought to be’ without any recourse to the extra-legal input of disciplines such as psychology, sociology, or moral and political theory.Footnote 8 Central to the Pure Theory is the notion that norms are held together in a vertical hierarchy, and such a hierarchy is maintained through the regulation, creation and validation of a lower norm by a higher norm.Footnote 9 Because this process of norm interaction occurs iteratively along a chain of norms, a stopping point is needed to avoid an infinite regress.Footnote 10 That ultimate stopping point, which lies at the apex of the chain of norms and upon which the entire legal order hangs,Footnote 11 is the Grundnorm. A lower norm is valid if it is derived from a higher norm in the prescribed form and manner, and the Grundnorm is the ultimate validity-bestowing authority. In stipulating the Grundnorm – rather than social factsFootnote 12 or moral principles – as the common source and foundation of positive laws,Footnote 13 the legal system can be seen as self-containedFootnote 14 and logically closed.Footnote 15
In constitutional discourse generally, the Federal Constitution is often described as ‘the Grundnorm of the Malaysian legal order’,Footnote 16 or is said to ‘[constitute] the Grundnorm … to which all the other laws are subject’.Footnote 17 Such language signifies the tendency to treat the Federal Constitution as synonymous with the Grundnorm. The confluence of a supreme positive norm with the Grundnorm is similarly present in accounts of other legal systems. For example, Gu describes the 1997 handover of Hong Kong to China as resulting in a ‘shift’ of the Grundnorm of the Hong Kong legal system from the constitutional foundation established by the British Letters Patent and Royal Instructions of 1843 to the Constitution of the People's Republic of China (PRC).Footnote 18 HLA Hart himself saw the Grundnorm and a constitutionFootnote 19 as occupying the same functional role within the legal order, and considered the former a ‘needless reduplication’ of the latter.Footnote 20
The Distinct Nature of the Grundnorm and the Federal Constitution
The equation of the Federal Constitution to the Grundnorm implies that the Grundnorm is positive and legal in nature, just as the Federal Constitution is. This contradicts Kelsen's depiction of the Grundnorm as a product of thought.Footnote 21 The Federal Constitution is a concrete norm whose content is readily identifiable from its body of text. It comes into being as a result of its promulgator's ‘act of will’, and expresses the promulgator's will through legal language.Footnote 22 On the other hand, the Grundnorm is not ‘real’, in the sense that it ‘does not really exist except in our thinking’.Footnote 23 Unlike the Federal Constitution, the Grundnorm does not result from an act of creation, but from a conjuration of the mind. Before the differences between the Grundnorm and the Federal Constitution are more fully fleshed out, it is important to first have a clear idea of what exactly the Grundnorm is.
The Grundnorm as a presupposition or fiction
Between the publication of The Pure Theory of Law and Kelsen's final writings, the Grundnorm underwent an evolution of identity from a ‘presupposed condition of all lawmaking’Footnote 24 to a ‘genuine fiction’.Footnote 25 A presupposition is a prelude to a proposition, and in this case, the Grundnorm is the indispensable conceptual precursor to the factual supremacy of the Federal Constitution. This can be contrasted with Kelsen's later depiction of the Grundnorm as a ‘Vaihingerian fiction’,Footnote 26 which characterised the Grundnorm as a posited fictional norm that not only contradicts reality but also itself.Footnote 27 The reformulation of the Grundnorm into a norm resulting from a fictional act of will has not found favour with commentators of Kelsen's work,Footnote 28 and therefore this article will not delve further into the distinction between the Grundnorm as a presupposition and as a fictional norm. Instead, the terms ‘presupposition’ and ‘fiction’ or ‘fictional norm’ will be used interchangeably to refer to the character of the Grundnorm seeing as the instrumental function of the Grundnorm, which is the concern of this article, remains unaffected by the distinction.
In essence, the Grundnorm is an aid to thinkingFootnote 29 or a ‘cognitive device’Footnote 30 that allows one to determine which norms of any particular legal order are valid and binding. In the spirit of Kantian transcendental idealism which posits that things in themselves are different from and independent of things as experienced by perceivers,Footnote 31 Kelsen viewed norms as ‘interpretative schemes’ that possess no objective reality. Rather, it is only through the attribution of meaning to norms via ‘acts of interpretation’ that we are able to construct a coherent system of norms.Footnote 32 The role of the Grundnorm within this interpretative endeavour is twofold. First, it serves the epistemological function of affirming the Federal Constitution's legal fiat on the matter of the creation, validation, and regulation of norms.Footnote 33 Secondly, the Grundnorm's focus on form rather than substance serves the methodological function of clarifying how positive law can be cognised as well as the type of knowledge derivable from a system of legal norms.Footnote 34
Differences between the Grundnorm and the Federal Constitution
It follows from the above that the Grundnorm differs from the Federal Constitution in terms of its position within the legal order and the nature of its content. The Grundnorm is the hierarchically supreme ‘norm’ if all types of norms are considered, whereas the Federal Constitution is the supreme positive or legal norm which is still subject to the authorisation of the non-positive Grundnorm.Footnote 35 If, as Kelsen explained, the Grundnorm is the reason of validity for the supreme positive norm,Footnote 36 it would be logically incorrect to consider the Federal Constitution interchangeably with the Malaysian Grundnorm. This is why even though the Pure Theory rejects the view that legal norms such as laws and regulations can be created via human cognition,Footnote 37 it nevertheless conceives of the act of presupposing the Grundnorm as an act of cognition.Footnote 38
The non-positive nature of the Grundnorm is discernible from the Grundnorm's lack of substantive content. Unlike the Federal Constitution's embodiment of specific legal content charting the architectural foundations of Malaysia,Footnote 39 the Grundnorm's content goes no further than highly condensed and abstracted prescriptions.Footnote 40 In The Pure Theory of Law, the formula of the Grundnorm is expressed as ‘Coercion of man against man ought to be exercised in the manner and under the conditions determined by the historically first constitution’,Footnote 41 which is to say that ‘one ought to obey the prescriptions of the historically first constitution’.Footnote 42 In Malaysia, assuming that the Federal Constitution is the current ‘historically first constitution’, the Grundnorm would be the presupposition or fictional norm that states ‘one ought to obey the prescriptions of the Federal Constitution’. Whether this assumption is in fact correct will be explored shortly.
Is the Grundnorm a Secure Constitutional Foundation for the Malaysian Legal System?
One might have difficulty reconciling the empirically and logically false nature of the Grundnorm with the venerated position of the Federal Constitution on the Malaysian constitutional altar. After all, can the Federal Constitution be meaningfully said to possess a ‘peremptory’Footnote 43 character or to be ‘the most vital working document which [Malaysians] created and possess’Footnote 44 if its validity is ultimately derived from a presupposition or fiction?
Any concern that the entire Malaysian legal system is built on a house of cards for want of a ‘proper’ foundation is ultimately misguided. The law, when understood as comprising of the legal system, legal rules, legal concepts,Footnote 45 and legal philosophy, is a human construct.Footnote 46 In other words, it is a product of ‘human social interactions’Footnote 47 created and maintained by its participants for certain shared or compatible objectives,Footnote 48 albeit to varying degrees. Unlike fields of knowledge that deal with natural events such as natural science,Footnote 49 in which human will and purpose have no sway on the workings of nature,Footnote 50 the law is malleable to the purpose which it has been created to serve. This ‘purpose’ can be widely varied– ranging from a promotion of human flourishing,Footnote 51 the political ideal of ‘integrity’ or moral coherence,Footnote 52 human survivalFootnote 53 to human sociality.Footnote 54
For Kelsen, the purpose of the law is to ‘bring about certain mutual behaviour of individuals’Footnote 55 via the ‘specific social technique of the coercive order’ of the law.Footnote 56 Thus, legal norms as well as the Grundnorm are coercive in that they command, permit, or authorise the use of force against people by way of sanctions.Footnote 57 Contra Austin,Footnote 58 Kelsen's focus was not on the consequences of the coercion, but on the source of the coercion, viz the authorising norm. As the stalwart constitutional kingpin of a legal order, the Grundnorm authorises the legal participant's interpretation of a command, permission or authorisation, which is manifested and applied by way of coercive enforcement.Footnote 59
In short, the relative ontological barrenness of the Grundnorm becomes less significant when one considers the instrumental value that it brings. The Pure Theory conceptualises the individual components of a legal order as a unified totality resting on the foundation of the Grundnorm, and facilitates the expeditious determination of whether x counts as a valid and binding legal rule within a particular legal order.
The Historically First Constitution
Using Kelsen's formula that the Grundnorm appoints the historically first constitution to prescribe the manner in which legal norms are created, the expression of ‘one ought to obey the prescriptions of the Federal Constitution’ implies that the Federal Constitution is the historically first constitution of the current Malaysian legal system. A ‘historically first’ constitution, also known as the ‘first accepted constitution’,Footnote 60 is a constitution whose creation has not been authorised by the former constitution.Footnote 61
Not all constitutions are by default historically first constitutions: the validity of a constitution that is currently in use might have been legally derived from an earlier constitution, whose validity was in turn derived from the constitution that preceded it, and this process continues until one reaches the historically first constitution.Footnote 62 A supreme legal norm is considered ‘historically first’ when it comes into existence in a way that forsakes the ‘old’ Grundnorm in favour of establishing a ‘new’ one. A historically first constitution is not necessarily the temporally oldest constitution of a territory. For example, after the theocratic-monarchic ancient EgyptFootnote 63 evolved into a presidential republicFootnote 64 and subsequently into a constitutional republic,Footnote 65 the prescription that ‘one ought to obey the commands of the God-king’ would no longer be the Grundnorm of the Egyptian legal system, not least because the present supreme positive norm of the Egyptian legal system is the Constitution of the Arab Republic of Egypt.
The Historically First Constitution – An Unauthorised Constitution
Not every change to the supreme legal norm automatically produces a historically first constitution and results in a change in the Grundnorm. Under the Pure Theory, a change in the Grundnorm can only occur in a ‘revolutionary’ manner. This might not necessarily mean a violent upheaval or a coup d’état, but can also entail a peaceful and effective constitutional change that occurs in an unauthorised manner, specifically by way of a ‘breach of a former constitution’.Footnote 66 For such a breach to occur, the new constitution must have been promulgated in a manner not envisioned by the former constitution, such that it breaks the continuity of the former constitutional order.
The reason for this is simple. For any legal chain of norms to remain internally coherent and consistent, the Grundnorm must be able to account for the validity of all legal norms contained in the entire hierarchy at any point in time.Footnote 67 The implication of this is that the prescription of a Grundnorm is inductively inferred and ‘distilled’Footnote 68 from the individual legal norms in a legal system, both written and unwritten.Footnote 69 In other words, because the prescriptions of the Grundnorm are derivative and constructive in nature, the presuppositional content of the Grundnorm is directly dependent on all the positive norms in the legal chain.Footnote 70 When a breach of the former constitution occurs, new laws might be promulgated in a new way that is incompatible with the criteria of validity prescribed in the former constitution, thus resulting in a mass of new subsidiary norms whose validity is not traceable to the former constitution. When the new norms, including norms which are ‘saved’ or retained from the previous constitutional order, are arranged into a new working legal order, a new formulation of the Grundnorm is needed to represent the latest constitutional reality.
This explains why a lack of authorisation by the former constitution is crucial in ascertaining whether there has been a change in the Grundnorm of a legal system. Had the new norms been created in a manner authorised by the former constitution, the presupposition distilled from these new norms would have been the same as the previous Grundnorm.Footnote 71
Application to Malaysia
It is tempting to assume that because Article 4(1) of the Federal Constitution provides for the supremacy of the Federal Constitution within the Malaysian legal order, one can assert without more that the Malaysian Grundnorm is that ‘one ought to obey the prescriptions of the Federal Constitution’. Yet, doing so glosses over the assessment of whether the Federal Constitution is in fact the historically first constitution of Malaysia, and overlooks the complex legal events occurring between 1948 and 1963. If ‘independence does not necessarily imply a legal break’,Footnote 72 and the independence of Malaya in 1957 and the formation of Malaysia in 1963 had moreover occurred in a non-violent manner, can the Grundnorm of Malaysia truly be said to have undergone a ‘revolution’ in 1957 or 1963? Or is the source of validity of the Malaysian legal order still rooted in the British constitutional system?Footnote 73
The Federal Constitution was first introduced in 1957 when the Federation of Malaya achieved independence from the British. Since then, it has undergone several changes, some more distinctive and controversial than others. The following discussions will demonstrate that although a Kelsenian ‘revolution’ had occurred with the establishment of the Federal Constitution of Malaya in 1957, this was not the case with the establishment of the Federal Constitution of Malaysia in 1963, at least where Peninsular Malaysia was concerned, as the latter was simply an authorised amendment of the former. However, where Sarawak and Sabah (then North Borneo) were concerned, the creation of the Federal Constitution of 1963 did effect a change in their respective Grundnorms.
The pre-independence period
In the period approaching 1957, the influence of British colonial power in Malaya had long been consolidated, especially after the creation of the Federation of Malaya in 1948 (hereinafter ‘1948 Federation’). The 1948 Federation was established on the basis of the Federation of Malaya Agreement 1948 (hereinafter ‘FMA 1948’),Footnote 74 and at the same time, agreements were signed between the British Crown and the Malay Rulers (hereinafter ‘State Agreements’).Footnote 75
Although the FMA 1948 was officially a treaty between the British Crown and the Malay Rulers,Footnote 76 it was in effect the Constitution of the Federation of Malaya.Footnote 77 Within the territorial confines of the 1948 Federation, the FMA 1948 was for all intents and purposes the highest positive legal norm in the Malayan legal chain. However, because of the 1948 Federation's colonial status, the chain of legal norms of the 1948 Federation extended beyond the Federation's parochial confines and formed a direct link with the British constitutional chain:Footnote 78 the 1948 Federation was established via the promulgation of the Federation of Malaya Order in Council 1948 (hereinafter ‘FM Order in Council’),Footnote 79 which affirmed the power of the British Crown to ‘hold, exercise and enjoy’ jurisdiction in the Federation of Malaya and the Malay States in a manner ‘ordered’ in the FMA 1948 and the State Agreements.Footnote 80 The status of the FM Order in Council thus hierarchically preceded the FMA 1948.
To clarify, two types of Orders in Council exist under English law: those made pursuant to legislation and to the Royal Prerogative.Footnote 81 In the case of the FM Order in Council, it was created pursuant to the Foreign Jurisdiction Act 1890 (FJA).Footnote 82 As the British legal system did not (and still does not) have a written constitution as its highest law, and instead abided by the constitutional principle that whatever the Crown in Parliament enacts is supreme,Footnote 83 its corresponding Grundnorm has generally been said to be ‘one ought to obey whatever the Crown in Parliament enacts’.Footnote 84
It would not be a stretch to postulate that a similar formulation of the Grundnorm applied to the 1948 Federation. Significantly, because the Grundnorm is apolitical in nature, it was irrelevant whether more legislative or executive power rested with British officials in Malaya, the Malay Rulers or local officials,Footnote 85 since any power exercised by these parties (however significant or insignificant) could be traced back to the supremacy of the British Parliament. The same reasoning extends to the type of laws applicable in the 1948 Federation: as long as British Parliamentary enactments were the most hierarchically superior positive norm, the ‘content’ of the Grundnorm remained unaffected by issues of when or to what extent English law was applied, formally or informally, in the Malay States. Indeed, the Grundnorm would remain unchanged even if legislation were passed by the British Parliament ordering the complete disapplication of English law in the 1948 Federation, leaving local legislations to be the only governing laws.
Using the same reasoning, one might be inclined to assume that this was still the case even after the 1948 Federation achieved independence from the British in 1957. There is a general view that the Federal Constitution came into operation through the promulgation of the Federation of Malaya Independence Order in Council 1957 (hereinafter ‘FMI Order in Council’).Footnote 86 Under this view, since the British Parliament was the source of authority for the FMI Order in Council, it follows that there was still constitutional continuity between the post-independence Federation of Malaya and the United Kingdom. This was a conundrum that similarly afflicted other territories formerly belonging to the British Empire.Footnote 87
Fortunately, such a view turns out to be premature when one scrutinises the backdrop against which the Federal Constitution was established. The constitutional position that Malaya occupied in 1957 was a midway between the positions of Australia in 1901Footnote 88 and India in 1949.Footnote 89 The status of Australia as an autonomous but not autochthonous nationFootnote 90 stemmed from the fact that it was the British Parliament which enacted the Australian Constitution, and that the provisions of the Australian Constitution can be identified exhaustively by reference to the enactments of the British Parliament.Footnote 91 Australia is therefore an example of a constitutional system which did not experience a Kelsenian legal ‘revolution’, yet is nevertheless a ‘completely independent sovereign nation’ by virtue of the political acceptance of the constitution by its people.Footnote 92
At the other end of the spectrum, the establishment of the Indian Constitution can be said to have severed all ties between the Indian and British constitutional systems. The Indian Constituent Assembly which was tasked with drafting the Indian Constitution made sure that India's independence could not be traced to the Indian Independence Act 1947 (hereinafter ‘IIA’)Footnote 93 by refusing to put the drafted constitution to the British Parliament to be approved, and by repealing the IIA through Article 395 of the Indian Constitution.Footnote 94
The Federation of Malaya of 1957 did not undergo the radicalism adopted by the Indian Constituent Assembly, but neither was it linked to the British Parliament the way the Australian Constitution is. While there was indeed a British Act of Parliament, an agreement between the Malay Rulers and the British Crown as well as a British Order in Council which were ‘devised to bring the [Federal Constitution] into force’,Footnote 95 neither of those played a constitutive role in the creation of the Federal Constitution.
Both the Federation of Malaya Independence Act 1957 (hereinafter ‘1957 Act’) and the Federation of Malaya Agreement 1957 (hereinafter ‘FMA 1957’) provided for the establishment of an independent and sovereign Federation,Footnote 96 but stopped short of actively giving legal effect to the Federal Constitution. Instead, both merely acknowledged that it was for the Federal Legislative Council and Councils of State to approve the forthcoming Federal Constitution.Footnote 97 On the other hand, although section 2 of the FMI Order in Council did provide for the Federal Constitution to have the force of law, the effect was at best declaratory,Footnote 98 for any such declaration was still subject to the Federal Legislative Council and the Malay States’ approval of the Federal Constitution.Footnote 99
The real turning point that brought about a change in the Grundnorm occurred when the Federal Constitution Ordinance 1957 (hereinafter ‘FC Ordinance’) and the relevant State Enactments were passed by the Federal Legislative Council and the Malay States, respectively. Unlike the 1957 Act and FMA 1957, the FC Ordinance had the particular object of ‘approv[ing] the Federal Constitution set out in the [FMA 1957]’ and of bestowing the Federal Constitution with ‘the force of law throughout the Federation’.Footnote 100 Unlike the FMI Order in Council vis-à-vis the local legislatures, the promulgation of the FC Ordinance and State Enactments was not conditional on any legal act of the British Parliament.
But this still begs the question: assuming that the FC Ordinance and State Enactments were passed in accordance with the procedural requirementsFootnote 101 provided under the FMA 1948, would this not mean that any act of the Federal Legislative Council or the Councils of State was ultimately attributable to the British Parliament?
There are grounds for arguing that in promulgating the FC Ordinance, the Federal Legislative Council had acted ultra vires of its constituent constitution.Footnote 102 At first glance, it might seem that the Federal Legislative Council's implementation of the FMA 1957 was authorised under the FMA 1948, as it involved ‘the implementing of … agreements with other countries’, in this case, the FMA 1957.Footnote 103 However, this analysis may prove superficial when one distinguishes between the external and internal sovereignty of the 1948 Federation.Footnote 104 While the Federal Legislative Council's approval of the Federal Constitution was implemented through the establishment of an external legal arrangement with a foreign power, viz the FMA 1957, the approval in fact masked the ancillary effect of bringing about a structural change to the Federation's internal constitutional arrangements, viz by making the Federal Constitution rather than a British enactment the supreme legal norm. The power to effect such a change was not provided for under the Second Schedule of the FMA 1948, and therefore fell outside the bounds of the Federal Legislative Council's powers.Footnote 105 A legal revolution – even if an unassuming one – had therefore occurred.
Since the legal validity of the Federal Constitution was dependent on the validity of both the FC Ordinance and the State Enactments, it matters not that the preceding analysis does not apply to the Enactments of the Malay States.Footnote 106 That the FC Ordinance's subject matter – the creation of an internally supreme constitutional authority in the form of the Federal Constitution – was not authorised by the FMA 1948 was sufficient to establish that the validity of the Federal Constitution was no longer traceable to the hitherto reigning Grundnorm of ‘one ought to obey whatever the Crown in Parliament enacts’.
Also of aid here is Kelsen's stipulation of ‘by and large’ effectiveness as a necessary but insufficient factor in determining a legal system's Grundnorm.Footnote 107 Briefly, ‘effectiveness’ is assessed via factors such as the extent to which the legal order is obeyed and is considered to be ‘valid and binding by the citizenry’; and whether the citizens of the system consider their relationships to be governed by ‘legal duties, legal rights, and legal responsibilities’ rather than ‘power relations’.Footnote 108 While the effectiveness of a legal order is not the sole criterion for ascertaining the source of authority of a legal system,Footnote 109 it is nonetheless important because a legal order that ceases to be effective would no longer be considered valid.Footnote 110 In this case, no participant of the Malaysian legal system subscribes to the presupposition that ‘one ought to obey the prescriptions of the Crown in Parliament’. Anyone wishing to argue that no clean ‘break’ from the British constitutional system occurred in 1957 would have difficulty proving that an effective legal order could result from such a presupposition, seeing as the British Parliament is evidently not recognised as a source of legal legitimacy in Malaysia post-Independence.
The Malay states:Footnote 111 The comparisons made between enactments of the British Parliament and the Federal Constitution in the preceding analysis are premised on the assumption that there had been a Kelsenian ‘revolution’ during the British colonial rule in Malaya. Otherwise, the prescription of the Malayan Grundnorm before 1957 would have stipulated that one ought to obey the prescriptions of the superior legal norm which had been in place before the British arrived.Footnote 112 Surprisingly perhaps, when examined from Kelsenian lens, the real turning point for when the Grundnorm changed was not the point when the system of ‘indirect rule’ was implemented via the introduction of Residents and British Advisors in the Federated and Unfederated Malay States (hereinafter ‘FMS’ and ‘UMS’),Footnote 113 respectively, but when the Malayan Union was created in 1946 via the Malayan Union Order in Council (hereinafter ‘MU Order in Council’).
Prior to the creation of the Malayan Union, the supreme legal norm of the Malay States was either the state constitution (Johor and Terengganu) or the autocracy of the Malay Ruler.Footnote 114 This had remained unchanged throughout events such as the signing of the treaties between the Malay Rulers and the British, or the introduction of a Federal Council in the FMS via the Federal Council Agreement 1909, seeing as all these acts were authorised by the Malay Rulers or the state constitutions.Footnote 115 By contrast, the relocation of the supreme legal norm to the British Parliament in 1946 was unauthorised because (a) the MU Order in Council was authorised by the FJAFootnote 116 rather than the MacMichael Treaties signed between the Malay Rulers and Sir Harold MacMichael on behalf of the British Crown;Footnote 117 and (b) the Malay Rulers’ act of entering into the treaties contradicted the prevailing supreme legal norm:Footnote 118 the handing over of state sovereignty to a foreign power and doing so without the approval of the State Council violated both the state constitutionsFootnote 119 and the autocratic Malay Rulers’ axiomatic set of powers that characterised their supreme status.Footnote 120
Penang and Malacca: Penang experienced a constitutional ‘revolution’ when the Charter of Justice of 1807 (hereinafter ‘First Charter’), which was created by way of the Letters Patent of 25 March 1807,Footnote 121 introduced English law to Penang.Footnote 122 This view is applicable regardless of whether one considers Penang to be a terra nullius or a territory subject to the Malay laws of Kedah prior to the enactment of the First Charter.Footnote 123 Letters Patent were, and still are, issued by the British Crown under the Royal Prerogative,Footnote 124 specifically under its prerogative executive powers.Footnote 125
However, a change in Grundnorm occurred in the period of 1825–1826 when the Charter of Justice of 1826 (hereinafter ‘Second Charter’) was enacted to create the Straits Settlement.Footnote 126 Unlike the First Charter, the Second Charter was issued pursuant to a parliamentary act, Act 6, Geo IV, c 85, s 21,Footnote 127 which granted the Crown the power to make arrangements for the legal administration of the Straits Settlement by the Letters Patent of 27 November 1826.Footnote 128 For Penang, the Grundnorm was no longer ‘one ought to obey the prescriptions of the Royal Prerogative’ but ‘one ought to obey the prescriptions of laws enacted by the Crown in Parliament’.Footnote 129 For Malacca, this was one of the many changes in Grundnorm that it had experienced at the time, as a result of its having been colonised by the Portuguese and the DutchFootnote 130 prior to the arrival of the British.
Subsequently, this Grundnorm had remained unchanged across events such as the transformation of Penang and Malacca into Crown ColoniesFootnote 131 when the governance of the Straits Settlement was transferred from the Bengal Presidency in Fort William to the British Colonial Office in 1867,Footnote 132 the abolition of the Straits Settlement in 1946,Footnote 133 and the induction of Penang and Malacca into the FMA 1948.
Sabah and Sarawak: In the case of Sabah (then known as North Borneo), prior to the involvement of the British Government, the control of North Borneo changed hands frequently, from the Brunei Malay Rulerate to the Sulu Malay Rulerate, the British East India Company,Footnote 134 an American Consul, the American Trading Company of Borneo, an Austro-Hungarian Consul, the British North Borneo Company and to the Japanese during its brief period of occupation.Footnote 135 The change in the Grundnorm of the North Borneon legal system to ‘one ought to obey the prescriptions of the Royal Prerogative’ occurred with the issuance of the North Borneo Cession Order in Council 1946, which provided for the annexation of North Borneo to the United Kingdom;Footnote 136 and of the North Borneo Letters Patent 1946, which provided for the establishment of an Executive Council and a Legislative Council.Footnote 137
In the case of Sarawak, the supreme legal norm of the Sarawak legal system became located with the British CrownFootnote 138 when Sarawak became a Crown Colony in 1946 as a result of the Sarawak Cession Order in Council 1946.Footnote 139 Subsequently, the Sarawak (Constitution) Order in Council 1956 established its Executive and Legislative Councils.Footnote 140
The post-independence period
For both North Borneo and Sarawak, their joining of the Federation of Malaya to form Malaysia in 1963 resulted in yet another change of their Grundnorm. The formation of Malaysia was effected locally via an amendment of the Federal Constitution of Malaya through the Federation of Malaya Act of Parliament No 26/1963 (hereinafter ‘Malaysia Act’). With regard to North Borneo and Sarawak, because no provision on independence was provided in the Letters Patent and Orders in Council for North Borneo and Sarawak, and the Malaysia Act had not been authorised by either of those instruments, the establishment of the Federal Constitution of Malaysia can be said to constitute a ‘revolution’ that breached the Royal Prerogative.
On the other hand, from the point of view of the Federation of Malaya, the replacement of the Federal Constitution of Malaya with the Federal Constitution of Malaysia in 1963 was not a ‘revolution’ because the promulgation of the Malaysia Act was authorised under the Federal Constitution of Malaya. While it technically follows that the present Grundnorm of the Malaysian legal system should be expressed as ‘one ought to obey the Federal Constitution of Malaya’, this formulation is unnecessarily confusing, not to mention politically misleading and incendiary, as it can distort what is in essence a semantic technicality into divisive propaganda. Since the Federal Constitution of Malaysia is an iteration of the Federal Constitution of Malaya, it would not be wrong to refer to both generally as the ‘Federal Constitution’, such that the Grundnorm of present-day Malaysia can be expressed as ‘one ought to obey the prescriptions of the Federal Constitution’.
Significance of the Grundnorm
The above sketch demonstrates how the Grundnorm enables the legal scientist to canvass the landscape of Malaysian legal history for important constitutional turning points which bear on legal norm validity. The abstracted and schematic way in which Kelsen's Pure Theory conceptualises legal validity as well as elucidates the nature of the interaction of norms in the Malaysian legal system allows the legal scientist to efficiently identify the structure of the legal hierarchy at any given point in time. This is especially useful when the constitutional developments and changes are subtle rather than overt.
However, because the application of these criteria is apolitical and amoral, caution should be exercised in any attempt to divine extralegal insights from the Grundnorm. The labelling of historically first constitutions as the supreme positive norm of the legal order sheds no light on how democratic the system is,Footnote 141 nor on where the real allegiance of the people lies. Other limits of Kelsen's Pure Theory will be further examined next.
Normativity in the Pure Theory
While the utility of Kelsen's Pure Theory in ascertaining the legal validity of any particular rule at any particular point in time cannot be denied, reservations should be had on the ability of the Pure Theory to provide genuine normative guidance on constitutional questions involving the meaning and content of legal norms.
The casual observer, in pronouncing that one ‘ought to’ comply with the prescriptions of the constitution, attributes to the Federal Constitution a moralising role that colours the workings of the constitutional machinery.Footnote 142 Such a view of the Federal Constitution is neither completely correct nor entirely false when assessed through the lens of the Pure Theory. From the perspective of legal purity, obligations are not valid by virtue of their moral impetus since validity is determined by legal authorisation. However, this does not mean that the Pure Theory conceptualises legal norms as descriptive objects that lack normative force. Rather, the Pure Theory embodies what can be called a ‘conditional normativity’, under which justified binding obligations can be created provided that a certain attitude is adopted. This form of normativity, however, falls short in providing useful insights when it is the individual legal norm rather than the legal order that is being scrutinised. In other words, the Pure Theory cannot help shed light on conflicts involving the ‘essence and meaning’ of the Federal Constitution.Footnote 143
What Normativity Is and Is Not in the Pure Theory
It is easy to mistake the Pure Theory's lack of an ontological explanation for the legitimacy of the Federal Constitution for normative deficiency. Bindreiter, for example, blithely summarises the presuppositional logic of the Grundnorm as ‘because the basic norm says so’.Footnote 144 In Kelsen's own example, the notion that a child ought to obey their parents is justified by the notion that God has commanded ‘Obey Your Parents’, which in turn relies on the presupposition that ‘one ought to obey the commands of God’. Yet, no further justification is provided for why the commands of God should be obeyed. The Grundnorm in effect rules by fiat since it cannot be questioned.
However, to adopt such a view is to misunderstand how normativity features in Kelsen's theory. For Kelsen, it is only when one accepts and endorses the point of view prescribed by a Grundnorm that a legal norm deriving from the Grundnorm gains a reason-giving character, thereby generating an ‘ought’ obligation.Footnote 145 Whether a norm (legal, religious or otherwise) is normative in the Kelsenian sense of being ‘a justified demand on practical deliberation’Footnote 146 is therefore conditional upon the kind of Grundnorm presupposed by the legal actor (if at all).Footnote 147 The Grundnorm acts as a calibration tool that structures the point of view from which positive norms are interpreted,Footnote 148 and helps distinguish the point of view of the legal actorFootnote 149 from that of, for example, a priest.Footnote 150
As such, the Grundnorm's normativity takes the form of a methodological,Footnote 151 Archimedean clarification of the manner in which norm validity is contingent on the chosen point of view. In the context of the Federal Constitution, if the participants of the Malaysian legal system wish for the content of the Federal Constitution to generate valid and binding legal obligations for which coercive force will be imposed for non-compliance, then it is a ‘transcendental-logical condition’Footnote 152 that the presupposition ‘one ought to obey the prescriptions of the Federal Constitution’ must be accepted by those participants. Questions such as whether the Federal Constitution should create binding obligations or what kind of content should the Federal Constitution have are a function of ‘ethical-political’Footnote 153 theory and therefore have no place in the Pure Theory. As will be further elaborated next, a strict subscription to this form of legal purity could have the undesirable effect of restricting the interpretation of norm content by the courts.
What Kelsenian Normativity Fails to Do
The Pure Theory succeeds in introducing scientific rigour and discipline into the law, but fails to provide much-needed guidance where logical tracing and reasoning alone yield no illuminating outcome. Yet, it is precisely this kind of guidance that is required in the contentious debate on whether there is a place for the ‘basic structure’ doctrine in Malaysian constitutional law.
The basic structure doctrine provides that those features of a constitution which are central to the ‘identity of the Constitution’Footnote 154 – for example the provisions on human rights – are so fundamental such that these features cannot be abrogated even by way of an amendment procedure provided in the constitution itself.Footnote 155 The doctrine implicitly imposes a limitation on the subject matter that can be done away with, notwithstanding that the constitution itself is entirely silent on the matter. The basic structure doctrine generally suffers from a greater degree of controversy because unlike the explicit entrenchment provisions of the constitution, the implicitly entrenched constitutional principles are ‘judicially derived from the constitutional text and structure’.Footnote 156
In the past decade, the Malaysian judiciary has been embarking on a steady pro-basic structure doctrine trajectory, gradually fleshing out the role of the basic structure doctrine as a vanguard against legislative and executive dominance. These arguments often turn on an interpretation of Article 121(1) of the Federal Constitution that reads down an attempted circumscription of judicial autonomy via a legal amendment to the Federal Constitution in 1988.Footnote 157 While in the last decade the Federal Court in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat,Footnote 158 Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak Footnote 159 and Alma Nudo Atenza v Public Prosecutor Footnote 160 adopted a non-literal understanding of the provision by invoking the basic structure doctrine and by citing the importance of preserving a constitutional separation of powers, that momentum was to some extent derailed by the Federal Court's judgements in Maria Chin Abdullah v Ketua Pengarah Imigresen,Footnote 161 Rovin Joty a/l Kodeeswaran v Lembaga Pencegahan Jenayah Footnote 162 and Zaidi bin Kanapiah.Footnote 163 In the latter cases, the Federal Court rejected the applicability of the basic structure doctrine and declared Article 121(1) of the Federal Constitution to have the effect of subordinating the powers and jurisdiction of the judiciary to the laws enacted by the legislature.Footnote 164
Conditions of legal validity
Because of the Pure Theory's preoccupation with conditional normativity, when the basic structure doctrine controversy is pixelated into its core constituent components, it is the aspect of the legal validity of the post-amendment Article 121(1) that the Pure Theory is most concerned with. From a Kelsenian perspective, the post-amendment Article 121(1) would be unauthorised – and thus invalid – if its creation was tainted with procedural or substantive ultra vires.Footnote 165 Proponents of the basic structure doctrine would argue that constitutional amendments effected through legal norms that violate the basic structure of the Federal Constitution (such as the Constitution (Amendment) Act 1988 (hereinafter ‘Act A704’)) exceed the scope of authorisation of the Federal Constitution and therefore lack validity. On the other hand, also by using the Pure Theory, opponents of the basic structure doctrine can argue that the amended Article 121(1) was constitutionally valid because the relevant amending legislation – Act A704 – was correctly derived from the Federal Constitution in the prescribed ‘manner and form’.Footnote 166
However, it is this very neutrality that renders the Pure Theory inadequate in helping us resolve the basic structure doctrine controversy. For one, the Pure Theory does not consider invalid amendments as inherently ‘bad’ or problematic.Footnote 167 Rather, this unauthorised new norm, for example the principle of parliamentary supremacy,Footnote 168 would dethrone the Federal Constitution from the apex of the Malaysian legal system's chain of legal norms and create a new legal reality where the supreme legal norm is no longer the Federal Constitution but the enactments of the Malaysian Parliament. Under this view, the 1988 amendment would, in effect, amount to a legal coup. The basic structure doctrine's blasé attitude towards constitutional revolutions is inherently at odds with the judiciary's attempt to resolve the controversy without sacrificing the Federal Constitution's constitutional supremacy, as even opponents of the doctrine do not advocate for a constitutional revolution.Footnote 169
The assessment of hierarchical inter-norm conflicts, which is the concern of the Pure Theory, misses the heart of the basic structure doctrine debate: the real conflict, which is located within the same legal norm (the Federal Constitution),Footnote 170 involves a clash between a provision asserting the constitutional supremacy of the Federal Constitution (Article 4(1)) and, on the other hand, a provision (Article 121(1)) which when taken literally would allow for Article 4(1) to be abrogated.Footnote 171 It thus becomes clear that the difficulty in the controversy lies not merely in asking whether the enacted norm is procedurally and/or substantively intra vires (which is the focus of the Pure Theory), but more crucially in ascertaining the very criteria which the norm must abide by in order to be intra vires:Footnote 172 for example, has the promulgated norm exceeded the scope of its legal authorisation if it has the effect of limiting the sovereignty or altering the fundamental characteristics of the empowering norm?Footnote 173
The interpretative perspective
Even if one were to characterise the basic structure doctrine debate as involving a conflict of views as to how particular constitutional values are mediated and circumscribed by the text of the Federal Constitution,Footnote 174 the Pure Theory's normative agnosticismFootnote 175 similarly offers little insight into how these interpretative differences can be resolved. Under Kelsen's own ‘theory’ of interpretationFootnote 176 as elucidated in The Pure Theory of Law, Kelsen wore the hat of an interpretative skeptic who, much like the moral skeptic who asserts that there are no ‘determinately correct’ answers to moral questions,Footnote 177 believed that methods and techniques of interpretation can never lead to one correct answer.Footnote 178 Instead, Kelsen described the act of interpretation as an exercise in discovering the ‘frame within which several applications are possible’;Footnote 179 a frame which is open-ended in nature and has the capacity to admit different outcomes of interpretation, all with equal standing and value.Footnote 180 For Kelsen, the act of selecting the ‘correct’ interpretation falls under the domain of legal policy (which can be rife with norms of morality and justice)Footnote 181 rather than legal theory (which, under the dictates of the Pure Theory, is strictly formal and legal in nature), and as such he did not delve into the method of selecting the right choice from the different possible available interpretations.Footnote 182 By contrast, a Dworkinian judge who desires to preserve the constitutionalist values that form part of the basic structure doctrine would either adopt the pre-amendment meaning of Article 121(1) notwithstanding the amendments made in 1988,Footnote 183 or strike down the 1988 amendment entirely and restore the pre-amendment language of the article on the basis that the amendment was unauthorised and invalid.Footnote 184
The inability of Kelsen's methodologically formal theory to break the constitutional impasse of the basic structure doctrine debate necessarily means that guidance needs to be sought from other legal theories if one genuinely intends to ascertain the likely, if not ‘right’, answer to the debate. To languish in the open-ended theorising of normative possibilities, while intellectually tempting, is nevertheless ‘methodologically nihilistic’Footnote 185 and practically sterile, for it does nothing to guide the courts and constitutional theorists on how, if at all, the basic structure doctrine in Malaysia should be applied and developed.
It is therefore clear to us that although Kelsen's Grundnorm is helpful in illuminating the supreme nature of the Federal Constitution and facilitating the ascertainment of the legal validity of positive norms, this must not be taken as a dispensation for a wholesale subscription to the Pure Theory as the jurisprudential basis which best (or even adequately) describes the Malaysian constitutional landscape. The Pure Theory's aim to merely ‘depict the law as it is’Footnote 186 without wishing to pronounce on its merits impedes its ability to serve as a comprehensive jurisprudential theory for the Malaysian legal system.
Concluding Thoughts
The value of legal theory lies in its ability to ‘give an effective and meaningful direction’ to the participants of a legal system.Footnote 187 While some might be inclined to believe that jurisprudential introspection is ‘boring’ and ‘achieves little’ in practice,Footnote 188 a neglect of the constitutional and jurisprudential foundations of a legal system would deprive legal participants of the ability to use ‘first principles’ to solve ‘intractable and seemingly insoluble problems’.Footnote 189
At present, Kelsen's Pure Theory, while undoubtedly useful in the ascertainment of the legal validity of the various legal norms that were present throughout Malaysia's legal history, provides little to no guidance on how conflicts relating to the meaning and content of norms can be resolved. A Grundnorm prescribing for the Federal Constitution to be obeyed draws our attention to the foundational point of the Malaysian legal system and demonstrates why, as a matter of legal science, this can generate valid and binding obligations. However, neither the Pure Theory nor the device of the Grundnorm can provide any helpful insight when a constitutional dispute is substantive rather than formal.
It is therefore imperative that wider efforts are made to expound a legal theory that can coherently and holistically account for the various features of the Malaysian legal system.Footnote 190 The existence of such a theory would provide a stable framework under which Malaysian legal jurisprudence can develop in a certain, principled, and predictable fashion. In the particular context of the basic structure doctrine, a proper legal theory would prevent the invocation of arguments from different starting points (even amongst those who arrive at the same conclusion), and instead provide a set of dynamically constant fundamental principles from which normative guidance can be supplied when constitutional conundrums arise.Footnote 191
