Basic structure as a means for judicial self-dealing or self-preservation? Placing Malaysia in the broader Asian context

Both the phenomenon and the study of unconstitutional constitutional amendments (UCA) have proliferated in recent years. In part, this is because constitutions today are more likely to contain eternity clauses – provisions that shield certain constitutional values, structures, or rights from amendment. Based on a study of 742 world constitutions enacted from 1789 to 2015, Yaniv Roznai showed that only 17 per cent of the world’s constitutions enacted between 1789 and 1944 had unamendable provisions. That figure rises to 27 per cent of constitutions from 1945 to 1988 and 54 percent of constitutions from 1989 to 2015.
We see this trend reflected in the post-World War II constitutions of Asia. For instance, Article 37(5) of the Indonesia Constitution (1945) prohibits amendments to ‘Provisions relating to the form of the unitary state of the Republic of Indonesia’. Section 255 of the Thai Constitution (2017) states that ‘an amendment which amounts to changing the form of the State’ is not permitted. The Constitution of Nepal (2015), meanwhile, contains an eternity clause in Article 274, which provides that the Constitution ‘shall not be amended in way that contravenes with self-rule of Nepal, sovereignty, territorial integrity and sovereignty vested in people’.