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The German Eternity Clause, Hans Kelsen and The Malaysian Basic Structure Doctrine | Monika Polzin

Monika Polzin examines the recent use of comparative constitutional law by the Malaysian Federal Court in justifying on the existence of the basic structure doctrine in the Malaysian Constitution in The German Eternity Clause, Hans Kelsen and the Malaysian Basic Structure Doctrine. The author begins with a brief history, stating that unlike India, Malaysian courts had never annulled constitutional amendments on the grounds of basic structure doctrine. However, recent rulings, relying upon the ideas of Hans Kelsen and the German Constitution, expressly support the usage of the doctrine to annul amendments, and extend the reading of constitutional supremacy provided under Article 4(1). However, the author asserts that these are weak justifications, and difficult to reconcile with the abstract understanding of the Federal Court that all constitutions require limits on amendments. Finally, the author looks into problems with this approach, concluding that while the basic structure doctrine should be employed only within a democratic and liberal constitution, the recent ruling is an excellent example of international constitutional dialogue.


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