The Malaysian Bar’s International Malaysia Law Conference (“IMLC”) 2026 took place from 27 to 30 Oct 2026 at MITEC, Kuala Lumpur.
By Chong Jen Hui
Plenary Session 3 assessed how Malaysia has fared, 69 years after independence, in upholding its founding principles. Moderated by Dato’ Lim Chee Wee, Past President of the Malaysian Bar (2011–2013), the session featured a panel which the moderator aptly described as a “Galaxy of Stars”.
The moderator opened the session with a quote from the Proclamation of Independence by the late Tunku Abdul Rahman on Merdeka Day: “But while we think of the past, we look forward in faith and hope to the future; from henceforth we are masters of our destiny, and the welfare of this beloved land is our own responsibility: Let no one think we have reached the end of the road: Independence is indeed a milestone, but it is only the threshold to high endeavour-the creation of a new and sovereign State. At this solemn moment therefore I call upon you all to dedicate yourselves to the service of the new Malaya: to work and strive with hand and brain to create a new nation, inspired by the ideals of justice and liberty-a beacon of light in a disturbed and distracted world.”
The moderator invited the audience to keep two questions in mind throughout the session: first, whether Malaysia has achieved its founding principles; and second, if not, whether they were optimistic that those principles would be achieved within the next ten years.
Against this backdrop, the first speaker, Professor Dato’ Dr Gurdial Singh Nijar, President of the National Human Rights Society, identified four founding principles: constitutional supremacy; the social contract; secularism; and democracy and the rule of law, and issued a “report card” on each.
Professor Gurdial graded Malaysia’s performance on constitutional supremacy a “plus”. He observed that although the Federal Constitution appeared frail after Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187 and the 1988 amendment to Article 121 of the Federal Constitution, the balance was restored by Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333 and later Federal Court decisions, including Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Another Case [2017] 3 MLJ 561 and Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] 3 MLJ 356, which recognised an unalterable basic structure doctrine, including the judicial power under Article 4(1) of the Federal Constitution.
The social contract, which extended full citizenship to all with recognition of their languages, cultures and religions, was graded “mixed”, as it was observed that discriminatory practices persisted in areas such as granting of scholarships in education and the award of contracts.
Secularism was also graded “mixed”. Professor Gurdial referred to the Supreme Court decision in Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55 which confirmed that Malaysia was not a theocratic state notwithstanding Article 3(1) of the Federal Constitution, but conservative elements now press for Islamic tenets to be embraced.
Democracy and the rule of law were, however, graded “bad”. This is in view of the continued use of the Sedition Act 1948, section 233 of the Communications and Multimedia Act 1998, and the Security Offences (Special Measures) Act 2012, which permits the continued detention of acquitted persons pending appeal, the abolition of local government elections, and the fact that some 70% of accused persons go unrepresented.
The second speaker, Tan Sri Tommy Thomas, former Attorney General of Malaysia, lamented that the Proclamation of Independence, unlike the United States Declaration of Independence, has received little recognition. He spent his speech assessing the values it proclaimed: rights and liberties, constitutional monarchy based on parliamentary democracy, liberty and justice, and the welfare and happiness of the people.
He started his session on a positive note in respect of Malaysia’s observation of its founding principles. He observed that to Malaysia’s credit, the armed forces remained in their barracks after the 13 May Incident, and described the peaceful transfer of power in 2018 as a “high watermark”.
However, fundamental liberties suffered grave inroads by the legislature and the executive while the judiciary took a hands-off approach for decades. This was underpinned using the Internal Security Act 1960 where some 10,000 people were detained without charge, and power concentration in the Prime Minister’s office, with Operasi Lalang and the 1988 judicial crisis among the low points. In his view, the present Federal Constitution is inferior to the original version. He noted that the New Economic Policy which was implemented after the 13 May Incident, though intended to be temporary, took root in the national psyche, and contrasted this with Sabah and Sarawak, whose people have persevered in promoting diversity.
Invoking Peruvian novelist José María Arguedas’ description of Peru as a country of “all bloods”, he said that Malaysia is likewise, such a country and diversity is therefore not unique to Malaysia. He described corruption, unknown in the early years, as a “cancer”, and asked what history’s verdict would be in 2057, when Malaysia marks its centenary.
The third speaker, Tuan Zulkifli bin Hashim, Director General of the Department of National Unity and Integration, explained that his department, established in the aftermath of the May 13 Incident, is concerned with how constitutional principles translate into daily life. Although the Federal Constitution provides the framework, the Rukun Negara translates it into everyday conduct and reminds us that unity is not uniformity. He proposed assessing progress through institutional resilience, integration, and citizenship, stressing that the meaningful test is whether citizens can disagree without dehumanising one another. He cautioned against “superficial unity”, where programmes create events without creating understanding. He highlighted initiatives such as Rukun Tetangga, unity kindergartens, Kelab Rukun Negara and community mediators, and outlined five priorities: constitutional literacy; sustained interaction; early intervention and community resilience; measurable and accountable unity; and a renewed partnership between law and society.
The final speaker, Dr Tricia Yeoh, Director of the Asian Institute for Policy and Engagement at the University of Nottingham Malaysia’s School of Politics, spoke on federalism. She observed that while the Reid Commission had hoped for close federal–state cooperation, power has since been steadily centralised, through the abolition of local government elections, the transfer of water services to the Concurrent List, and the dilution of the Senate’s role as a house of the states. She noted that only 12 of 23 federal transfers to the states have a formula or legal basis, and questioned whether transfers can be “fair and reasonable” without a formula insulated from political influence, observing that increased special grants to Sabah and Sarawak had prompted Peninsular states such as Johor to seek more. Citing oil and gas revenue and the emerging rare earths sector, she asked whether the Ninth and Tenth Schedules of the Federal Constitution require review, as no single platform exists for federal-state negotiation.
The moderator directed Dr Tricia’s question to Tan Sri Tommy Thomas who opposed constitutional amendment, describing the original version as “good enough”, and said that both sides must continue to meet, although Sabah and Sarawak have a stronger basis for their demands than Peninsular states. Dr Tricia Yeoh pointed to the recent investment push by the SG4 states, namely Kedah, Kelantan, Terengganu and Perlis, as evidence that states are increasingly bypassing the Federal Government.
Asked whether the basic structure doctrine would survive the next 10 years, Professor Dato’ Dr Gurdial Singh Nijar said that the greatest threat came from within the judiciary itself, citing the criticism of the doctrine by some members of the Federal Court in Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 1 MLJ 750, and former Chief Justice Tun Abdul Hamid Mohamad’s extra-judicial view that the doctrine does not exist. Nevertheless, with Tun Tengku Maimun Tuan Mat, as Chief Justice, having anchored the doctrine in Article 4(1) of the Federal Constitution, he considered it safe for the next few years. Tan Sri Tommy Thomas observed that the doctrine is judge-made law, and what one generation of judges makes, another may revoke. The answer, he concluded, lies with the next generation of judges.
The moderator revisited the questions posed to the audience in the beginning of the session. A show of hands revealed that no one in the audience considered the founding principles achieved, although a handful of delegates were optimistic that they would be within the next 10 years.
The panel’s assessment was, on balance, a sobering one. Constitutional supremacy, buttressed by the basic structure doctrine, emerged as the clearest bright spot, although its durability rests with the judiciary. A common thread was that the founding principles are not self-sustaining: they must be renewed through the courts, institutional reform, and the everyday conduct of citizens. As the show of hands suggested, the founding principles remain unfulfilled, but not beyond reach.