The real roots of judicial power in Malaysia
In the English legal tradition, judicial power is understood as the authority of courts to adjudicate disputes, interpret statutes and common law, and provide remedies. It includes the power to review executive actions for legality and, in some cases, to develop the common law through precedent.
However, English courts do not possess the authority to strike down legislation—a limitation that distinguishes their role from that of courts in constitutional democracies like Malaysia.
Malaysia's judiciary, while inheriting many functions from the English system, is constitutionally empowered to go further.
Our courts do not only interpret and apply the law but also possess the authority to invalidate legislation, constitutional amendments, or executive actions that contravene the Federal Constitution.
This power is not derived from Article 4(1) or Article 121(1) alone, but fundamentally from the Oath of Office taken by judges—a jurisprudential foundation that has been underdeveloped and underappreciated since independence.
Article 4(1) declares the constitution as the supreme law of the Federation. However, it does not, in itself, confer judicial power. Rather, it sets the constitutional framework within which all branches of government must operate.
The true source of judicial power lies in the solemn Oath of Office undertaken by judges, which binds them to preserve, protect and defend the constitution. This oath is not ceremonial—it is constitutional in nature and substance.
Similarly, members of the legislature and executive are also bound by their respective oaths to uphold the constitution.
When any law, amendment or executive act violates Article 4(1), it is the judiciary's constitutional duty—rooted in their oath—to strike it down. This is not judicial activism; it is judicial fidelity to constitutional supremacy.
The Federal Court's decision in Dato Yap Peng v Public Prosecutor (1987) exemplified this principle. In that case, the court struck down a legislative provision as unconstitutional, affirming its role as guardian of the constitution.
In response, Parliament amended Article 121(1) in 1988, removing the explicit vesting of judicial power in the High Courts and instead stating that courts shall have such jurisdiction and powers 'as may be conferred by or under federal law'.
This amendment was widely interpreted as a curtailment of judicial power. For over two decades, the legal community operated under the assumption that the judiciary's constitutional authority had been diminished.
Yet this interpretation overlooked a critical truth: judicial power in Malaysia does not originate from legislative grace. It is constitutionally embedded through the oath of office and the foundational structure of the constitution itself.
Calls to amend Article 121(1) to 'restore' judicial power—such as those made by a former law minister—are therefore misplaced. If the 1988 amendment was intended to strip the courts of their constitutional authority, it was a sterile move.
Judicial power, like legislative and executive power, flows from the constitution and is anchored in the oaths taken by officeholders. No statutory amendment can override that constitutional reality.
My own judicial tenure allowed me to explore and articulate what I call the 'Oath of Office Jurisprudence.'
This framework situates judicial power within the broader architecture of constitutional supremacy and the rule of law. It draws from established principles of judicial review and affirms that the judiciary's role is not to dominate, but to safeguard the constitutional order.
Unlike the 'basic structure' doctrine developed in India, which courts have used to limit parliamentary power, Malaysia's oath-based jurisprudence avoids judicial hegemony while still providing robust constitutional protection.
In my view, the use of the basic structure doctrine to challenge the constitutionality of laws which touch on shariah issues is flawed jurisprudence. In contrast, the oath of office jurisprudence offers a superior route to ensuring that constitutional functionaries and federal and state laws fall in line with the intentions of our founding fathers.
Indeed, judicial hegemony—the idea that courts should wield unchecked power—was rejected as early as the Magna Carta in 1215.
Our constitutional framers were equally cautious. They ensured that the responsibility to uphold the constitution rests not solely with the judiciary, but with all four pillars of the state: the executive, legislature, judiciary, and the Malay rulers.
My contributions to this jurisprudence, including judgments such as Aluma Mark Chinonso, have helped crystallise the parameters of judicial power consistent with the constitution.
Since 2017, a series of Federal Court decisions have reaffirmed the doctrine of constitutional supremacy, effectively burying the notion that judicial power was ever truly removed.
It is time for Malaysian jurists to invest in developing this uniquely Malaysian jurisprudence.
As the late Justice Gopal Sri Ram observed, the oath of office framework introduces a new dimension to the rule of law. It compels all branches of government to banish arbitrariness and act within constitutional bounds. It also offers a broader and more integrated foundation for constitutional review than the imported basic structure doctrine.
If embraced, this approach could restore judicial review to its rightful place—not as a 'disabled creature with a thousand tongues and no teeth', but as a principled and effective check on arbitrary power.
Doing so would strengthen the rule of law and advance the cause of social justice in Malaysia.
The views expressed are those of the writer and do not necessarily reflect those of FMT.
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