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Free Malaysia Today
12 hours ago
- Politics
- Free Malaysia Today
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.
Reuters
3 days ago
- Politics
- Reuters
Slovak parliament delays vote on 'national identity' to September
June 17 (Reuters) - Lawmakers will delay to September a vote to change Slovakia's constitution to give national laws precedence over European Union and other international treaties on "national identity" issues, TASR news agency and other media reported on Tuesday. The move, announced by the ruling party's parliamentary club chief, comes with the government having so far narrowly failed to secure the three-fifths majority in parliament required to amend the constitution. Critics, including some legal experts, are concerned that the amendment pushed by the leftist-nationalist government could call into question Slovakia's commitment to EU law and international treaties. Under EU rules, EU-wide legislation takes precedence over that of member states in cases where they diverge, a principle legal experts say could be undermined in Slovakia by the proposed constitutional tweak. The change refers to matters of national identity associated with "fundamental cultural-ethical issues" touching on family life, marriage, public morality and some other areas. The amendment also states that only male and female will be recognised as genders, and that school curricula must respect the constitution, including its cultural and ethical stances. It would also tighten adoption rules. Prime Minister Robert Fico's government, which has only a slight majority in parliament, proposed the changes earlier this month, seeking to install what he called "a dam against progressivism". Fico has taken an increasingly illiberal stance on rights issues, building on his pro-Russian foreign policy. He has promoted closer relations with Russia and China and criticised EU sanctions on Moscow and EU military aid for Ukraine.
The Guardian
12-06-2025
- Politics
- The Guardian
Indigenous nation in Canada ratifies its first written constitution
After decades of colonial oppression, including the removal of children from their families, forced sterilisation and abuse in residential schools, the Heiltsuk Nation has ratified its first written constitution. Aimed at 'renewing and reclaiming ancestral laws', the document enshrines a framework in which power and decision-making is shared by hereditary leadership, the elected chief and council, and the nation's women's council
Yahoo
12-06-2025
- Politics
- Yahoo
Trump puts Marines in impossible situation with inappropriate deployment to Los Angeles
Marine corps veteran Rep. Jake Auchincloss talks with Jen Psaki about why Donald Trump's use of the U.S. military in his domestic anti-immigrant crusade and in response to protests is wildly inappropriate and contrary to the Constitution, and put U.S. Marines in an impossible position. "They swear an oath to uphold the Constitution. They also swear an oath to obey orders from the president. Right now the president is ordering them to do something that does not support the Constitution."
Washington Post
10-06-2025
- Politics
- Washington Post
Togo's president faces calls to resign after protests over new role allowing indefinite rule
LOME, Togo — Togo's President Faure Gnassingbé is facing growing pressure following a government clampdown on protests calling for his resignation over recent changes in the constitution that could effectively keep him in power indefinitely. Activists on Tuesday condemned the arrest and alleged maltreatment of dozens of people following staged protests late last week in Togo's capital, Lomé, and on social media.
