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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
7 days ago
- Politics
- Reuters
US Senate Republicans seek to limit judges' power via Trump's tax-cut bill
June 13 (Reuters) - U.S. Senate Republicans have added language to President Donald Trump's massive tax and spending bill that would restrict the ability of judges to block government policies they conclude are unlawful. Text of the Republican-led U.S. Senate Judiciary Committee's contribution to the bill, opens new tab released by its chair, Senator Chuck Grassley, late on Thursday would limit the ability of judges to issue preliminary injunctions blocking federal policies unless the party suing posts a bond to cover the government's costs if the ruling is later overturned. The bond requirement in the Senate's version of the One Big Beautiful Bill Act is different from the provision the Republican-controlled House of Representatives included when it passed the bill last month that would curb courts' power in a different way. The House version curtails the ability of judges to enforce orders holding officials in contempt if they violate injunctions. Judges use contempt orders to bring parties into compliance, usually by ratcheting up measures from fines to jail time. Some judges who have blocked Trump administration actions have said officials are at risk of being held in contempt for not complying with their orders. Congressional Republicans have called for banning or curtailing nationwide injunctions blocking government policies after key parts of Trump's agenda have been stymied by such court rulings. The House in April voted 219-213 along largely party lines in favor of the No Rogue Rulings Act to do so, but the Senate has not yet taken up the measure. A White House memo in March directed heads of government agencies to request that plaintiffs post bonds if they are seeking an injunction against an agency policy. Such bonds can make obtaining an injunction a cost-prohibitive option in cases concerning multi-billion-dollar agenda items. Grassley's office said in a statement the language the Judiciary Committee proposed would ensure judges enforce an existing requirement that they make a party seeking a preliminary injunction provide a security bond to cover costs incurred by a defendant if a judge's ruling is later overturned. Judges rarely require such bonds when a lawsuit is not pitting two private parties against each other but instead challenging an alleged unlawful or unconstitutional government action. Several judges have denied the Trump administration's requests for bonds or issued nominal ones. Republicans, who control the Senate 53-47, are using complex budget rules to pass the One Big Beautiful Bill Act with a simple majority vote, rather than the 60 votes needed to advance most legislation in the 100-seat chamber. The Senate Judiciary Committee's piece of the bill would also provide the judiciary funding to study the costs to taxpayers associated with such injunctions and provide training for judges about the problems associated with them. A spokesperson for Senator Dick Durbin, the Senate Judiciary Committee's top Democrat, criticized the Republican-drafted legislative text, saying "Republicans are targeting nationwide injunctions because they're beholden to a president who is breaking the law — but the courts are not."
Washington Post
05-06-2025
- Business
- Washington Post
In their budget bill, Republicans show their contempt for courts
To find one of the most dangerous efforts by President Donald Trump and Republican leaders in Congress to trample the power of judges who stand in their way, you have to dig more than 500 pages into what they have christened, without embarrassment, the One Big Beautiful Bill. Just 57 words long, the egregious language is buried in a section titled 'Restriction on Enforcement.' It says no court 'may enforce a contempt citation for failure to comply with an injunction or temporary restraining order' unless the party bringing the case has posted a monetary bond, which rarely happens in legal actions brought against the government.
New York Times
16-05-2025
- Politics
- New York Times
The Courts' Power
Yesterday's Supreme Court hearing was ostensibly about whether President Trump can end birthright citizenship. But the arguments focused on a different issue: Can a single lower-court judge block the president's policies across the whole country? Despite precedent, the administration says no. It wants to limit the judicial branch's ability to check the president, even beyond immigration. This is not a partisan issue. Democratic politicians have also complained that lower courts have too much power. At yesterday's hearing, the justices didn't divide along ideological lines. Today's newsletter walks through the arguments around universal injunctions. What's this debate about? After Trump signed his order ending birthright citizenship, various groups sued to stop his policy. But courts can take years to go through filings, hearings and appeals. In the meantime, Trump could block tens of thousands of newborns from getting citizenship. Judges often deal with this situation by telling an administration: Don't enforce your policy until the issue has worked through the courts. And, increasingly, lower courts have applied their pauses to the whole country, not just one jurisdiction. Federal District Court judges in Maryland, Washington state and Massachusetts each stopped Trump's birthright citizenship ban nationwide. Presidents from both parties have said this process makes it too easy for random jurists to block their agendas. There are more than 600 District Court judges. With so many options, plaintiffs can almost always find a sympathetic ear. What's the fix? This question doesn't have an easy answer, and it consumed much of yesterday's hearing. The administration said courts should apply injunctions only to the individual who brought the case. So if an undocumented mother sued to stop the birthright citizenship ban, a judge could grant her child — and only her child — citizenship. That would place a huge burden on the public and the courts. Potentially millions of people would all have to hire lawyers and file lawsuits to protect their rights. A group could come together in a class-action lawsuit, but forming a class can be a time-consuming, difficult legal process. These individuals could still appeal their case to the Supreme Court, which would retain the power to impose nationwide injunctions. But only losers can appeal a case. What if the plaintiffs never lose in lower courts? (So far, the birthright citizenship plaintiffs haven't.) An administration could choose not to appeal — to avoid setting a precedent it doesn't like and to keep the burden on individuals. The justices could compromise. One suggestion is to limit universal injunctions to specific circumstances, such as when a case involves constitutional questions (as opposed to, say, disputes about how to interpret a regulation). Some lawmakers called for letting only three-judge panels impose universal injunctions. What's next? The Supreme Court will likely rule in a month or two. If the justices decide against Trump, the injunction on his birthright citizenship ban will remain. If the court rules in his favor, it could empower him to carry out his agenda, on immigration and other issues, with fewer obstacles. For more: The Times is tracking this year's major Supreme Court decisions. Officials from Russia and Ukraine are expected to meet today to discuss the possibility of a cease-fire. Anton Troianovski, The Times's Moscow bureau chief, explains the stakes. Trump has not delivered the quick peace in Ukraine that he promised on the campaign trail. But neither has he sold the country out to Russia, as experts feared he might do after several warm chats with and about Vladimir Putin. Today, pushed by Trump, negotiators from Kyiv and Moscow are set to meet in Turkey — in what would be the first time they've faced each other publicly since the spring of 2022. Here's what to know. What's on the table? Ukraine wants a 30-day cease-fire and an exchange of prisoners. Russia wants concessions before it stops fighting. In 2022, the two sides drafted a peace agreement that would bar Ukraine from joining NATO. But Russia wanted more, such as making Russian an official language in Ukraine; Volodymyr Zelensky refused. His negotiating position is weaker now: Trump doesn't see Ukraine's fight as a core American interest, while Russia's military has recovered from the disastrous early weeks of its invasion. How aligned are Trump and Putin? Trump repeats pro-Russian talking points, such as the falsehood that Ukraine started the war. But he hasn't tipped the scales yet. Putin wants Ukraine to cede a large swath of territory it still controls — and to cap the future size of its military. The Trump administration has refused to go along. Still, it remains possible that Trump will cut a deal with Putin over Ukraine's head; he predicted yesterday that 'nothing's going to happen until Putin and I get together.' How do Trump and Zelensky stand now? In February, Trump berated Zelensky in front of the press during a meeting in the Oval Office. But the two men seem to have patched things up. They had a drama-free meeting at the funeral of Pope Francis in April. Days later, Ukraine signed a deal giving the United States control over a share of its future mining revenue. At the same time, Trump is losing patience with Putin. The Russian leader has talked to Trump twice on the phone since February and held four hourslong meetings with Steve Witkoff, Trump's envoy and close friend. Yet Russia hasn't budged from demands that even Trump aides see as delusional. New Jersey Transit Trump's Middle East Trip More on Politics Israel-Hamas War More International News Other Big Stories Yesterday, the world learned about KJ Muldoon, an infant in Pennsylvania, the first patient to be saved by a new treatment: Doctors edited his DNA to correct a liver disorder. We've heard of gene therapy before — to fight sickle-cell anemia and cancer, for instance. How is this different? I asked Gina Kolata, the science reporter who broke the story. — Adam B. Kushner What's new here? Other treatments don't fix your broken DNA. We deal with sickle-cell anemia by adding good genes, but the mutated ones are still there. Same with hemophilia. We can coach your immune system to attack some cancers' specific DNA. But doctors actually edited KJ's genome to correct bad spelling. Now, his liver can process the ammonia that comes from digesting protein. Eating normal food won't kill him. They injected a lipid that brought the molecular-editing machinery to his liver. Does that mean the gene mutation in each of his liver cells is now fixed? Probably not, though we don't actually know! Doctors didn't want to do an invasive biopsy to find out, but they can tell that he's processing ammonia properly now, and that's good enough. Anyway, you don't have to fix every single cell — only enough to get the job done. Protecting public lands from urban development also protects America's hiking trails, biological diversity and Indigenous inhabitants, Michelle Nijhuis writes. Here are columns by Michelle Goldberg on Joe Biden's competence crisis and David Brooks on the difficulties of college students. Dazzled: People are obsessed with teamLab's immersive art exhibitions. Travel: In the U.S., heightened immigration fears have made planning an international honeymoon unexpectedly complicated. Surprise: Harvard Law School paid $27 for what officials thought was a copy of Magna Carta. Turns out it was an original. Your pick: The Morning's most-clicked link yesterday was about an art auction at Sotheby's that flopped. Trending online yesterday: People were searching for information about extreme weather in Michigan. Lives Lived: Charles Strouse was an accidental Broadway composer but one of the most prolific and honored, with hits like 'Annie' and 'Bye Bye Birdie,' earning him three Tony Awards. He also won a Grammy and an Emmy. He died at 96. W.N.B.A.: An important season begins tonight. Caitlin Clark and other stars are set to break ratings records. N.B.A.: The Nuggets beat the Thunder to force a Game 7 in their second-round series. The internet can be weird and confusing. We asked readers what they wanted to know about strange things online. For each of the next few weeks, The Times's internet culture reporter, Madison Malone Kircher, will answer one question. A reader from New Orleans asked: Is there any way to distinguish between authentic trends and those cooked up by companies or bots? A few years ago, an internet comedian named Sebastian Durfee started making videos to denounce the Porcelain Challenge, a phenomenon in which young people were supposedly grinding up fine china and snorting them like cocaine. Except nobody was actually doing that. Durfee was satirizing the way trends proliferate online with a fake challenge that he said was meant to be 'easily debunked.' Sometimes it isn't that easy. To spot a bogus trend, think about whether it is ridiculous or inflammatory. Then, see if you can locate the source: Has it been covered by a trusted personality or news organization? Can you find the first video ever posted about the trend? (On TikTok, you can click on a particular sound clip and the app will show you the first video to use the audio. This can help, though it's not foolproof.) Does the source appear to be a regular person who just happened to go viral? When a catchy song about a little orange fish became inescapable earlier this spring, you could trace it back to a French duo. Brands participate in memes, but often ones that are falling out of vogue. Nothing sucks the fun out of a shared online experience like a company glomming onto it for profit. The same is true of reporters who explain online trends. I'm not innocent here! More on culture Layer jammy strawberries over this unfussy cake. Spend 36 hours in Rome. Take our news quiz. Here is today's Spelling Bee. Yesterday's pangrams were checkmate and matchmake. And here are today's Mini Crossword, Wordle, Connections, Sports Connections and Strands. Note: Wednesday's Spelling Bee was intended to have three pangrams. Because of a bug, only two, pinhead and pinheaded, made it into the live version. Headpin was omitted. Since a fix would erase players' progress, New York Times Games has opted to leave the puzzle and grid as is. Thanks for spending part of your morning with The Times. See you tomorrow. Sign up here to get this newsletter in your inbox. Reach our team at themorning@
Washington Post
15-05-2025
- Politics
- Washington Post
Supreme Court grapples with nationwide orders blocking birthright citizenship ban
The Supreme Court appeared divided Thursday about whether to scale back nationwide orders that have blocked President Donald Trump's ban on birthright citizenship, in a case with implications for judicial power and what it means to be an American. After more than two hours of oral argument, it was unclear how the high court would resolve the issue, with liberal justices asserting that Trump's order to deny automatic citizenship for U.S.-born babies is at odds with more than a hundred years of Supreme Court precedent.
