When Donald J Trump attempted to unilaterally reshape global trade by unfurling sweeping trade tariffs from February 2025, the world gasped at the power of the US president.
A proud Trump trumpeted that his action was to stop exploitation by other nations and that it would boost domestic manufacturing, create jobs, and reduce the US trade deficit.
It roiled markets and rattled nations, with leaders of many affected economies rushing to Washington DC to meet him to plead for lower rates and, in the process, making all manner of promises, such as investing heavily in the US.
On Feb 20, 2026, however, the US Supreme Court struck down the tariffs that had been imposed through executive orders under the International Emergency Economic Powers Act (IEEPA) of 1977 by a 6-3 vote.
I fear the ramifications of this – including on Malaysia – may be felt for months on end.
How will the US Treasury deal with the US$133 billion it has so far collected from the imposition of Trump’s tariffs? How does this impact the legality of the trade deals signed by the US with various nations – including Malaysia – in negotiating the tariffs? How does this affect bilateral relations and regional alignments? Can anyone trust the US after this?
One thing is certain: it’s going to be messy. And it will add further uncertainty to an already unstable global scenario.
It is to be noted though that the IEEPA tariffs account for only about half of the tariffs imposed by the US.
The court ruled that Trump’s tariffs under the IEEPA had exceeded the powers given to the president by Congress under a 1977 law allowing him to regulate commerce during national emergencies created by foreign threats.
An angry Trump denounced the six judges who struck down his pet tariff project but praised the trio who backed his move.
Trump’s reaction is understandable; for the ruling was a stinging slap that resounded all over the world.
That is why, I suppose, he immediately imposed a new 10% tariff, later raised to 15%, on all countries under another law: Section 122 of the Trade Act of 1974. It won’t come as a surprise if his hurt ego goads him to medicate the judicial punch by finding other ways of imposing levies over the next few months.
There are many lessons to be learnt, for Malaysia and the rest of the world, in this debacle. I’ll focus on two.
One, there’s a need to curb executive overreach; no single leader should hold enormous power to do as he/she wishes to further his/her goal.
Two, the separation of powers between the legislature, executive and judiciary is crucial for any democracy to endure.
Chief Justice John Roberts, in delivering the majority decision, said the US Constitution “very clearly” gave Congress, not the president, the power to impose taxes, including tariffs. The court, in effect, ruled against arbitrary power in favour of constitutional rule.
Without getting into the US tariffs case, I just want to note that in any democracy it is the citizens who, theoretically at least, make decisions on their nation’s direction. They do this through their elected representatives – in the Dewan Rakyat in Malaysia and Congress in the US.
We have seen enough evidence in the world of the harm done in placing too much power in an individual, even if the initial intentions appear sanguine.
Even at home, there are those who accuse Dr Mahathir Mohamad of wielding too much power during his first 22-year stint as prime minister, leading to the clipping of freedoms and the stunting of judicial independence.
Which is why, I believe, several NGOs and individuals campaigning for human rights, have consistently called for the prime minister’s powers to be tempered.
They feel that the prime minister wields disproportionate power, as seen, for instance, in the appointment of judges, the attorney-general and the Malaysian Anti-Corruption Commission chief. All of these ultimately are appointed by the Yang di-Pertuan Agong on the advice of the prime minister.
We don’t know if future prime ministers will be like Tunku Abdul Rahman or Hussein Onn or Mahathir or Trump or Hitler. Pakatan Harapan has an opportunity to set the new framework.
It’s interesting to note that just on Jan 9, the High Court fixed April 29 for a decision on the judicial review application of lawmakers Hassan Karim and Abdul Aziz Bari to challenge former prime minister Muhyiddin Yassin’s advice to the Agong to suspend Parliament during the Covid-19 emergency period in 2021.
Justice Aliza Sulaiman also fixed the same date to decide on two originating summonses filed by the Malaysian Bar and Bersih 2.0 with seven others, which also challenge the emergency proclamation.
I’m sure many legal eagles and rights advocates will be watching this closely, as it revolves around the prime minister’s power – a single politician’s power – to decide the fate of a nation.
The fact that the US Supreme Court, which had in the past gone along with what some Americans feel is “an unbridled, ever-escalating assertion of executive power”, put its foot down is seen as showing judicial independence.
And for any nation to be called a democracy, its judiciary must be independent.
There are those who feel Malaysia’s judiciary has never fully recovered from the 1988 “constitutional crisis”, which saw the removal of Salleh Abas from his post as lord president and the suspension of five Supreme Court judges. Two of them were subsequently removed on the recommendation of a judicial tribunal.
But the judiciary gradually began gaining credibility in recent years, especially after Tengku Maimun Tuan Mat became chief justice.
However, last year, suspicions over the executive’s possible interference in the judiciary surfaced again when vacancies for top positions remained delayed.
This led to several bodies such as the Malaysian Bar Council, Transparency International-Malaysia (TI-M) and C4 Center calling for reforms to insulate the judiciary from political influence and restore public trust.
On July 2, Bar Council president Mohamad Ezri Abdul Wahab expressed serious concern over the lack of transparency and delay in appointing a successor to recently retired chief justice Maimun.
“The judiciary is not merely one of the three branches of government — it serves as the guardian of the rule of law and the final safeguard for constitutional rights. Its leadership must be treated with clarity, foresight, and respect. A seamless transition should have been assured well before the retirement of the sitting chief justice,” he said.
On July 18, TI-M president Raymon Ram said: “Judicial independence is not negotiable. It is the bedrock of a functioning democracy, the guardian of civil liberties, and the ultimate bulwark against abuse of power.”
In his paper on “Challenges to Judicial Independence in Malaysia” in April 2025, respected professor of law Shad Saleem Faruqi warned that the threats to judicial independence did not come just from the executive but also from influence-peddling lawyers, corporate figures and rightist groups.
He noted that many judges tended to interpret the separation of powers to mean that “judges should comply with and not review the will of the elected legislature. Some judges interpret the Constitution as if we have parliamentary supremacy or an absolute monarchy, or a theocratic state”.
He added: “While there has been notable progress over the past decade in upholding the autonomy of the judiciary, this is not structural. Rather, it is personalised, which makes it vulnerable to reversals. The future trajectory depends on structural reform along three axes: judicial power under Article 121(1) should be restored to its pre-1988 level; the system of appointments to the judiciary should be revised to make it more independent; and Malaysia needs to encourage civil society vigilance and constitutional literacy across all sectors of society.”
I am certain everyone would agree that judicial independence is the cornerstone of democratic governance and that the courts must remain resilient bulwarks for democracy to endure.
They would also agree on the need to ensure no branch of government – whether executive, legislative, or judicial – wields unchecked power.
The dismantling of Trump’s tariffs in the wake of the US Supreme Court ruling affords us yet another opportunity to reflect on this.
The views expressed are those of the writer and do not necessarily reflect those of FMT.