Dicey's postulation of Rule of Law

Rule of Law, in bahasa is 'kedaulatan undang-undang'. I will subdivide this topic into three limbs, namely :

1) Dicey's postulation of Rule of Law

2) Rule of Law in the perspective of the International Commission of Jurists as per the Delhi Declaration.

3) The application of Rule of Law in Malaysia.

Dicey's postulation of Rule of Law

Rule of Law (ROL) according to Dicey means the absolute supremacy or predominance of regular law. It excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government.

Dicey is of the idea that his Englishmen were ruled by law, and law alone without any exercise of discretionary power by the government. Thus, he said that Administrative Law does not exist in England as the Executive has no such power that needs to regulated. He also said that ROL emphasises on 'equality before the law', meaning that every single person is subject to the same law. With regards to this view of his, he criticised the French system of Droit Administratif (DA) which we have touched on in the previous posts.  This is because the French system of  DA exempts the government and public authorities from being tried by the ordinary courts, instead they are tried by the administrative tribunals.

However so, quite a number of scholars have come to the conclusion that Dicey had erred in saying as such. This is because the Crown of the UK (and thus the whole government) themselves are immune from any lawsuit. This is by way of the constitutional maxim 'the King can do no wrong'. The immunity enjoyed by the Crown was abolished only in 1947. Not only that, some of the statutes in the UK did grant the Executive discretionary powers which Dicey failed to see. There were even administrative tribunals outside of the judicial hierarchy set up to address the violated rights of the people. Besides that, Dicey saw the operation of the DA from a wrong angle, he thought that it was to protect the government and the public authorities when in essence it was actually to control their powers and act as a medium to address individuals aggrieved by their actions! Thus, Dicey's observation that there is no Administrative Law in England is described by scholars a his gravest and most unfortunate error as it does exist.

It was only after the case of Rice v Aldridge that Dicey reluctantly agreed with his fellow Englishman, Maitland that Administrative Law indeed has a place in England.

As a conclusion, Dicey's idea of ROL is that written law is the supreme law of the land. It is the standard by which every vessel of the government and public operates. There is no room for discretionary power by the government, not even a tiny speck as such power is a sign of arbitrariness. However so, he failed to see that Administrative Law has always been in England. That's about it for Dicey's postulation.