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.

Characteristics of the Droit Administratif

These are the characteristics of the DA :

1) As mentioned in my previous post, it is independent of the French Courts.

2) At first instance, if a person has a case, he will be referred to the Tribunal Des Conflicts.
The tribunal will decide whether the case should go to the ordinary courts or the administrative tribunals.
Should it be an administrative dispute, it will be adjudicated by the administrative tribunals.

Now, if he is unhappy with the decision arrived by the administrative tribunal, he can appeal to the Conseil D'Etat, The Conseil  is a very important administrative tribunal as it acts as the Court of Appeal for all other administrative tribunals regardless if they are within or not within the Conseil's control.

Should the complain concern an abuse of power by the administrative also called  as recours pour excess de pouvoir, then, the Conseil acts as the court of first instance.

3) If upon trial the administrative body is found to have acted ultra vires, then the tribunal may nullify their actions.

4) All decisions arrived by the administrative tribunals are subject to review by the Conseil on points of law.

5) Administrative tribunals also supervises administrative functioning. With regards to this, they have spelt out two limitations on administrative bodies which are :

    i. They must not act against the law and ;
   ii. They must pay damages should they cause any injury.

With regards to an action for damages, it can be granted to an individual who is injured due to an administrative action regardless if the state is at fault or not.


As a conclusion, we could say that the French DA gives significant protection to an individual against any unlawful action done by administrative bodies. Scholars have said that the DA is better than the CL as it gives better protection to an individual. Besides that, M.P Jain made fun of Dicey too in his book, HAHAHA. It's kinda long for me to explain, nyways it 's on Page 44 of his book on AL, 5th Edition I think.

Difference between the Common Law System of AL and the French System of Droit Administratif

There are quite a number of differences between the Droit Administratif (a tribunal dedicated for deciding cases between the French government and it's citizens) and the Common Law System of AL. I'd like to make a side-by-side comparison but I don't know how to do it cos I'm lame and stuff so you'll have to manually compare it. 

Differences

1) The Common Law System (CL) allows Ordinary Courts to accept appeal cases from Statutory Tribunals.   

For instance, if you're unhappy by the Income Tax Tribunal's decision, you can make an appeal at any one of the Ordinary Courts (whichever that suits your case).

                                                                         VS

The Droit Administratif (DA) is a separate tribunal.They are not part of the French Courts and are independent of them.

2) The Ordinary Courts in the CL hears all originating motions and appeals (including those from Statutory Tribunals). They 

                                                                          VS

The DA only listens to administrative-based grievances only.

3) From the case of PP v Kok Wah Kuan, the Court held that Malaysia does not practice the Doctrine of Separation of Powers strictly, I quote 

"It is common for a statute to make provision for a Minister in charge of an Act of Parliament to make rules or regulations. The Minister is an executive. Rules and Regulations and by-laws, having the effects of law, is within the realm of the legislature to make, not the executive. Yet, I am unable to find any provision in the Constitution giving power to the legislature to make law to give the power to make such by-laws to the executive. So, are the provisions in the statutes giving Ministers power to make by-laws unconstitutional too on the ground that they contravene the doctrine of separation of powers? All these show the absurdity of applying the doctrine as a provision of the Constitution." 

- PP v Kok Wah Kuan

Therefore, it is allowed for the Executive itself to have their own Statutory Tribunal, subject to the Parent Act of course, whether it allows it or not.

                                                                         VS

The separation of powers in France is very strict. This resulted in a total dependence of the administration from judicial control (Executive from Legislative). The Ordinary Courts exercise no control over administrative functioning. Thus, a person has no avenue for redress of grievances against the administration through the courts.

These are some of the differences, it may seem to overlap, but the three key differentiating factors are :

1) Whether they are independent or not CL/DA.

2) What type of cases can the Courts/Tribunals hear.

3) The operation of the CL/DA with regards to the doctrine of separation of power.

That's all for now.