Application of Rule of Law in Malaysia

Malaysia, by virtue of Article 4 of the Federal Constitution recognises and upholds Rule of Law. It is the foundation of the Rule. From the case of Ah Thian v Government of Malaysia, LP Suffian in his judgement   observed that :

“The doctrine of Parliament does not apply in Malaysia. Here we have a written constitution. The power of Parliament and State Legislatures in Malaysia is limited by the Constitution, and they cannot pass any law as they please. Under our Constitution, written law may be invalid on one of these grounds: (1) Article 74; (2) in the case of both Federal and State written law, because it is inconsistent with the Constitution; (3) Article 75”.

The Malaysian Courts further saw to the implementation of this rule in several other cases, namely :

                                     Chai Choon Hon v Ketua Polis Daerah Kampar

A condition was attached to a police permit to hold a dinner for DAP, the condition being that there should be only 7 speakers was struck down by the Courts because the said permit has already impose a time limit, which rendered the aforementioned condition unnecessary. This decision is said to be in line with the provisions of Article 10(1)(a) of the Constitution

                                     Public Prosecutor v Mohamad Ismail

The defendant was charged for drug trafficking which was punishable with life imprisonment or death under S. 39B(1) of the Dangerous Drugs Act 1952. While his trial was still going on, the law was deliberately amended to provide for a mandatory death penalty. At the final stage of the said trial, the PP suggests to the court to impose the enhanced penalty. The Court refused saying that such amendment could not be applied to the instant case, as it was only enacted after the offence was committed. At such, the decision of the said court was in line with the Article 7(1) of the Federal Constitution and the Delhi Declaration.

So, these are examples for the application of ROL in Malaysia. Hope it helps :)

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.