Rule of Law

The principle of the 'rule of law' can be traced back to the writings of philosophers in ancient Rome and Greece. For example, Aristotle said that 'the rule of law is preferable to that of any individual'. He argued that government by laws was superior to government by men. Basically, the rule of law embodies the basic principles of equal treatment of all people before the law, fairness and both constitutional and actual guarantees of basic human rights. It implies the supremacy of law and that all laws must conform to certain minimum standards for instance protection of civil liberties. The concept of 'rule of law' is most popularly explained by AV Dicey in his 3 postulates.

Narrow definition: The rule of law means everyone must follow the rule of the regimes.

Wider definition: The law is supreme and that all laws must conform to basic standards of human rights.

Friedrich Von Hayek

: "... stripped of all technicalities this means that government in all its action is bound by rules fixed and announced beforehand – rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one’s individual affairs on the basis of this knowledge."

AV Dicey

1) No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. The rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.

2) No man is above the law; every man and woman, whatever be his or her rank or condition; from the Prime Minister to the tax collectors, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.

3) People's rights are better protected under the Common law than under any document which purport to give rights.

Application of the concept in Malaysia

Article 4 of the FC is to establish the Constitution as the basis of the 'rule of law'

Article 8(1) & (2) advocates for equality irrespective of rank, status or gender.

Case laws:

Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187

- Raja Azlan Shah observed that 'The Constitution is not a mere collection of pious platitudes. It is the supreme law of the land embodying 3 basic concepts: fundamental rights, federal division of powers and separation among the executive, legislature and the judiciary...expressed in modern terms that we are government by laws, not men".

PP v Mohamed Ismail [1984] 2 MLJ 219

- the defendant was charged with drug trafficking punishable with life imprisonment or death under S.39B(1) of the Dangerous Drugs Act 1983. While his trial was pending, the law was amended providing a mandatory death penalty. The Public Prosecutor invited the court to impose the enhanced penalty

- The Court refused and held that the amendment could not apply to the defendant's case as it was enacted after the offence was committed.

Lee Gee Lam v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1993] 3 MLJ 265

- the order of detention stated a number of grounds on which the detainee was apprehended with the word 'or' and not 'and' in between.

- The court held that the statement of grounds in the alternative denied the detainee his constitutional right to know precisely the reason why he was being arrested.

Chai Choon Hon v Ketua Polis, Daerah Kampar [1986] 2 MLJ 203

- A condition, attached to a police permit to hold a DAP dinner, that there should only be seven speakers, was struck down because the permit already imposed a time limit, which rendered the condition unnecessary.

Whether the concept of Rule of Law is applicable in Malaysia ( Based on Dicey's 3 limbs/postulates)

The rule of law is inapplicable in Malaysia under each postulate:

1st part of the 1st Postulate

- The existence of the Internal Security Act 1960. The Act was first introduced to curb communist threat in Malaysia. The Home Minister is given the discretion to detain a person for 2 years without a trial. If the order ends, the HM can order for the person to be detained again; possibly indefinite. The Act was passed under Article 149 of the Federal Constitution which allows the passing of Acts against subversion, allowing the suspension of Article 5,9,10 and 13 relating to the citizen's rights. Persons detained under ISA are allowed to file a petition of Habeas Corpus and also to apply for judicial review. However, the judge will only see whether the order was properly served on the person and whether the order is valid or not. As long as it is properly served and the order is valid, then the court cannot question the order.

- Next, is Article 150 which allows the YDPA to proclaim emergency at the advice of the Prime Minister. During the Emergency, almost all Articles of the Federal Constitution will be suspended, meaning that the rights of the citizens can be violated. The Parliament can pass laws to restrict the rights of people even if it contradicts the Federal Constitution.

- The government can also acquire a person's property if they want to. Article 13 gives the right to own property. However, Article 13 also provides that the government can compulsorily acquire the property provided that they award reasonable compensation. The judges are not allowed to question such order.

- Parliamentary privilege is also against the 1st postulate of Dicey's. Under such privilege, the parliament has the freedom of speech, immune against civil arrest and is able to punish both members and non-members for breach of privilege and contempt of Parliament. Contempt of Parliament is hard to define as it is wide enough to include almost everything. For example, a person shouting outside the Parliament can also be punished for contempt of Parliament. If the Parliament chooses to punish a person for contempt of Parliament, the Parliament will be the one punishing the person, and can even detain him until the end of the Parliament's session. In Stockdale v Hansard, Hansard printed and published a report stating that an indecent book published by Stockdale was circulating in Newgate. Stockdale sued Hansard and won. Hansard was ordered not to pay for damages by the House and sought refuge there. Sheriff of Middlesex was sent to levy execution on Hansard's property. The House of Commons had the Sheriff arrested and imprisoned for contempt of House.

2nd part of the 1st Postulate

- The Prime Minister has wide arbitrary and discretionary power. The PM has the power to appoint the judges by advising the YDPA, choose the ministers to be in the Cabinet, sack ministers. The Cabinet is chosen by him, thus, the Parliament consists of members mostly from his party. Therefore, the PM is able to introduce new Bills that will definitely pass as laws since his political party is the majority in the Parliament. No one is able to control the PM. The PM can advise the YDPA to declare emergency and no one can question the declaration of emergency or the laws passed during the emergency. The Prime Minister also appoints the Attorney General by advising the YDPA.

- The Home Minister has the power to determine whether or not to arrest and detain a person under the Internal Security Act. No one has the power to question him. Theoretically, the HM can detain the PM, but in reality, it will never happen.

- The Attorney General has wide discretionary powers in Criminal issues. He can determine whether to prosecute a person or not in criminal matters and nobody can question his decision. Such discretionary powers will lead to injustice especially if he chooses not to prosecute an actual criminal.

- The YDPA has the power to pardon offenders and no one is able to question his authority in pardoning offenders.

- The Police in Malaysia through the Police Act has wide discretionary powers. Police officers can determine whether or not to arrest a person. They have absolute discretion on whether to give permits to assemblies. The Courts can quash the decision of the police if there is an error in the procedure of applying for the licence in the part of the police. However, after the Judicial Crisis of 1988, the court's judicial review is very slow. The Police can also choose to stop any car and to hold roadblocks.

- The Immigration department has the power to choose whether or not to give out passports. After the judicial crisis, the judges do not question the decisions anymore.

2nd Postulate

- The YDPA and the Sultans are not subjected to the ordinary courts, but a special court is set for them. After the 1993 constitutional crisis, the Sultans are no longer immune.

- The soldiers are also not subjected to the ordinary courts but the Court-martial. They are subjected to more laws as compared to regular citizens.

- The foreign diplomats in Malaysia are above the law; they cannot be charged for any crime committed in Malaysia.

- The judges are also free from certain laws when they are sitting in the court.

- The court system in Malaysia is also not in accordance with the rule of law since there is the Syariah Court system and the ordinary court system. The Syariah court only deals with Islamic matters pertaining to Muslims. In order to uphold the rule of law, a country cannot have 2 different court systems.

- Administrative Tribunals are also against the 2nd postulate. The tribunals deals with certain issues and they are not part of the courts(judiciary). They belong to the executive branch.

3rd Postulate

- The courts are supposed to uphold the rights of persons. The Federal Constitution does not ensure that the judges can play their roles properly; it is up to the judges themselves. The best way to ensure that rights are protected is to have a document giving positive rights and also judges that are willing to protect the rights of the people.

Joseph Raz's 8 Principles on the Rule of Law and its application in Malaysia(Briefly)

1)All laws must be prospective, open and clear

- Judicial decisions are generally retrospective in nature, because the judges' decision is only arrived at after a case has been brought to court. A person might commit a crime non-existent before the judge's decision and yet punished for it like in the case of Shaw v DPP

Shaw v DPP

- The defendant published a booklet called Ladies' Directory advertising the names and addresses of prostitutes. Shaw was convicted on a charge of corrupting public morality even though such offence was not existent at the time he published the booklet.

2)All law must be stable and not constantly changed.

- In Malaysia, the laws are not stable since the constitution has been amended at least 650 times since Independence. In US, the constitution has only been amended 8 times in 90 years.

3) Law-making process must be open, stable and clear.

- In Malaysia, the Parliament is controlled by the Executive. The Bills passed are not properly debated since the PM can use the party whip to ensure that Bills go through.

4) Judiciary must be independent.

- The 1988 Judicial Crisis clearly shows that the judiciary isn't independent since the PM was able to sack the Chief Justice Tun Salleh Abas and 2 other judges. Ever since the crisis, the constitution has been amended to divest the judges of 'the judicial power of the federation' and to grant them 'judicial powers' as Parliament might grant them. Thus, the Constitution does not protect the judges.

5) Natural justice must be observed

- Nemo iudex/judex in causa sua ( No one should be a judge in their own cause)

- Audi Alteram Partem (Hear the other party)

6) Courts must carry out judicial review.

- The Constitution is silent on Judicial Review, even more since the Judicial Crisis of 1988.

7) Courts must be easily accessible

- The courts are too expensive, slow and the cases get delayed( up to many years)

8) Crime prevention agencies must not have too wide discretionary powers.

- Too many discretionary powers are given under the Police Act 1967, i.e. power to grant permits, hold roadblocks,etc