Rule of Law in Malaysia and UK PDF

Preview

Summary

Critical evaluation on whether the doctrine of Rule of Law is applicable in Malaysia and the UK today....

Description

Critically evaluate whether this doctrine is applicable in Malaysia and the UK today. In Malaysia, when we are addressing the concept of rule of law, we can always make direct reference to the provisions provided in Article 4 under Federal Constitutiom, where the purpose of the constitution is to set a foundation for ‘rule of law’. The relevant case can be seen from of Loh Kooi Choon v Government of Malaysia [1977] where the federal court judge, Raja Azlan Shah, stated 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.” It is clear that the rule of law is part and parcel of the Malaysian constitution. The doctrine of rule of law is well represented in the case of Public Prosecutor v Mohamed Ismail where the defendant was charged with the offence of dangerous drug trafficking and he was punishable with life imprisonment or deather under section 39B(1) of the Dangerous Drugs Act 1952. However, the law was substantially amended to provide mandatory death sentence while the defendant’s trial was still pending. During the final stage of the trial, the prosecutor had suggested to the court that the newly amended law of death penalty should be implemented in this case. The court refused to the request and held that the amendment could not be applied in that case. The court reasoned that the amendment was enacted after the offence was committed. Thus, the court’s decision was considered in line with Article 7(1) of the Federal Constitution. This case had fulfill the concept of rule of law by AV Dicey where no one should be punished except for a conduct which represents a clear breach of law.

Dicey’s second concept of rule of law is applicable in Malaysia, as we can see it from the case of Lee Gee Lam v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor. The order of detention stated a few grounds on which the detainee was apprehended with the word ‘or’ and not ‘and’ in between. The court held that the statement denied the detainee the constitutional right to know the reason for his detention. The decision of the court is said to be in line with Article 5(3) of the Federal Constitution. It is apparent that in Malaysia, no one is above the law, as we can relate it to Dicey’s words that “equality before the law of all classes to the ordinary law of the land administered by the ordinary law courts”.

When we are trying to understand the the doctrine of rule of law in Malaysia in a different perspective, we can observe that there are some circumstances where this very concept is challenged. There are two features in the Federal Constitution that have diluted the rule of law in Malaysia. The two features are the amending power vested on Parliament in respect of the Constitution under Article 159 and the lawmaking power confided in the executive under Article 150. From these two provisions, it is possible that under certain circumstances such as the time of emergency, the Parliament has the authority to make amendments to the constitution, even if it contravene the provisions of the Federal Constitution, as is it sanctioned by the constitution itself. It does not mean that the rule of law is completely neglected, operated side-by-side with the system that handles the times of emergency. Article 149 in the Federal Constitution should be paid equal attention too as the Parliament is authorized to suspend any provisions contained in the Constitution, except for the 6 topics in Artcile 150(6A), once the YDPA has proclaimed emergency. The legality will not be questioned even if the Parliament has gone beyond limit in controlling the rights of freedom of movement, personal liberty, freedom of speech, assembly and association and the right to property.

Article 150 of the Federal Constitution has also somehow affect the foundation of rule of law in Malaysia. Under the declaration of emergency, Parliament claims too much discretionary powers in legislative authority. Besides, the Federal Government is allowed to make laws without going through the Parliament. It seems that fundamental rights can be violated not only by legislation, but it can also be violated by the delegated legislation under the authority of emergency power.

Although there is a great contrast in theory and in practice of rule of law under the Federal Constitution, the concept rule of law is still very much respected by our much criticized legal system. The Federal Constitution did placed limits on the power of amendment of the constitution. The practicing of checks and balances are carried out as required by the upholding of the doctrine of separation of power. As a conclusion, it is undeniable that there is no perfect representation of “rule of law” in Malaysian legal system but we shall always keep in mind that the doctrine should be respected and supported by everyone as it is necessary to the formation of a civilized and harmonious society....