Tutorial 4 - The Rule of Law PDF

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TUTO 4Based on the article written by Prof Emeritus Shad Salem Faruqi, you will discuss the following questions: What do you think are the characteristics of the rule of law? Discuss. The rule of law embodies four universal characteristics; i) accountability, ii) Just law, iii) open government, and ...

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TUTO 4 Based on the article written by Prof Emeritus Shad Salem Faruqi, you will discuss the following questions: 1. What do you think are the characteristics of the rule of law? Discuss. The rule of law embodies four universal characteristics; i) accountability, ii) Just law, iii) open government, and iv) accessible and impartial dispute resolution.

Firstly, the government like any other private body are accountable under the law. The court supply a dispute- resolve mechanism between citizen and the State and between citizens. According to Art.8, all person is equal before the law and entitled the equal protection of law including the government. Secondly, there are just laws. The law must be clear and publicized. It has the duty to safeguard fundamental liberties such as liberty of a person, equality, religion and land.

Open government is the third characteristics. The government must be transparent in enacting, administrating and enforcing the law. The law must be fair and just. The government is divided into three organs which are i) the executive, ii) the legislative, and iii) judiciary. Lastly, rule of law must provide an accessible and impartial dispute resolution mechanism. Justice is delivered by a competent, ethical and independent body which is the judiciary. In Malaysia, the judiciary body is separate and independent from other branches of the state. Besides that, the judges are men and women of integrity, impartiality and legal wisdom.

2. Identify the areas, as discussed in the article, in which the rule of law has been broken in Malaysia and explain why.

The first area is the impartiality of the judiciary. As the rule of law, the representative body that determines justice must be impartial. In Malaysia, that body is the judiciary but unfortunately, this body is not fully impartial. Art. 121(1) prior to its amendment in 1988, conferred the judicial power of the Federation fully to the courts but after the amendment, the power was taken away and only the judicial power conferred by the Federal law is given to the courts. The courts power is limited by the legislative and therefore, not impartial. Secondly, conflict between the Syariah and civil courts disrupt the efficiency of the dispute settlement mechanism. Article 121(1A) was inserted into the Constitution to immunize Syariah courts, acting within their jurisdiction, from interference by the civil courts. However, the amendment did not clarify as to who is to have power to determine conflict of law situations or issues of constitutionality or human rights. Moreover, the Syariah court jurisdiction is limited; only civil jurisdiction under Schedule 9 List II and criminal jurisdiction limits to penalties of maximum 3 years imprisonment, 6 strokes of the cane and a fine of RM5000. Thirdly, the reasonableness of enacted laws. The court has no power to determine the reasonableness and fairness of the law because it is said is the power to determine the justness of a law is vested in the government. Any law that is enacted by the Parliament is considered a just law. 3. Do you think the principle of the rule of law is practiced in Malaysia?

4. What are some of the possible actions you feel the new Malaysian government could take to better align itself to this principle?...