PassTrimesterQuestion Constitutional Law I

1. Rule Of Law
Rule of law can be direct translated to rule according to law. It requires the
government to exercise its powers in accordance with established and clearly written
rules, regulations and legal principles. Constitution is a rule of law, however not all
constitution follows the theory of rule of law. It shall be define as the balance of
governmental power with the protection of human rights. Aristotle once said, “The
rule of law is better than that of any individual”.
British jurist A. V. Dicey popularized the rule of law and emphasized three
aspects. Firstly, no one can be punished or made to suffer in body or goods
except for a clear breach of law proved in an ordinary court. No body also
should be given too wide on arbitrary or discretionary power. It means, without
any clear breach of law, a person must not suffer any punishment either jailing,
whipping, torture or suspension of property. Besides, system of government should
have arbitrary and discretionary but the power must be limited. Secondly, no one is
above the law and everyone is equal before the law regardless of social,
economic, or political status and they are subjected to the same court of the
land. This explains the equality before law for every class of citizens. Thirdly, the
results of judicial decisions are better protectors of the rights of private
persons.
According to Dicey‟s first postulate, Malaysia may affirmed rule of law as in
the case of LohKooiChoon v Government of Malaysia, where court held that no one
be punished except for a conduct which represents a clear breach of law. However,
the Internal Security Act of Malaysia 1960 is obviously contrary to the rule of law as it
allows a person to be detained without trial and the detainee has no rights to bring
the matter to be heard in court. Besides that, during emergency declaration under
Article 150 of FC, the supreme law will be suspended by itself and it allows
preventive detention. Preventive detention allows the government to imprison a
person based on suspicion for some time without any criminal charge. While Article
149 of FC, allows Parliament to pass special laws to stop or prevent any actual or
threatened action by a large body of persons which Parliament believes to be
prejudicial to public order, promoting hostility between races, causing disaffection
against the State, causing citizens to fear organised violence against them or
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2. property, or prejudicial to the functioning of any public service or supply. Such laws
may suspend Article 5, 10 and 13 of the FC. Moreover, government of Malaysia may
acquire any land for any public purpose compulsory from the citizen as stated in
Section 3 of the Land Acquisition Act 1960 subject to adequate amount of
compensation. The Police Act 1967 provides wide discretionary and arbitrary power
where the body have rights to arrest or not to arrest any person.
On Dicey‟s second postulate, in the GCHQ case, British government under
Margaret Thatcher decided that employees of the Government Communications
Headquarters (GCHQ) would not be allowed to join any trade union for national
security reasons. This was enforced through an Order in Council, an exercise of the
Royal Prerogative. The Council of Civil Service Unions chose to bring this matter to
court through judicial review. The lords held that, exercises of the Royal Prerogative
were generally subject to judicial review. This proved that the government of UK
upholds equality though matters relating to royal prerogative. Malaysia tries to
uphold rule of law by virtue of Article 4 of FC which provides that Federal
Constitution shall be the supreme law of the land. Besides that, Article 8 of FC
provides equality for all people before the law and entitled for equal protection of the
law. However, the application of two court system which are the Civil and Syariah
had goes against the concept of rule of law as the citizen are not tried in the same
hierarchy of courts. Syariah courts only binds person professing the religion of Islam.
Moreover, many part of equality has been breached by the Malaysian system
namely by the existing Special Court to tried royal members which needed special
permission from Attorney General and Court Martial which only applicable to army
that is not governed by judges but by senior army officers. Besides that, judges enjoy
judicial immunity as they cannot be sued while serving in court. The members of
parliament also enjoy parliamentary privilege where they have freedom of speech
while in parliament
As reference to Dicey‟s third postulate, Malaysia also tries to uphold rule of
law by having the judicial review even though only on the procedural part. Judges
must play important role to uphold the constitution according to the rule of law. Even
though the citizens of Malaysia had been granted human rights under Article 5-13,
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3. however, it is restricted by the constitution and it also may be suspended by Article
149.
Joseph Raz identified several principles that may be associated with the rule
of law in some societies. Some of Raz's principles are that laws should be (1)
prospective rather than retroactive. However, common law judges may be
retrospective as he decides cases based on matters that had already happened.
Article 7 of the FC protects only against prospective criminal laws but not both
criminal and civil laws. As in the case of PP v Mohamed Ismail, the defendant was
charged with drug trafficking which was punishable with life imprisonment of death
under Section 39B (1) of Dangerous Drugs Act 1983. While his trial was pending, the
law was amended to provide for a mandatory death penalty. However, judge held
that the amendment could not be applied as it was enacted after the offence was
committed. However, in UK, the law may be retrospective as in the case of Burmah
Oil Company v Lord Advocate. The parliament passed a legislation to nullifies the
earlier decision made by courts and it act retrospectively and had affected the case.
Secondly, (2) laws should be stable and not changed too frequently. As
Malaysia had been governed by a ruling party that obtains majority seats in
parliament, it eases the government to amend the constitution to their interest.
Besides that, the number of subsidiary legislation also had increase.
Thirdly, (3) there should be clear rules and procedures for making laws. As to
the Malaysian law, legislative branch of government had to comply with the
legislative process. The bill must pass both parliament and gained royal assent
before become an act.
Besides that, (4) the independence of the judiciary has to be guaranteed. The
judiciary branch must be given independence to uphold justice. Judges also must be
protected as to their security of tenure. However, the judicial crisis 1988 had
abolished the rights of judicial system in Malaysia.
Next, (5) the principles of natural justice should be observed. The principle
maybe viewed in two separate limbs which are the „audialteriampartem‟ – right to be
heard and „nemojudex in causasua‟ – must not judge in the case of interest.
Malaysia obviously does not uphold audialteriampartem as the Internal Security Act
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4. had disabled the rights of a person to be herd before the law. Besides that, the
judicial crisis 1988 prove that Malaysia does not apply nemojudex in causasua
where the judge in the tribunal was judging in a case where he had the interest.
Besides, (6) courts should have the power of judicial review. As to the
amendment on Article 121, the judicial power of the Malaysia court system had been
disabled.
Next, (7) the courts should be accessible; no man may be denied justice and
the discretion of law enforcement and (8) crime prevention agencies should not be
allowed to pervert the law.
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