The rule of law does not have a fixed and precise definition, and its meaning can be different between nations, legal traditions and people from all kinds of lifestyles.
The Secretary-General of the United Nations defines the rule of law as: 1
A principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.
Generally, the rule of law is the principle that no one is above the law2 and treated equally among citizens. Laws are made to maintain law and order in our society and provide a harmony environment for the sake of progression of people.
In England, Professor A.V. Dicey developed a concept on rule of law from Edward Coke’s concept in a classic book ‘The Law Of The Constitution’ published in the year 1885. 3 Dicey’s theory of law formed from three concepts of principles. These three concepts are: 4
No man could be lawfully interfered or punished by the authorities except for breaches of law5 established in the ordinary manner before the courts of land.
This indicates that in England, nobody can be thrown into the jail if no law has been broken. Unless a law is broken, neither a person nor his or her goods can be lawfully made to suffer. Society is ruled by law. The governments can only do things that are authorised by or within the law. It means the rule of law is contrasted with every system of government based on the exercise by person in authority of wide arbitrary or discretionary powers of constraint.6
No man is above the law and everyone, whatever his condition or rank is, is subject to the ordinary laws of the land.
This means that everyone is equal and not based on classes if they break the law. Everyone will be charged equally to the same law and be subject to the same law courts. Governments and citizens will obey the same law and no specialty will be given to anyone.
The result of the ordinary law of the land is constitution.
The rule of law indicates that the general principles of the constitution are the result of judicial decision of the courts in England. Right such as right to speak in public, freedom to organize a public meeting and right to vote are guaranteed by a written constitution in most countries but in England, it is not so. Those rights are the result of judicial decisions in cases which have actually arisen among the parties. The consequence of the rights of every individuals are the source but the constitution is not. Therefore, Dicey emphasized the importance of the role of the courts of law as gruantors of liberty.7
The formulation of the rule of law is founded by A.V. Dicey over 100 years ago. It is therefore not surprising that his theory is used as a reference in the rule of law of many countries around the world nowadays. However, several criticism have been made against Dicey’s theory of rule of law.
A.V. Dicey 2
(b) Explain the separation of powers.
Since achieve independence from British on 31 August 1957, Malaysia practices Parliamentary Democracy and Constitutional Monarchy.8 What is practised in Great Britain is very similar to the structure of government in Malaysia. This is due to the fact that Malay Peninsular, as Malaysia was previously known, was a former British Colony. The structure of government is divided to three different branches by the Federal Constitution, that is Legislature, Executive and Judiciary. 9 The concept is based on the theory of “separation of powers” as practised in Great Britain.
The reason behind the existence of Separation of Powers is that when a group or person has a huge amount of power, they can become dangerous to the society and citizens. If a single group shared all three powers, they would be a dictatorship and have unlimited power. They could do anything they like without been questioned. The Separation of Power is a method of reducing the amount of power in any group’s hand, hence making it harder to abuse and used in a wrong method.
Briefly, legislation is enacted by Parliament by introducing a Bill which is passed by both Dewan and approved by Yang di-Pertuan Agong. There are three types of Bill – Public Bill, Private Bill and Hybrib Bill.10
There are two main stages in the legislative process: pre- Parliamentary and Parliamentary. In Pre- Parliamentary Stage, it covers the government proposal, meetings between relevant authorities, drafting of Bill by Parliamentary Draftperson and Cabinet approval of Bill. After approval by the Cabinet, the Bill is ready to be introduced into the Parliament.11
The Minister responsible for the subject-matter introduced the Bill into Parliament. When it has been passed, after debate and voting, by the Dewan Rakyat, it is referred to the Dewan Negara where it goes through the same processes. In each Dewan, the Bill goes through four processes – First Reading, Second Reading, Committee Stage and Third Reading. Once the Bill is given to the Royal Assent, it becomes an Act. Act comes into force when it is published.
The Executive consists of the apparatus of Government, principally: the Cabinet, the public service, the police force and the armed forces.12 Since Independence in 1957, Malaysia’s executive arm, because of its control of Parliament, has always been the strongest and dominant branch. The power of the Yang di-Pertuan Agong strengthened executive dominance, acting on the advice of the Cabinet, to suspend the constitution or laws of the federation or state if he is satisfied that a grave emergency exists.13
Heavily influenced by the British Common Law and to a lesser extent Islamic law, the Judiciary of Malaysia is largely centralized despite Malaysia’s federal constitution, and is mostly independent from political interference.14 The highest court in Malaysia, the Federal Court reviews decisions referred from the High Court of Peninsular Malaysia, the High Court of Sabah and Sarawak, and subordinate courts. Yang di-Pertuan Agong, which is the lord president of the Federal Court, has original jurisdiction in disputes among states or between a state and the federal government. The Malaysia Judiciary is headed by the Chief Justice, while two Chief Judges head the High Courts in Peninsular Malaysia, Sabah and Sarawak.15
The judiciary functioned with a high degree of independence. Most civil cases and all serious criminal cases have jurisdiction by High courts. The sessions courts hear the cases involving car accidents and landlord- tenant disputes. Magistrates’ courts hear criminal cases in which the maximum sentence does not exceed 12 months. The Court of Appeals has jurisdiction over high court and sessions court decisions.16
Examine the relations between the rule of law and the separation of powers.
Rule of law has a definition in which laws are meant to be binding to all decision in court. If it is frequently challenged, it will pose a threat to rule of law. It is threatened in the sense that individual will manipulate law to advance for their personal interest. Law will then only be a tool for people to meet their own needs.
Separation of power on the other hand means that every bodies in the government sector, for instance the judiciary bodies, the administrative bodies has their own power in executing their duties. Each body carries out their duty independently and other bodies cannot interfere in their decision-making process. If separation of power is not exercised in a country, government bodies can hardly execute their duty in fair and independent manner.
The relationship in between this two is that they are interrelated. Rule of law and separation of power make sure that all bodies carry out their duty justly and independently. Rule of law sets out law that are binding to everyone and separation of power is making sure that these laws are adhered and no individual should interfere other’s bodies and manipulate the law for their own benefits.