Judicial review Research Paper

The Rule of Law, in its most basic form, is the principle that no one is above the law. The rule follows logically from the idea that truth, and therefore law, is based upon fundamental principles which can be discovered, but which cannot be created through an act of will. The most important application of the rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps that are referred to as due process.

The principle is intended to be a safeguard against arbitrary governance, whether by a totalitarian leader or by mob rule. Thus, the rule of law is hostile both to dictatorship and to anarchy which is why it is regarded as prevention to power abuse. Rule of Law cannot exist without a transparent legal system, the main components of which are a clear set of laws that are freely and easily accessible to all, strong enforcement structures, and an independent judiciary to protect citizens against the arbitrary use of power by the state, individuals or any other organization.

Everyone knows it, but everyone seems to have their own understanding as to what it means. One thing that the informed have agreed upon is that the Rule of Law does not mean rule by law. The latter implies that any law, be it wicked or good, is valid and will be enforced. The former is a more complex proposition, for it means that we are ruled by laws and not the discretion of man (or woman) and, furthermore, that law has to guarantee certain principles.

When the law is seen as being used in a discretionary manner, that is to say it is being applied to some and not to others, not only is this clearly wrong, but it will also lead to extreme anger. If a thug destroys my enemy’s property, and if I am in power, that thug must be apprehended and punished even if his actions may give me personal pleasure. That is the burden of power and that is what anyone who deems himself worthy of holding office must bear. Any less and you are nothing more than a tyrant.

Well, it is correspondingly vital to stress more focus on the reality or the practice of the mentioned principle in the Malaysian context. For that reason, it is important to know that, as much as the Federal Constitution itself expressly or literally carries Dicey’s principles on the understanding of the rule of law, however, as what we have experienced, and established all through the years, it also limited the justifiable possibility of creating wide exceptions on them from the very beginning.

This possibility has been proven into practicality in a number of fields. Therefore, the ‘ideal’ constitution, and the ‘real’ constitution, resembles two legal structures operating in tandem. Such a proposition for the rule of law suggest that it must be seen as a notion or value to be kept and maintained, but it is not as an absolute value. In other words, when some policies regarded as fundamental comes into play, the doctrine of the rule of law is just one of the many competing values, and on occasion, gives way, to them.

It would seem to be that Article 4(1), which is viewed as the basis of the doctrine of the rule of law, could be said to be diluted by some features in the constitution itself such as: the power of amendments vested on Parliament in regard of the constitution under Article 159 and the law-making power confided in the executive (on whose advice the Yang di-Pertuan Agong (‘YDPA’) is bound to act) under Article 150. Consequently, the Malaysian Government and the Parliament have over the years made broad use of emergency powers, sanctioned by the constitution.

This is not to say that the rule of law is neglected all together, but the normal legal system operates side-by-side with a system that handles times of emergency or turmoil. For instance, under Article 159, Parliament is vested with the authority to make amendments to the constitution, even if it is inconsistent to other Articles of the Constitution. Now, a good question to ask here is, at such circumstances, whether the Federal Constitution is still supreme in such a situation?

Taking in the case of Phang Chin Hock v Public Prosecutor, the Federal Court of Malaysia came to a decision that ‘the rule of harmonious construction in construing Article 4 & Article 159 enables them to hold that Acts of Parliament made in accordance with the conditions set out in art 159 are valid even if inconsistent with the Constitution’. To further understanding, it is equally crucial to make reference to the case of Loh Kooi Choon v Government of Malaysia, “the individual has certain fundamental rights upon which not even the power of the State may encroach” in which where the Federal Court turned down the

argument that the Federal Constitution, as the supreme law of the land, cannot be inconsistent with itself. In the said case, Parliament amended Article 5(4), denying the right to production before a magistrate for persons detained under restrictive residence law. The said amendment was given retrospective effect until Independence Day. From the court’s decision, it would look like as if the safeguard against retrospective laws is subject to many requirements and sometimes, it’s better to just ignore fundamental concepts.

With the effect of Article 159 on the applicability of the rule of law under the Federal Constitution in mind, equal attention must also be given to Article 149 as well. Article 149 empowers Parliament by only utilizing a simple majority procedure to enact laws to combat acts of subversion, and its legality is never questioned, even if they transgress the guarantees of freedom of movement, personal liberty, freedom of speech, assembly and association; and right to property.

To put it differently, Article 149 goes even further to the point that once the YDPA has made a proclamation of emergency, Parliament is authorized to suspend any provisions contained in the Constitution, except for 6 topics in Article 150(6A). Well, it is inevitable for us to conclude that the law under Article 149 is allowed to violate fundamental rights embedded in Article 5, 9, 10 and 13. Prominent instances of Art 149 laws are the Internal Security Act 1960, and the Dangerous Drugs (Special Preventive Measures) Act 1985, both of which authorize preventive detention.

The Sedition Act 1948 imposes significant restraints on free speech in relation to ‘sensitive issues’ of Malaysian politics. In addition, the approach adopted by the Malaysian courts is worth to be noted as well. For the past 44 years, the Malaysian courts have shown reluctances in invalidating the legislation made by the Parliament in the grounds of ultra vires or unconstitutional. The judges have somehow showed inclination in following the British style of parliamentary supremacy rather than constitutional supremacy as provided in article 4(1) of the Federal Constitution.

Inevitably, it would give people the idea that article 4(1) is more notional than realistic and practical In spite of this, it should be acknowledged that we do practice the basic checks and balances as required by the safeguarding of the doctrine of separation of power and the rule of law. In one way or another, it shows that Malaysia does not totally disregard the rule of law and to certain extent; we even respect the rule of law.

For instance, procedural controls and substantive limits guarding the emergency powers as stated in article 150 of the Federal Constitution are also available. The judiciary even defended that the emergency law provided does not automatically purports to violate the supremacy of the Federal Constitution. On the other hand, some also came out with the argument that the courts have the power to review the proclamation of emergency despite article 150(8) of the Federal Constitution.

In conclusion, it would seem so in Malaysia, the basic concept of constitutional supremacy that was brought to life under Article 4(1) that embeds the doctrine of rule of law, can only be maintained and achieved through judicial creativity in methods of interpretation of certain constitutional provisions which are regarded as a deterrent to the spirit of constitutionalism and the rule of law. It is about time for the Malaysian courts to shift from their reluctant attitude towards striking down legislation of the parliament, or even to the point of challenging actions of the executive on the grounds of unconstitutionality.

We must always keep in mind that without the respect to the doctrine of the rule of law, the said democratic state will be short of the legal framework necessary for a civilized society to nurture and in turn flourish; sufficient checks and balances on the executive and legislative branches of government and necessary legal foundations for free and fair electoral and political processes. Bibliography Conway, Dawn. “About Us. ” 5 February 2007. Lexus Nexus. Online.

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