Philosophy or political theory of law

The rule of law may be interpreted either as a philosophy or political theory which lays down fundamental requirements for law, or as a procedural device by which those with power rule under the law [1] . It cannot be viewed in isolation from political society. The emphasis on the rule of law as a yardstick for measuring both the extent to which government acts under the law and the extent to which individual rights are recognized and protected by law, is inextricably linked with western democratic liberalism [2] .

The rule of law has been subjected to analysis by political theorists of all persuasions. From the vantage point of the liberal democrat, the rule of law will ensure the minimum rules in society to enable man to fulfill his life plan according to law, but with minimum interference of law. AV Dicey’s writing on the rule of law has had a lasting influence on constitutional thought. Dicey argued that the rule of law- in its practical manifestation – has three main aspects:

No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense, the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.

No man is above the law, every man and woman, whatever be his or her rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals; and

The general principles of the constitution (as, for example the right to personal liberty, or the right of public meeting) are, with us, the result of judicial decisions determining the rights of private persons in particular cases brought before the courts [3] 

In order to have a well established constitution, the rule of law is an essential element to uphold the rights and liberties for the people in ensuring justice. After deeply scrutinizing what is the concept of the rule of law as a whole and the speculation made by Dicey, in an inference the rule of law is basically for the purpose to avoid arbitrariness an retrospectivity. To further contemplate what and how is the rule of law looks like, it is necessary to look at a real life situation. For instance, in Malaysia where we have a written constitution as the basic rules which establish, regulate, or govern the government. Notwithstanding with a written constitution justice still cannot be served fairly. In article 182 (3) of the Federal Constitution, stated that when there is any proceeding against the YDPA or the Ruler of a State be it offences or civil cases, must be held in the Special Court notwithstanding where the cause of action arose [4] .

Probe deeply in this Article, it obviously shows the discrimination of social rank. Where the normal people have to go through the normal courts like High Court, Court of Appeal, and the Federation Court, to settle any disputes be it civil or criminal cases. While the YDPA or the Ruler of a State may enjoy special privileges in their proceedings in the Special Courts if there are any offences committed by them. And also not to mention that their punishment will be much lighter. This Article contradicts with the 2nd postulates of the AV Dicey which he strongly emphasized that no man is above the law, every man and woman, whatever be his or her rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. To ensure that the rule of law to be followed, Article 182 must be amended so there should not be any ‘special courts’ for certain class/rank of people.

Further expatiation on the rule of law in Malaysia, is where we have Article 10(1) which stated that the citizen has the right to freedom of speech and expression [5] . The issue here is that even though we have the rights but most of the time when a speech is made against the government as to how they act, the person who is conducting the interview for such question, or made a public speech to express his views and expression, normally would be charged under International Security Act (ISA) as sedition. Again the government will excuse by using Article 10(2) which restricts our rights for the purpose of national security [6] . Without receiving critics, how will the government mirror themselves on whether what they do is right or wrong and most importantly they forget to uphold the rule of law. Again this is against the concept used by Divey. It contradicts with his 1st postulates which he firmly emphasized that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense, the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint. Again the person being charged under ISA will have most of his rights and privileges taking away. For instance as explained in the natural justice audi alteram partem where it is necessary to give the other party a chance by hearing what he has to say and giving at least a fair opportunity for him to present his case. In ISA this is not the case, there is no audi alteram partem applied.

On the contrary, this is not the case in The United States. In The United States the people are given their freedom of speech/expression. They are freely to express their own points of view and can also criticize heavily on the government without being charged down or convicted as sedition. Amendment 1 provides such privilege to the people. Amendment is commonly known as the Bill of Rights. In Amendment 1 it stated that the Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of people peaceably to assemble, and to petition the Government for a redress of grievances [7] . In this case, the United States is following the rule of law.

Another line of reasoning for the rule of law is that it is for the purpose to avoid retrospective law. It requires that no one can be punished except for a conduct which represents a clear breach of law. All laws should be prospective, open and clear. For instance, in Malaysia, in the case of PP v Mohamed Ismail [1984] 2 MLJ 219 – where the defendant was charged with drug trafficking which was punishable with life imprisonment or death under Section 39 B (1) of the Dangerous Drugs Act 1983. While his trial was pending, the law was amended to provide mandatory death penalty. At the close of the trial, the public prosecutor invited the court to impose the enhanced penalty. In refusing the request, the judge held that the amendment could not apply to the defendant’s case as it was enacted after the offence was committed [8] . Here the judge has followed the 3rd postulates described by AV Dicey as the result of judicial decisions determining the rights of private persons in particular cases.

Notwithstanding the rule of law prohibit against retrospectivity, there may be instances where a decision which imposes, for example, criminal liability may be upheld by the courts. For example, in UK, until 1990, there existed a time honored exemption from the law of rape for husbands who ‘rape’ their wives. In the case of R v R (1991), however, the House of Lords upheld the conviction of a husband for the rape of his wife, arguing that the rule against liability for rape within marriage was anachronistic. In a challenge to this decision under the European Convention on Human Rights, on the basis that it infringed Article 7 of the Convention, which makes retrospective unlawful, the Court of Human Rights ruled that the sweeping away of husbands’ immunity from criminal prosecution and conviction for rape represented an evolution towards greater equality between the sexes and was consistent with that equality [9] .