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Explain the Rule of Law

Info: 2125 words (9 pages) Essay
Published: 28th Jun 2019

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Jurisdiction / Tag(s): Australian Law

The rule of law is a legal maxim according to which no one is immune to the law. Rule of law can be the rule of law explains in detail as a doctrine there is no individual can be above the law. [2] In theory, Rule of Law had a major affects on trying to hold back the subjective use of power by rulers. [3] As well as the growth of legally enforced Human Rights in many countries. [4] If it is considered as conflict with the rule of law, the judges will use the power to mange legislation. [5] As an example, Chu Keng Lim vs Minister for Immigration of the landmark case. [6] To offer for the required custody of certain chosen persons who could not be on the loose from keeping by an order of the court, Parliament had adjusted the migration act. [7] However, this legislation has been discarded by saying it was “away from the lawmaking authority of parliament to spend the decision-making with a subjective to arrest people in custody not enduring that the authority was awarded in conditions which required to separation such imprisonment in custody from together punishment and criminal guilt.”

8Placing one side of special condition the instinctive detention a resident in custody by the state is punitive or penalizing in personality and exists only as an occurrence of the wholly judicial purpose of adjudging and demanding illegal fault. [9] Every resident is “ruled by the law and the law alone” and can with us be penalized for a break of law other than he cannot be penalized for anything. [10] On the other hand, the judiciary uses a system of precedent which let the reliability in result but still gives for individual situation. [11] This assures that there is no bias between human. [12] Although all present conferences fulfill by the ‘rule of law’, the constitution is not giving assurance and gives for things like the subjective work out of authority by the Governor General.

13Hughes publication Australian Politics it says that “ the court reasoned that that since the constitution could be presumed to authorize a system of representative democracy this in turn entailed freedom of debate.” [14] In addition, this sentence of analysis keen the way towards the finding of indirect rights. [15] The doctrine of ‘the rule of law’, without it our government will be inequitable and will be deemed ‘the rule of men’ where some citizens were excused from the law and would not be fair.

16Separation of powers describes the distribution of the executive, judicial and legislative responsibilities of a government among separate and distinct branches. [17] Separation of Powers is the main issue to support the rule of law, where administration by the law not supported on its own authority Monarchy only could bring tyranny, aristocracy alone could bring oligarchy, and Democracy could bring anarchy. [18] There are three separation of power in each government, the legislative, the administrative in admiration to things needy on the law of nature, and the administrative look upon to matters that depend the civil law. [19] The separations of power in Malaysia system are alike to UK separation of power. [20] The reason is because there is no separation of executive and legislative power due to the cabinet type of organization. [21] This synthesis of legislative and executive functions is intrinsic in the Westminster system. [22] Usually the Prime Minister in Malaysia came from the Dewan Rakyat. [23] It’s a condition to happen to a Prime Minister in Malaysia. [24] In addition, the YDPA in Malaysia who is the ceremonial administrative is an essential element of the Parliament. [25] The cabinet is chosen by the YDPA in the recommendation of the Prime Minister. [26] Although the system used in Malaysia is generally like Britain, it is essential to know that the Federal Constitution obviously confirmed the purposes of the three organs of government.

27Basically the idea of separation of powers is lie under the study of political science and it also appears in Constitutional study. [28] Separation of powers enforces the concept of rule of law where government by law not rules by men. [29] Separations of powers are also frequently said in the media and internet blogs by the opposition party of many countries especially in Malaysia. [30] In the situation of United States, strict separation could bring delay in administration. [31] But the executive is accountable just to the President that makes him has more power in executive. [32] The rule of law is popularized by AV Dicey, the British jurist. [33] Ironically the country of his origin does not really portrait the concept of rule of law through Separation of Powers. [34] Fusion of powers (executive and legislature) in Parliamentary system does not exactly bring bad benefit to the government. [35] It can sometimes be positive and in the other time could bring to tyrannical effect. [36] Tun Suffian suggested that” Thus in Parliamentary Democracy there is no real separation of powers. [37] The executive and legislature lie in one hand while the judiciary is on the second hand. [38] Therefore the separation of powers operates at it best when the judiciary organs are truly


(c) Examine the relations between the rule of law and the separation of powers.

(20 Marks)

The rule of law’s function is as a primary position in maintaining the separation of powers doctrine which let for the separation of powers to work at its uppermost possible. The rule of law is the opposed of the rule of power. It position for the preeminence of law over the preeminence of person will. But to say this is to address only in the most universal of conditions. As in the case of all theoretical biased principles, the necessities of the rule of law are dispute. The separation of powers doctrine is also a multifaceted and challenge idea, and the amount to which it supports the rule of law therefore depends, in part, on how its necessities are unspoken. This quantity of the Macquarie Law Journal discovers the sense of the rule of law as well as the degree to which the separation of powers – the ideology of separating and complementary power − can be used to move forward rule of law principles.

The meaning of scheming the delivery of broad and untraced authorities on the administrative is agree with in the circumstance of delegated legislation by Caroline Morris and Ryan Malone. It is clear that, for reason of common sense and expediency, the legislature must be capable to delegate legislative power to the administrative. At the equal time, if the administrative is agreed a blank cheque to conclude the primary rule of the law, the model of government under law – government forced by legal norms proclaim in move forward – is in danger. This is one area in which the doctrine of the separation of powers serves the ends of the rule of law because the separation of powers speaks likewise against the unrestricted delegation of legislative power. No doubt there cannot be a total separation of legislature and executive in a parliamentary system of government, but the values served by the separation of powers suggest that there must be limits on the extent to which legislative power can be transferred to the executive. For one thing, the conferral of unfettered power on the executive to make law creates the danger of the concentration of power in one branch of government – a danger which it is a primary purpose of the separation of powers doctrine to guard against.

Yet the Constitutional Court of South Africa has said that the Constitution protects against the unlawful and unreasonable use of public power regardless of whether such use qualifies as administrative action. Furthermore, the Court has said that in terms of the Constitution any exercise of public power must be ‘objectively rational’. It justifies these conclusions on the basis that there is an unwritten principle of legality contained within the South African Constitution, which the Court describes as part of the doctrine of the rule of law. It seems that this foundational value of the constitutional order imposes normative constraints on the exercise of public power which go further than the Constitution’s written guarantee of administrative justice, entitling courts to quash the exercise of public power in circumstances where the Constitution is silent. Notwithstanding their omission from s 33, substantive unfairness and lack of proportionality could well be found to be grounds of review in terms of this argument.

In conclusion, the separation of powers doctrine should be replaced and that the idea of the rule of law should be rejected in favour of the more realistic debate on legality.

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