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Explain the Rule of Law

Info: 1925 words (8 pages) Essay
Published: 20th Aug 2019

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Jurisdiction / Tag(s): UK LawMalaysian law

There is no precise definition regarding the rule of law as its meaning may differ among countries and legal traditions worldwide. Basically, the rule of law is enforced to ensure that no citizens of a country will be a slave to the arbitrary and abusive powers of the government, thus protecting the rights of citizens according to a clearly defined law. [1] Without the rule of law, the country’s attempts to provide a constitutional democracy will fail.

Law is created based on fundamental principles where a law cannot be created simply, but must undergone a string of procedures whereby a law is written, publicly revealed and enforced. [2] The most basic form of the Rule of Law states that no one should be above the law. This means that the law is supreme and hence, has to be followed by everyone, regardless of one’s status. In fact, anyone who is found to have violated the law shall be punished and convicted, unless proven otherwise. [3]

There are a few essential characteristics that the Rule of Law should posses, such as the law created should not be backward-looking. When a new law is created, it should not be related to the past but towards the future. For example, a criminal that has been convicted of a crime shall not be acquitted even when the law prohibiting the crime has been abolished. Nevertheless, a law should also be written clearly to avoid contradictions with other laws that had been enacted previously, and to avoid unfair enforcement of the law. [4]

The Rule of Law should also follow the common law methodology, where an enacted has to be stable. This is important so that validation of rules can be carried out without any changes or interruptions. [5] However, the law should be timely revised especially when there are changes in the social and political environment. [6] This is to be done so that contradictions of the enacted law with the new environment can be prevented, thus ensuring every aspect of the changes are being covered.

Besides, the law enacted should also base on an autonomous judiciary where it is free from government influence or any other legal-political powers. Lastly, the rule of law should also be a fundamental ethical source for all laws. [7] In this case, all laws created must follow all the eight essential characteristics of the Rule of Law and no one should disobey it.

However, implementing laws based on the essential characteristics discussed is certainly not easy in reality as laws are usually implemented in a way whereby it helps to solve conflicts that occur in the political choice of the population instead of other important matters. Furthermore, when laws are enacted too strictly, the inflexibility may disregard the human element in each case. [8] Therefore, implementations of law is certainly not easy and has to be constantly reviewed and checked in order to balance the main purpose of the law written.

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Question 2: Explain the Separation of Powers.

The Separation of Powers refers to the authority to regulate the country using different and independent institutions. It was created to divide power into branches and sections, so that no particular person or authority will maintain the full influence, responsibility and power over both federal and states. There are three different institutions that are responsible towards the regulation of law of a nation, known as the Legislature, Executive and Judiciary. [9]

In Malaysia, the Legislature refers to the Parliament, where it constructs laws, while the Executive refers to the government or rather the Prime Minister and its Cabinets where they have the responsibility to run or govern the country. The members of the Executive also include the public service, the police force, and the armed forces. [10] However, in Malaysia, this institution is said to be the most powerful as it controls the Parliament. Lastly, the Judiciary refers to the courts where they have the role to enforce laws that have been written by the Legislature. The Judiciary has the judicial power, that is, the authority to listen and make decisions according to the Constitution and the law, as well as the challenges on the legal rights and liabilities between a person and a person, or a person and the government. [11]

This concept of Separation of Powers also puts in a system of checks and balances, where each institution has the responsibility to check and limit the powers of other institutions. [12] This is done to ensure that each institutions act according to their roles in the Constitution and does not misuse their power. For example, the Legislative has the power to change or cancel a written or enforced law that has been made by the federal courts. [13]

Without this system of checks and balances, some of the institutions may become too powerful and take over the legal system in the country. For instance, if the Legislature institution was to overpower the other two institutions, it might have the freedom to construct any laws that might harm the society. When this happens, the society has no one it can refer to but the Legislature institution itself as it has the highest power as compared to the other two institutions; thus, leading to total anarchy of the situation. Therefore, the system of checks and balances is important to help ensure the fair enactment of laws and also to prevent any contradictions of law which might harm the social wellbeing of the society as a whole.

Question 3: Examine the relations between the Rule of Law and the Separation of Powers.

The Rule of Law and the Separation of Powers are important in a country. Both are closely linked, as they have to work in unity and, yet remain independent. In this section, the focus will be on the modern Constitution where it concentrates on the three essential characteristics of the Rule of Law, such as the adherence to the supremacy of law, an independent judiciary of the Constitution, and protecting the basic rights of the society. [14] There are three examples that will be used to examine the relationship between the Rule of Law and the Separation of Powers; the misunderstanding of Malaysians regarding the Tunship title, the misuse of power by Mahathir administration, and Guantanamo Bay, where suspected terrorists were put as a tryout for their ‘offence’.

In the first example, many people misunderstood that the royal family or politicians with Tunship title in Malaysia are able to break the law and yet, remain acquitted for their misconduct. This is certainly untrue as it is against the Rule of Law, which states that no one shall be exempted from the law, irrespective of the status or position that one has. To overcome this matter, a constitutional amendment has been made in 1993, which states no one shall have legal immunity, even if it is the Yang-di-Pertuan Agong or the Sultan. This amendment has since cleared the misunderstanding of the nation regarding the Tunship title where many believed it brings legal immunity. [15] Besides, this amendment has also shows that no one shall have the rights to breach the law, including any members of the Legislature.

In contrast, the second example refers to the Mahathir administration which has disregard the concept of Separation of Powers and breach the Rule of Law by making Judiciary institution as part of Executives. This action caused the Executive to obtain total anarchy over the Constitution as it is now more powerful than Legislative. This imbalance of power has harmed the fundamental rights of citizens as Judiciary no longer has the influence in the Constitution to protect the rights of the nation. [16]

Regarding the third example, President George W. Bush of America has made Guantanamo Bay as the central detention centre for terrorist suspects in year 2002. From this case, the president has breached both the Rule of Law and the concept of Separation of Powers. First, the president has broken the law by punishing terrorist defendants without the evidence of their misconduct. Secondly, the president has failed to consider the human rights of the captives whom were forced to undergo abrasive interrogation methods at the detention camp. Lastly, regarding the concept of the Separation of Powers, the president has certainly abused his power by going against the Rule of Law concerning the concept of justice. [17]

In conclusion, it is certainly not easy to maintain a balance between the Rule of Law and the concept of Separation of Powers. However, it is important that both concepts are constantly used hand-in-hand to ensure no corruption of powers by either member of the Constitutions; thus, ensuring that the overall wellbeing of the society is frequently maximised and remain unharmed. As stated by Plato, “Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.” [18]

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The Malaysian court system is based on the UK legal system familiar to those from common law jurisdictions, but it also incorporates distinct characteristics in the form of Islamic religious courts and two separate High Courts for the Peninsula and for the Borneo states.

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