Theory and Reality of the Rule of Law
Updated: Sep 24, 2020
The Rule of Law is commonly regarded as the principal decree that safeguards good governance of any nation. Aristotle once said, “It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians and the servants of the laws”.
The biggest buzz word post GE14 is the “Rule of Law”. So what is this Rule of Law that Malaysia’s current Prime Minister, Tun Dr Mahathir Mohamad keeps stressing in his various speeches. Let us revisit the fundamental principles of the Rule of Law.
What is “Rule of Law”?
The term “Rule of Law" is derived from the French phrase 'La Principe de Legality' (the principle of legality) which refers to a government based on principles of law and not of men. The term implies that every citizen is subject to the law as opposed to the idea that the ruler is above the law.
In a broader sense, Rule of Law means that Law is supreme and is above every individual. No individual, regardless of his or her status, is above the law. In a narrower sense, the rule of law implies that government authority may only be exercised in accordance with written laws, which are duly accepted and approved through an established procedure.
Different legal theorists have different approaches towards the concept of Rule of Law. Some believe that the rule of law has purely formal characteristics with prospective application, and possess the characteristics of generality, equality, and certainty, but there are no requirements with regard to the content of the law. While other legal theorists believe that the rule of law necessarily entails protection of individual rights.
In the United Kingdom the doctrine of rule of law is a long-standing principle of the way the country is governed. The most fundamental sub-principles governing the rule of law are that no one is above the law, that there is equality for all before the law, that the law is always applied impartially and that legal redress is available through the courts.
According to the Rule of Law Institute of Australia, there is no single agreed definition of the term “Rule of Law”.
However, there is a core definition that has near universal acceptance.
“…most of the content of the rule of law can be summed up in two points: (1) that the people (including, one should add, the government) should be ruled by the law and obey it; and (2) that the law should be such that people will be able (and, one should add, willing) to be guided by it.” – Geoffrey de Q. Walker, The rule of law: foundation of constitutional democracy, (1st Ed., 1988).
At its most basic level the rule of law is the concept that both the government and citizens know the law and must adhere to it.
However the rule of law is also much larger than this. The relevance of the rule of law, and an understanding of its concepts, can be seen in its effects on society.
This is exactly what Tun Dr Mahathir has been stressing.
According to Tun Dr Mahathir, the rule of law is an integral part of a democracy, he further mentioned that in Malaysia today, there is obvious disregard for this fundamental principle, and hence many instances and events had been occurring with total disregard to the rule of law. When one ignores the rule of law, it constitutes an abuse of the law. When an abuse and disrespect of the rule of law is evident amongst the government, a non-democratic government will become evident without any restraints.
The Rule of Law in Malaysia
Theoretically, this doctrine of rule of law is deeply entrenched in our Federal Constitution. There is no doubt that when the Reid Commission intended to shape the Malaysian Constitution, it was dedicated to the idea of having the Malaysian Constitution built on the noble foundations of the doctrine of rule of law.
For instance, Article 4 of the Federal Constitution clearly states that the Constitution shall be the supreme law of the Federation, and any provision of the Constitution of any State or of any law which is repugnant to any provision of this Constitution shall, to the extent of repugnancy, be void. A simple reference can also be made to Part II of the Federal Constitution, within which are embedded the fundamental liberty provisions prepared by the Commission.
The Relationship between Rule of Law and Separation of Powers
Separation of Powers is also one of the pillars of the rule of law. This doctrine refers to a system where the powers of the government are divided into distinct branches. This is to prevent abuse of power and provide for checks and balances. Most countries including Malaysia, adopts the trias politica model whereby the government’s powers and responsibilities are divided into 3 main organs, namely, the Executive, the Legislature and the Judiciary.
As mentioned earlier, the doctrine of ‘Rule of Law’ is that all are equal before the law, i.e. no man is above the law. Hence, the 3 main organs of the government should practice separation of powers whereby their powers should be separate and independent of each other. Each and every institution has to ensure that they exercise their powers in accordance with the rule of law at all times.
In Malaysia, there are some overlapping parts between the three organs of government. The separation of power in the Malaysian system is similar with the English legal system in the United Kingdom, adopting the Westminster system. There are overlapping functions, powers and membership between the legislature, the executive and the judiciary but with the caveat that there should be checks and balances between these three organs.
Importance of Rule of Law and Separation of Powers
Both doctrines are equally significant and should be adhered to strictly at all times. The government, its officials and its agents as well as individuals and private entities are all accountable under the same laws whereby those laws protects all of our fundamental rights.
It is vital for every democratic country to have the three arms of government separated and acting independently within the confines of the law of the land. Failure to implement both doctrines will result in the collapse of civilization, corruption, abuse of power and violation of liberties, political and economic rights.
In nations where the rule of law is weak (where rules exist but are not enforced or are malleable), these nations tend to end up in a morass of lawlessness and corruption. Every country must guard against any creeping erosion of the primacy of prudent laws and build up sufficient sinews to defend them.
Proper, well-thought-out and prudent laws are the foundation of a nation and they define the parameters of civil society. Conversely, if laws become elastic, then the boundaries of life distend into dysfunction. Indeed, even well-functioning states can quickly succumb.
The Rule of Law must be protected at all cost in our beloved Malaysia.