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LAW 3118 Administrative Law

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LAW 3118 Administrative Law

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LAW 3118 Administrative Law

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Course Code: LAW3118
University: International Islamic University Malaysia

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Country: Malaysia

Question 

The Rule of Law 
Comparative on applicability of rule of law between different countries.

Answer

The rule of law recognises the supremacy of law. It establishes that no person should be above the law. For a democracy to be well functioning, there needs to be a recognition of the rule of law. The essentials of democracy, for instance, the system of fair election, respect of human dignity and rights, and a participative society is the basis of rule of law. The application of rule of law may differ from one country to another. The purpose of this study is to identify the difference in applicability of rule of law in various countries. This essay shall first identify the rule of law in various countries and emphasis the difference in the applicability of the rule of law in those countries.
The origin of the rule of law in the English legal system can be linked with the origin of English Constitution. The rule of law in England has empowered the Parliament to make any changes in their constitutions and no political authority holds the power to control the constitutionality of an enacted legislation. The parliamentary sovereignty discards the division between the fundamental or constitutional law and the ordinary laws. The formal legal source of law in the country is the legislative sovereignty of parliament. The parliament reserves the right to abolish or create a new law, and no other individual or organ has the power to ignore the parliamentary legislations. Though England has no written constitution, still it is considered as the bastion of rule of law. It was assumed that the King shall not be subjected to men, as he makes the law. He shall be subjected to the God and the law. The rights of the individuals, though were secured but not guaranteed by the any formal document such as a written document, but they are guaranteed by the remedies of the private law which are available against the person who has unlawfully interfered with the liberty of the other person. The rule of law under the English constitution recognises equal protection of law to person within its jurisdiction. The same has been recognised in the constitutions of Canada and Germany. The rule of law in English legal system does not impose a legal limits upon the Parliamentary sovereignty. Additionally, in the English rule of law, the Acts of the Parliaments are not subjected to judicial review.
The same is followed in the United Kingdom, as the Courts has no power of judicial review of the Acts of the Parliament. Rule of law is the fundamental principles of the constitution of the United Kingdom, which recognises the supremacy of law. The rule of law in UK ensure that all the citizens are treated equally and that they have the same rights and access to the legal system. One of the main aspects of the UK rule of law is that the judges should be non-political and impartial. The applicability of rule of law mandates that under any kind of political influence, the judges should be independent. The connection between the House of Lords and the judiciary was severed by the establishment of the Supreme Courts in the United Kingdom.
Whereas, in the case of Parti ecologiste Les Verts, the European Court of Justice declared that the European Union is not a state that is governed by the rule of law, but is a community which is based on the rule of law. The European Union enables the independent Courts to review the decisions of the public authorities. In the R.J. Reynolds Tobacco Holdings, Inc. v. Commission of the European Communities, a2006 E.C.R J-7795, 7837, the Court of Justice stated that the fundamental elements of the Constitution of European Union is the access to justice, which is based on rules of law. The Court of Justice has the power to review the legality of the measures adopted by various institutions. European Union is the party to the Treaty on European Union, which provides under Article 2 that, the applicability of rule of law in European Union is established on the value of respect for the human dignity, equality, democracy, respect for human rights and freedom. The members of this treaty are required to maintain non-discrimination, pluralism, solidarity, and justice, equality among men and women and tolerance.
However, in United States, the rule of law provides that certain inherent and fundamental rights like, right to life, liberty, ownership of property and the pursuit of happiness is secured to the citizens through the constitution. The fundamental of rule of law in United States is that all person, entities, and institutions are accountable to law which is enforced equally, publicly promulgated, independently adjudicated and are in consistent with the international principles of human rights. Unlike the English rule of law, the American Courts play an essential role to maintain the rule of law. Equality before law is protected under every scenario in the American to all citizens. It is such a vital part of the American system of Government that, when the rights of the minority is infringed the Court shall give immense protection to the minority if possible. America is a democracy that does not always depend upon the simple majority rule. For example, to protect the freedom of speech, religion and equality before law, the Bill of Rights were passed, and no majority rule is able to change the Bill. In the United States the separation of power is followed to strike a balance in between the authority and liberty. Pursuant to the Article VI of the US Constitution and the ordinary laws, the laws of US and the international treaties ratified by it has become the supreme law of the land. Any legislation made in violation of the fundamental laws of the Constitution will be held invalid. In the eminent case of Marbury v Madison, 5 U.S (1 Cranch) 137 , 137 (1803), the Supreme Court of the United States, while defining the principle of the separation of powers, decided that it has the power to ensure that the ordinary legislation are in consistent with the Constitution. The Supreme Court observed that the Article III of the Constitution of United States provides that the Court is empowered to exercise judicial power, hence the court is empowered to interpret the constitution and the Supreme Court has the power to review any conflict between the Constitution and a statute enacted by the United States Congress.
The doctrine of rule of law, in Singapore, includes the judicial independence, availability of judicial review, principles of natural justice and accessibility of justice. Singapore is a country that is multi-racial and multi religious. The Singapore Constitution considers that rule of law within the country means that everyone within the Country, including the Government, is subjected to the law. The Supreme law of the land is the constitution of Singapore as provided by the Article 4 of the Constitution. Separation of power is recognised in Singapore which empowers the three organs of the State to exercise its duty to ensure justice within the Country. Referring to the case of Mohammad Faizal bin Sabtu v Public Prosecutor [2012] SGHC 163, it can be observed that the sovereignty of power is shared in Singapore between the Legislature, Judiciary and Executives. These organs are responsible for creating a system of checks and balances within them. The Singapore Constitution, under Part IV, sets out the fundamental liberties of the persons. Protection of the right to life and personal liberty is ensured under Article 9 of the Singapore Constitution.
The Malaysian Constitution has also found its base on the doctrine of rule of law. In the written constitution of Malaysia, one of the fundamental principles is the rule of law. Though the country is basically founded on the rules of the political leaders who consider that Malaysia is a government of law and not of men, principles of rule of law is still recognised. In Malaysia it is settled that a person should only be punished for a conduct which is in the violation of law. Applying the Article 7 (1) of the Federal Constitution, the Court in the case of Public Prosecutor v Mohamed Ismail decided that the punishment should not be enhanced because of an amendment in law in an instant case. All decision of law is required to be in compliance with the equality before law. Applying the Article 5(3) of the Constitution, the Singapore Court held in the case of Lee Gee Lam v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor that the detainees have the right to know the reason for his arrest. There are various similar incidents where the Malaysian Court has recognised the supremacy of law.
From the above discussion, it can be observed that, rule of law has its application different in various countries. While in the Europe and American country, rule of law is considered as the integral part of the system, the concept differs in Asia. In Singapore or Malaysia, the rule of law is subjected to political debate. However, it can be argued that the basic principles of rule of law is applied and accepted in every countries.
References
Cremean, Damien J. Admiralty Jurisdiction: Law and Practice in Australia, New Zealand, Singapore and Hong Kong. Federation Press, 2008.
Europa.eu. 2018, https://ec.europa.eu/info/policies/justice-and-fundamental-rights/effective-justice/rule-law_en. Accessed 22 Nov 2018.
Inbrief.co.uk. Inbrief.Co.Uk, 2018, https://www.inbrief.co.uk/legal-system/the-rule-of-law/. Accessed 22 Nov 2018.
Lee Gee Lam v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1993] 3 MLJ 265
Malaysianbar.org.my. 2018, https://www.malaysianbar.org.my/members_opinions_and_comments/how_do_the_rule_of_law_and_separation_of_powers_really_work_.html. Accessed 22 Nov 2018.
Marbury v Madison, 5 U.S (1 Cranch) 137 , 137 (1803)
Mohammad Faizal bin Sabtu v Public Prosecutor [2012] SGHC 163
Parti ecologiste Les Verts (1986) Case 294/83, [1986] ECR 1339
Public Prosecutor v Mohamed Ismail JUDICIAL REVIEW NO.: 43-20-03/2018
R.J. Reynolds Tobacco Holdings, Inc. v. Commission of the European Communities, a2006 E.C.R J-7795, 7837
Sal.org.sg. 2018, https://www.sal.org.sg/Portals/0/PDF%20Files/Speeches/Singapore%20Academy%20of%20Law%20-%20The%20Rule%20of%20Law%20as%20a%20Many%20Coloured%20Dreamcoat%20(Final).pdf?. Accessed 22 Nov 2018.
Uscourts.gov. 2018, https://www.uscourts.gov/educational-resources/educational-activities/overview-rule-law. Accessed 22 Nov 2018.

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