Course: Constitution Law

Title: Independence of judiciary & ROL

Date: 2019- 8-5

2017 . Question no. 4

‘The independence of Judiciary is central to the Rule of Law’
Definition of ROL My own interpretation of ROL :
Own+Dicey
My own interpretation of ROL is everyone must obey the law and be governed by law
including govt. and the pp. Govt. hv to practice by obeying to the ROL in which laws
having standards of values which are certain, clear and transparent in meaning. ROL is
important in protecting the fundamental rights, freedom and human dignity of the pp, and
for the public order and full development of social economy, cultural, education of the
country. Therefore, the enforceability of the laws so important, if the laws r not enforce, it
will be mockery to ROL. Lastly, everyone is entitled to be protected by the same law, same
court, and the same system of law as everyone else.

Dicey define The definition of ROL by Dicey has 2 main ideas which the first is supremacy of law.
Second is Equality before the law.

For the first idea, ROL is supreme is means tat no one is above the law. And therefore, any
Arbitrary powers are abuse of power. Moreover, it means tat no one is punishable except
for a clear breach of law established in the ordinary legal manner before an ordinary court
of the land. While for the second idea is everyone is equal before the law. It in short means
tat everyone is subjected to the same law, irrespective of status or rank.

Definition of Independence of judiciary refers to the ability of the court to decide without interference of
Independence of the executive or legislative or anyone so tat the parties involved in a case, generally hv
Judiciary confidence tat the case will be decided by the court fairly and justly without fear.

Independence of judiciary is central to the ROL. This is because it’s importance as court
are the guardian of ROL. There’r 13 principles of ROL.
Minimum
standards of ROL;
How these 2 The first principle of ROL is there must be fundamental natural justice be followed which r
works? Audi alterem partem and nemo judex in causa sua. Audi alterem partem means all parties
shall be given rights to be heard,while nemo judex in causa sua is tat no person can judge in
a.How standards which he has an interest, which in other words judges must be fair, cannot rule against bias.
of ROL can be
achieved if hv
independence of In the case of removal of Tun Salleh Abbas in 1988, is he given the rights to be heard? In
judiciary the process of removing the judges, a Tribunal must be set up, is decision made is fair and
just? However, in this case is not adhere to the principle of ROL of fundamental natural
justice. However, the case of Tun Salleh Abbas is not ended. As in the case of Semenyih
b.How Jaya v Pentadbir Tanah Daerah Hulu Langat, the principle of fundamental natural justice is
independence of achieved, as it’s enforceable by the courts.
judiciary protect
the standards of
ROL in The second principle of ROL is tat the discretionary power of the organs of the govt.
determining the shouldn’t manipulate the laws. This is because everyone is equal before the law, be punish
effectiveness of for a distinct breach of law in order to achieve justice. However, in fact executive body of
ROL our govt. system powers is too dominance. Under Art.43(3) of FC, cabinet shall be
collectively responsible (as a unit)to parliament. Because of the provision Art.43(3)
provided by FC, there’s a fusion betw. Legislative and executive body which in other
means is common membership. As executive members are taken from the legislature,
where PM is from Dewan Rakyat in Parliament. Therefore, the legislative members can
always question executive in Parliament as legislative are the one who makes law. In other
words, PM can take control his parliament as ‘their members’ are not even dare to question
to PM.

The third principle of ROL is pp must be protected by ROL. Is our M’sian citizen be
protected by ROL? How effective it is for the judiciary to judge and decide fairly and
equally in the courts? After the constitutional amendment of A121 in 1988. A report of
Justice in Jeopardy : Malaysia 2000 is documented to look into the decision made by the
courts. After investigating the cases, it can be evident to found out that our court decided
the cases fairly, except cases that involved or in favour of the political interest, economic
matters. For the cases tat r not judge fairly the cases r cited, in Ayer molek cases, Annuar
Ibrahim cases.

The fourth principle of ROL is the process of making laws must be stable and known
publicly. In other words it means tat the transparency of the process making law is a must.
This can be evident in our recent constitutional amendment of lowering the voting age to
18. We as the citizens get to know this news from many sources such as newpapers, TV
and more electronics media. With the passing of the bill in Dewan Rakyat, the amendment
was approved by the Dewan Negara with two-thirds majority. For the next general election,
the Malaysians aged 18 are eligible to vote, as opposed to 21 before this, besides being
automatically registered as voters when they turn 18.

The Fifth principle of ROL is independence judiciary. If u got this, Independence judiciary
right, then u get the whole ROL right. Judiciary must be independent in their decision and
no fear. However, in Art.122(B) of FC, the appointment of judges by YDPA, acting on the
‘advice’ by PM, after consulting by the Conference of Rulers. I’m on the opinion tat this
provision may result in judiciary not independent. As PM have the power in appointing the
judges as provided in the provision of giving ‘advises’, this will result in PM will appoint
someone who are in favor of him. But if the PM is a fair and just and choose the right
person to be the judge, then it will be good for our government and our pp rights and
justice, but if it’s in a opposite way, the it will be vice versa. As Lord Acton said ‘power
tends to corrupt and absolute power corrupt absolutely’. I have a stand that we hv to look
into the provision to amend the law for the benefits of our pp in order to achieve justice, as
what’s constitutionalism is to limit the power abuse by ROL.
(I think I should change another better example for this principle)

The Sixth principle of ROL is the importance of freedom of speech, assembly and
association. In order for ROL to be enfore, it’s vital for the govt. to be able to identify their
mistakes of what’s wrong by listening to the pp who voice out or organized assembly.
However if the govt. actually suppress the freedom of assemble and association, the the
govt. is not actually with the ROL. From the source of ‘Bernama’, The Peaceful
Assembly(Amendment) Bill 2019 which sought/solicit/request to make street protests no
longer an offence was passed by the Dewan Negara. It was approved by Senate Deputy
President Datuk Seri Abd Halim after 18 senators participated in the debate session. This
amendment was important where the Peaceful Assembly 2012 should be amended to give
more space for freedom of speech and peaceful assemble in line with Art.10 of the FC. In
addition, this amendment also demonstrate tat Pakatan Rakyat(PH) government’s
commitment to balance the need for human rights and fulfilling pledges made in its 14th
 general election manifesto, which among others, was to abolish and amend law considered
harsh and severe. Our new govt PH had made it!
Furthermore, this was also in line with the seventh principle of ROL which is laws must be
fair, reasonable and just. It also shown tat it’s the effectiveness judiciary role in protecting
the standards of ROL.

The eighth principle of ROL is presumption of innocent. It means tat a person is innocent
until he’s proved guilty. However, the ISA of M’sia 1960 is obviously contrary to the ROL
as it allows a person to be detained without trial and the detainee has no rights to bring the
matter to be heard in the court. Beside that, during emergency declaration under A150 of
FC, the supreme law will be suspended by itself and it allows preventive detention.
Preventive detention law allows the govt to imprison a person based on suspicion for some
time without any criminal charge, while A149 of FC, allows Parliament to pass special
laws to stop and prevent any actual or threatened action by a large body of persons which
parliament believes to be prejudicial to public order, promoting hostility betw races,
causing disaffection against the state, causing citizens to fear organized violence against
them or property, or prejudicial to the functioning of any public services or supply. Such
laws suspend A5, A9, A10, and A13 of FC.

Conclusions
Lastly, Judiciary role is enhanced in our system where FC is the supreme law of the land
and where ROL can be achieved by the independence of judiciary.