ULUP2024

RULE OF LAW
PM DR HASLINDA MOHD ANUAR
SENIOR LECTURER
SCHOOL OF LAW
Introduction & definition
 Aristotle: it was preferable to have government by laws rather
than government by men
 In that sense, government must be conducted according to
law, and not according to arbitrary whims and fancies of the
government.
 ‘The rule of law” means literally the rule of the law.
 In broadest sense - People should obey the law and be ruled
by it.
 In political & legal theory – the government shall be ruled by
the law and subject to it.
Dicey’ theory
 Rule of law, which forms a fundamental principles of the
constitution, has three meanings –
1. “The absolute supremacy or predominance of regular law
as opposed to the influence of arbitrary power, and
excludes the existence of arbitrariness, or prerogative, or
even of wide discretionary authority on part of the
government.
 “Englishmen are ruled by the law, and by the law
alone; a man may with us be punished for a breach of
law, but he can be punished for nothing else.”
Dicey’ theory
2. “Equality before the law, or the equal subjection of all classes to
the ordinary law of the land administered by the ordinary law
courts;
 excludes the idea of any exemption of officials or others
from the duty of obedience to the law which governs other
citizen or from the jurisdiction of the ordinary tribunals;
 “there can be with us nothing really corresponding to the
‘administrative law’ (droit administratif) or the
‘administrative tribunals’ of France. The notion which lies
at the bottom of the ‘administrative law’ known to foreign
countries is, that affairs or disputes in which government or
its servant are concerned are beyond the sphere of the civil
courts and must be dealt with by special and more or less
official bodies. This idea is utterly unknown to the law of
England, and indeed is fundamentally inconsistent with out
Dicey’ theory
3. “The ‘rule of law’ may be used as a formula for expressing
the fact that with us the law of the constitution, the rule
which in foreign countries naturally form part of a
constitutional code, are not the source but the consequence
of the rights of individuals, as defined and enforced by the
courts; that, in short, the principles of private law have with
us been by the action of the courts and parliament so
extended as to determine the position of the Crown and of its
servants; thus the constitution is the result of the ordinary
law of the land.”
Dicey’ theory
 Basically the rule of law, according to Dicey, demands –
1. That all actions of public officials be sanctioned by law;
and that all public officials be answerable to the ordinary
courts for any unlawful acts;
2. That there should be no wide or arbitrary discretion
conferred on public officials;
3. That all citizen are entitled to a fair trial before an
independent tribunal; and
4. That all citizen are entitled to be treated equally before the
law
 When Dicey formulated the concept of rule of law, he rejected
the concept of ‘administrative law’, which to him denoted a
system of law which protected public officials from scrutiny
by the ordinary courts.
The concept of rule of law
 First - The administration does not enjoy any power outside the law.
 Rule of law means absence of arbitrary power

 It ensures that no one can be deprived of his right, liberty or

property without the authority of law
 It also ensures that judicial review of administrative action as court
seeks to ensure that the administration does not exceed its legal
powers.
 Second – distinction should be drawn between arbitrary and
discretionary powers
 Officials can have discretionary powers but not arbitrary power

 Discretionary power should not be too wide and unrestrained so as

to become arbitrary.
The concept of rule of law
 Third – administrative law is not to be regarded as retarding,
but instead as promoting the rule of law insofar as it seeks to
draw the balance between public power and private interest,
provides for a control-mechanism over the administration and
a redressal mechanism when an individual gets hurt by the
administrative action, and thus ensures exercise of
administrative powers in lawful manner.
 Fourth – creation of tribunal is not inconsistent wit the rule of
law insofar as they are used to control administrative powers
and provide quick justice to individuals
Application of rule of law in Malaysia
 Article 5 of FC – Liberty of the person
 A 5(1) – no person shall be deprived of his life or personal
liberty save in accordance with law
 A 5(2) – where complaint is made to a High Court or any judge
thereof that a person is being unlawfully detained the court shall
inquire into the complaint and, unless satisfied that the detention
is lawful, shall order him to be produced before the court and
release him.
 A 5(3) – where a person is arrested he shall be informed as soon
as may be of the grounds of his arrest and shall be allowed to
consult and be defended by a legal practitioner of his choice.
 A 5(4) – where a person is arrested and not released he shall
without unreasonable delay, and in any case within twenty four
hours (excluding the time of any necessary journey) be produced
before a magistrate and shall not further detained in custody
without the magistrate’s authority
Application of rule of law in Malaysia
 Assa Singh v Mentri Besar, Johore [1969] 2MLJ 30
 The applicant had been arrested and detained by the order of the
Mentri Besar of Johore under the Restricted Residence
Enactment in exercise of his powers purported to be delegated to
him by the Minister of Interior and Justice. It was argued that in
this case that the Enactment has no provision;
 For informing the person concerned of the ground of his arrest
and detention
 For presenting him before a magistrate or on enquiry at which
the detained person could meet the allegations against him
 For review
 For limitation of the period of detention
Application of rule of law in Malaysia
 Because of these reasons it was submitted that the provisions
of the Enactment were inconsistent with the provisions of Art
5 and 9 of the Constitution.
 Held:
 The Enactment is a law relating to public security therefore
its provisions are not inconsistent with Art 9 of the
Constitution
 The Enactment does not have provisions similar to those of
clause (3) and (4) of art 5 of the FC but this does not make
it unconstitutional; despite such inconsistency with the
Constitution the Enactment is in force, but must be applied
with such adaptations as may be necessary to bring it into
accord with the Constitution
Application of rule of law in Malaysia
 The provisions of clauses (3) and (4) of art 5 of the FC
must therefor be read into the provisions of the Enactment
 The delegation by the Minister of his powers under the
Enactment is a valid one and the Mentri Besar can therefore
validly exercise the powers and duty of the Minister under
section 2 of the Enactment
Application of rule of law in Malaysia
 Mohamed Ezam bin Mohammed Noor v Ketua Polis Negara
& Ors [2002] 4 CLJ 309
 Siti Noorma Yaakob FJ, “a complaint by a person while
under lawful detention that he has been refused access to
counsel contrary to the second limb of art 5(3) will not
have the effect of rendering his detention unlawful..it would
be otherwise if for example there has been a failure to
inform the person arrested of the grounds of his arrest,
contrary to the first limb of art 5(3) and such failure would
render his subsequent detention unlawful”.
Application of rule of law in Malaysia
 Chong Kim Loy v Timbalan Menteri Hal Ehwal Dalam
Negeri, Malaysia & Anor [1989] 3 MLJ 121
 Edgar Joseph Jr J, “the right to be informed, at earliest
possible moment, not in detail and not necessarily in strict
legal terminology, but only in general terms, by virtue of
that power he is being arrested and of the grounds of his
arrest. But enough must be made known to him to afford
him the opportunity of giving explanation of any
misunderstanding”
Application of rule of law in Malaysia
 Ooi Ah Phua V OIC, Criminal investigation, Kedah/Perlis
[1975] 2 MLJ 198
 The appellant, the father of the subject, instructed solicitors
and counsel attempted to see the subject but was
unsuccessful. Subsequently, the appellant applied for a writ
of habeas corpus and it was alleged that
 The right of the subject to consult and be defended by
counsel of his choice commenced immediately after his
arrest
 This right is an unqualified right and the denial of this
right by the police had rendered the detention unlawful.
Application of rule of law in Malaysia
 The application having been dismissed in the HC, the
appellant appealed to the FC.
 FC: “The right of a prisoner to have access to legal

advice must of course be subject to such legitimate

restrictions as may be necessary in the interest of justice
in order to prevent undue influence with the course of
investigation. For instance a legal adviser cannot claim
to have interviews with a prisoner at any time he
chooses…. But in that case the police must of course be
prepared to support their action on substantial
grounds”.
Application of rule of law in Malaysia
 Ramli bin Salleh v Inspector Yahaya bin Hashim [1973] 1
MLJ 54
 Held : it was for the police to prove that affording the right
counsel would impede investigation. The police must not
delay or obstruct interview on arbitrary or fanciful grounds
and that where the right is granted the consultation must be
held outside the hearing of police although it may be held
within their sight.
Application of rule of law in Malaysia
 Article 6 of FC – Slavery and forced labour prohibited
 A 6(1) – No person shall be held in slavery

 A 6(2) – all forms of forced labour are prohibited, but

Parliament may by law provide for compulsory service for
national purposes
 A 6(3) – Work incidental to the serving of a sentence of
imprisonment imposed by a court of law shall not be taken
to be forced labour within the meaning of this Article.
Application of rule of law in Malaysia
 Article 7 of FC – Protection against retrospective criminals
and repeated trials
 A 7(1) – No person shall be punished for an act or omission
which was not punishable by law when it was done or
made, and no person shall suffer greater punishment for an
offence than was prescribed by law at the time it was
committed
 A 7(2) – A person who has been acquitted or convicted of
an offence shall not be tried again for the same offence
except where the conviction or acquittal has been quashed
and retrial ordered by a court superior to that by which he
was acquitted or convicted
Application of rule of law in Malaysia
 PP v Mohamed Ismail [1984] 2 MLJ 219
 A new law which removed the judge’s discretion was
passed on the day the accused was convicted. Under the
amended law the punishment was mandatory death
sentence. He was however tried under the old Dangerous
Drug Act 1952 which gave the trial judge discretion over
the range of punishments prescribed for drug trafficking.
Application of rule of law in Malaysia
 Fan Yew Teng v PP [1975] 2 MLJ 235
 Held : As the previous trial was declared a nullity the
appellant could not invoke art 7(2). Lee Hun Hoe CJ, “as
the appellant ‘s earlier trial was declared a nullity…
therefore he is not a person who has been convicted of an
offence within the meaning of clause (2) of article 7. In
other words, as the trial was a nullity there was in fact no
trial.”
Application of rule of law in Malaysia

 Article 8 of FC – Equality
 A 8(1) – All persons are equal before the law and
entitled to the equal protection of the law
Application of rule of law in Malaysia

 Datuk Haji Harun Idris v PP [1977] 2 MLJ 155

 In these cases the accused were originally charged in the
sessions court. The cases were transferred to the HC on
certificates issued by the PP under the provisions of section
418A of the CPC. Counsel for the accused contended that
section 418A of the CPC violated art 8(1) of the FC and
was therefore void and unconstitutional.
 Abdoolcader J : the provision in art 8 has acquired a certain
amount of sanctity and this is even applicable to laws
enacted under art 149(1). In this case the power of the PP to
transfer cases from the lower courts to the high court under
the CPC was held to be unconstitutional.
Application of rule of law in Malaysia
 However on appeal to the FC this was reversed and Suffian
LP laid several principles pertaining to equality under art 8
 Equality provision is not absolute which means that it
does not mean all laws must apply uniformly to all
persons in all circumstances everywhere
 Equality provision is qualified as exemplified by art 8(5)
and 153
 The prohibition on unequal treatment applies not only to
the legislature but also to the executive as can be seen
from the words ‘public authority’ in art 8(4) and
‘practice’ in art 8(5)(b)
Application of rule of law in Malaysia
 Art 8 envisages that there may be lawful discrimination as
specified by art 8(5) such as muslim as opposed to non-
muslims, residents in particular states as opposed to others and
Malay and natives of Borneo as opposed to others.
 The first question to ask is whether the law is discriminatory
and if it is not it is good law but if it is discriminatory one
should see whether such discrimination falls within the
exceptions allowed by the constitution or judiciary
 The doctrine of classification is acceptable subject in the sixth
principle above and that the courts retain the power to examine
the reasonableness of classification by the legislature
 In cases where the laws is silent the procedures that are more
drastic and prejudicial are constitutional
 There is a presumption that an impugned law is constitutional
Application of rule of law in Malaysia
 PP v Tengku Mahmood Iskandar & Anor [1973] 1 MLJ 128
 This was an appeal against sentence. The respondent had
been convicted on charges of causing hurt. The learned
president of the session court had made an order, having
taken into consideration of the fact that the respondent was
a prince of the Ruling House of Johore.
 Held: the sentences imposed by the lower court did not
reflect the gravity of the offence. The high court substituted
a more severe sentence for a lesser one imposed by the
court.
Application of rule of law in Malaysia
 Article 9 of FC – Prohibition of banishment and freedom of
movement
 A 9(1) – No citizen shall be banished or excluded from the
Federation
 A 9(2) – Subject to clause (3) and to any law relating to the
security of the Federation or any part thereof, public order,
public health, or the punishment of offenders, every citizen
has the right to move freely throughout the federation and
to reside in any part thereof.
Application of rule of law in Malaysia
 Article 10 of FC – Freedom of speech, assembly and
association
 A 10(1) – Subject to clause (2), (3) and (4) –

 (a) every citizen has the right to freedom of speech and

expression
 (b) all citizen have the right to assemble peaceably and
without arms
 (c) all citizens have the right to form associations
Application of rule of law in Malaysia
 Madhavan Nair v PP [1975] 2 MLJ 264
 The applicant had been charged with contravention of a
condition of a licence to convene a public meeting, that is,
that no reference should be made to the results of the MCE
examination and the status of Bahasa Malaysia as the
national language of the federation. Counsel for the
applicant had argued that the condition imposed was ultra
vires art 10 of the FC. The learned magistrate decided to
refer the matter to the HC.
Application of rule of law in Malaysia
 Held:
 If the condition imposed had contravened art 10, it was clear that
no such condition could be imposed
 In this case, however, the condition was not in contravention of
art 10 and therefore the police had powers under the Police Act to
impose the condition.
Application of rule of law in Malaysia
 Chai Choon Hon v Ketua Polis Daerah, kampar [1986] 2 MLJ
203
 The restriction imposed by the police on right to peaceful
assembly under police Act 1967 was challenged.
 Abdoolcader SCJ : restriction on the number of speakers by
the police in issuing the permit was void as it was
unreasonable
Application of rule of law in Malaysia
 Cheah Beng Poh v PP [1984] 2 MLJ 225
 42 lawyers were charged for taking part in what was called
unlawful assembly.
 High court: public meetings or processions, even if they are
spontaneous, is unlawful if it takes without police permit

 Datuk Yong Teck Lee v PP [1993] 1 MLJ 295

 Syed Ahmad Idid J: the duty to satisfy the meeting or
procession would not be prejudicial to security is on the
applicant
Application of rule of law in Malaysia
 Dewan Undangan Negeri Kelantan & Anor v Nordin bin Salleh &
Anor [1992] 1 MLLJ 697
 The respondents were elected member of the Kelantan State
Legislative Assembly (DUN) at a general election. However
pursuant to Art XXXIA of the Kelantan Constitution, the DUN
passed a resolution that the respondents, who had resigned from
the political party for which they stood and were elected in the
elections, had ceased to ADUN and their seats were declared
vacant. A by-election was held in the constituencies concerned,
wherein the respondents stood for election but they were
defeated. Subsequently the respondent brought an action in the
HC seeking a declaration that the article of Kelantan Constitution
was invalid, null and void as contravened art 10(1) of the FC.
The HC granted the declaration in favour of the respondents.
Application of rule of law in Malaysia
 The appellants appealed and argued that the HC had acted
without jurisdiction in further granting the declaration that the
respondents are and continue to be lawful ADUN. None of the
winning candidates even the election commission ha been made
parties to the proceeding even though they were directly affected
and it was contended that they were thereby been denied the
opportunity of being heard so that there had been a breach of the
rules of natural justice
 Held: a provision in a state constitution which effectively sought
to prevent members of the state assembly from switching parties
was held to be unconstitutional for it was, tantamount to denying
the right under art 10(1)(c).
Application of rule of law in Malaysia
 Article 11 of FC – Freedom of religion
 Article 12 of FC – Rights in respect of education
 Article 13 of FC – Rights to property