Modern Definition of Rule of Law

Topics: Law, Human rights, Mahathir bin Mohamad Pages: 6 (2201 words) Published: November 16, 2012
Introduction to the Rule of Law & the modern definition. Rule of Law in the layman perspective is the principle that nobody is above the law and that every man’s act is subject to the law. The law referred, in our context, is the Malaysian Constitution which embodies the definition, expressly in many of its provisions. The constitution has the absolute power as against the arbitrariness and discretionary power of the government. This concept is commonly practiced in democratic countries. Rule of Law and Rule by Law should be distinguished as the latter is merely a government’s tool for the purpose of ruling and governing only. It is not a good approach as compared to the Rule of Law because law is made by the people, for the people. The concept used under Rule by Law could lead to abuse of power and unfairness especially in the context of human rights. The countries practicing Rule by Law are mostly the autocratic countries where the law is followed because they are forced to, not because they respect the supremacy of the law. According to De Smith, the concept of Rule of Law is one of open texture with wide range of interpretation, or in other words, flexible. Dicey propounded 3 principles of Rule of law in his writings, ‘Law of the Constitution’. However Dicey’s ideas are no longer in use as modern democratic society has emerged. It is only a fashion now to insert Dicey’s to retain the basic values of Rule of Law but it must be interpreted according to our modern needs of society. Dicey’s ideas on ROL includes that; - 1) Absolute supremacy of regular law. 2) Equality before the law 3) The Rule of Law includes the results of judicial decisions determining the rights of private persons. Internationally, the Rule of Law was even stated in the Preamble of the Universal Declaration of Human Rights adopted in 1948; where it was laid in the third paragraph that if the government does not want the people to revolt as their last resort to overcome tyranny by government, then it is important for the fundamental liberties of the people to be defended. The way to defend their liberties is through the Rule of Law.The UDHR has 30 articles which upholds human rights. An international meeting to discuss and make declaration on the fundamental principle of rule of law was held in 1959 named the International Commission of Jurists(ICJ). The ICJ is the modern revelation of Rule of Law that fits the present circumstances. They declared that the rule of law implies certain rights and freedom to create a conducive social, economic, education and cultural norms to achieve human dignity. Joseph Raz, in his writing, “Rule of Law & It’s Virtues” had outlined a set of characteristics, a total number of 13 virtues of rule of law. The most basic aspect is that the people must be protected by the rule of law, and nothing can happen without the sanction and permission of the law. Others include that the law must be prospective rather than retrospective; the law must be stable and certain and not changeable; the independence of judiciary has to be assured; the law must be fair, just and reasonable; the people should have the access to the courts; principles of natural justice concerning the right to be heard and the judge must not be bias should be observed and many other important characteristics. All 13 virtues should be complied and applied to make sure that the rule of law exists in a country practicing it. Ingredients of The Federal Constitution

The Rule of Law is interrelated with the principles of human’s rights and dignity and these can be seen in our own Federal Constitution. Part II of the Federal Constitution enumerates a number of fundamental liberties which devotes 9 articles altogether. Few are: 1)Liberty of the person 2)Protection against retrospective criminal laws and repeated trials 3)Equality 4)Freedom of speech, assembly, association 5) Freedom of religion and few more. The Parliament has made extensive use of emergency...
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