Many are of the opinion I should not comment on religion because I am not learned enough in matters of religion to be able to comment. I suppose lawyers would also argue that I should not comment on matters of law since I never went to law school.
I also do not know how to cook. But I can damn well tell you whether the rendang and ketupat taste delicious or are rancid, notwithstanding the fact I could never cook a decent rendang even if my life depended on it. And, in that same context, I can’t sing a single note but I can certainly tell you whether the song is pleasant to listen to or is torturous to my ears.
Anyway, while the majority of us never went to law school, we can certainly ‘see’ injustice when we see it. We do not need for injustice to bite us on our sorry behinds to understand what injustice means.
No doubt, those who walk in the corridors of power would scream that Malaysia has laws and, therefore, as law-abiding citizens, we must respect the law. And if we do not ‘respect the law’ then we should face a future in jail.
Sure, Malaysia has laws. So does Afghanistan. Should we, therefore, not also respect the laws of Afghanistan instead of criticising the Talibans when they stone to death a teenage girl who was gang-raped because of her crime of ‘immoral behaviour’? Who are we to decide that this is wrong? It is, after all, the legitimate laws of that country, just like Malaysia too has ‘legitimate’ laws which the powers-that-be do not want us to criticise.
They may be so-called ‘legitimate’ laws. And they are ‘legitimate’ because the laws were passed by Parliament. But this just means Malaysians are being subjected to rule by law. There is a difference between rule by law and rule of law.
We shall continue this discussion later. However, before we do, first of all understand what is meant by rule of law. And once we understand this we can then enter into an unemotional and intelligent discussion as to why some Malaysian laws, although they may have been legally passed by Parliament, need to be opposed. The legality of these laws is just one aspect. The more important point that needs to be debated is whether these laws violate the Federal Constitution of Malaysia, which thereby subject Malaysians to rule by law instead of rule of law.
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Rule of law - Definition
The rule of law implies that government authority may only be exercised in accordance with written laws, which were adopted through an established procedure. The principle is intended to be a safeguard against arbitrary rulings in individual cases.
Generalities
Perhaps the most famous exposition of the concept of rule of law was laid down by Albert Venn Dicey in his Law of the Constitution in 1895:
When we say that the supremacy or the rule of law is a characteristic of the English constitution, we generally include under one expression at least three distinct though kindred conceptions. We mean, in the first place, that no man is punishable or can be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. ...
... every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. [Appointed government officials and politicians, alike] ... and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person.
-- Law of the Constitution (London: MacMillan, 9th ed., 1950), 194.
Thus, those who make and enforce the law are themselves bound to adhere to it.
The concept "rule of law" is generally associated with several other concepts, such as:
Nullum crimen, nulla poena sine praevia lege poenali - No ex post facto laws
* Presumption of innocence - All individuals are "innocent until proven otherwise"
* Double jeopardy - Individuals may only be punished once for every specific crime committed. Retrials may or may not be permitted on the grounds of new evidence. See also res judicata.
* Legal equality - All individuals are given the same rights without distinction to their social stature, religion, political opinions, etc. That is, like Montesquieu would have it, "law should be like death, which spares no one."
* Habeas Corpus - A Latin term meaning "you must have the body". It is a component of the Magna Carta which ensures the right of the person being arrested to know what evidence the arresting body has against them. A is a court order that commands the custodial authority to present the arrested/detained person before a judge or court to determine the validity of the arrest. Its purpose is to help curb unlawful detainment by ensuring that anyone arrested or detained is entitled to a court appearance within a reasonable amount of time (normally within 48 hours of the arrest).
The concept of "rule of law" per se says nothing of the "justness" of the laws themselves, but simply how the legal system upholds the law. As a consequence of this, a very undemocratic nation or one without respect for human rights can exist with or without a "rule of law", a situation which many argue is applicable to several modern dictatorships. However, the "rule of law" is considered a pre-requisite for democracy, and as such, has served as a common basis for human rights discourse between countries such as the People's Republic of China and the West.
The rule of law is an ancient ideal of first posited by Aristotle as a system of rules inherent in the natural order. It continues to be important as a normative ideal, even as legal scholars struggle to define it. The concept of impartial rule of law is found in the Chinese political philosophy of Legalism, but the totalitarian nature of the regime that this produced had a profound effect on Chinese political thought which at least rhetorically emphasized personal moral relations over impersonal legal ones. Although Chinese emperors were not subject to law, in practice they found it necessary to act according to regular procedures for reasons of statecraft.
In the Anglo-American legal tradition rule of law has been seen as a guard against despotism and as enforcing limitations on the power of the government. In the People's Republic of China, the discourse around rule of law centers on the notion that it will ultimately enhance the power of the state and the nation.
While there is a consensus both in China and the West that rule of law is a good thing, this is not a universally accepted truth. Some communist governments, including China during the Cultural Revolution, have been at least partially negative toward the idea of rule of law, arguing that it interferes with class struggle. Furthermore, rule of law is opposed in many authoritarian and totalitarian states. The explicit policy of those governments, as evidenced in the Night and Fog decrees of Nazi Germany, is that the public should be constantly in fear of the government.
http://www.wordiq.com/definition/Rule_of_law
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The above definition of rule of law shows that Malaysia does not adhere to certain principles like no double jeopardy (where you cannot be punished twice for the same crime), no detention without trial (where you need to be put on trial and be found guilty before you can be sentenced to jail), your right to Habeas Corpus (where you must be produced in court and be told of the crime you are alleged to have committed), your right to legal representation, your right to defend yourself in court, and whatnot. The fact that the laws are passed by Parliament and therefore this allows the Malaysian government to violate your fundamental rights do not make these laws right. And the fact that the laws also violate the Federal Constitution makes it even worse.
In fact, there are certain Articles in the Federal Constitution of Malaysia that are ambiguous because they violate or contradict other Articles. While one Article says you can’t do this, another Article says you can. And this was how the unconstitutional laws were passed and made ‘legal’.
In the past, it was believed that the King of England was appointed by God. Therefore, if you criticise the King, this is considered seditious because then you are then criticising God. And if you are ruled to have acted in a seditious manner then the government will cut off your ears. This was the law. So it was ‘legal’ to cut off the ears of those who criticised the King. But that does mean it was right even though at that time it was ‘legal’.
Read what Datuk Zaid Ibrahim has to say about the issue of rule of law:
There are many who see the promotion of human rights as a threat to order and security and inconsistent with stability and public order. Others see it as detracting from more pressing economic issues which, they argue, should take precedence. Some have argued that because we have different cultural values, the concept needs to be modified and that it is necessary for us to be very selective of the kind of human rights we can have.
But let us be clear. Human rights do not challenge social stability and development. On the contrary, human rights promote these ideals by recognising the value and importance of each and every individual in society. What human rights do challenge is authoritarianism.
Human rights are not and have never been a luxury wish list; they are not about promoting the rights of the individual without regard to the rights of the community. They are not about promoting selfish individualism as some would have us believe. They are about treating people with respect, with due regard to the due process of the law.
If we have no capacity to respect the dignity and the rights of one individual, then be assured that we will also have no capacity to respect the dignity and the rights of many.
The rule of law has no meaning if judges are not prepared to enter the fray in the struggle for the preservation of human rights and fundamental liberties. Supreme Court judges in other jurisdictions have done so time and again. Though it is far less difficult to accommodate the will of the government, that must be resisted at all costs, particularly where justice so demands. Only then can we say that Malaysia is grounded on the rule of law.
To all our judges I say discard your political learnings and philosophy. Stick to justice in accordance with the law. As Lord Denning reminded us, justice is inside all of us, not a product of intellect but of the spirit.
Your oath is to the Constitution; shield yourself behind it. Without your conviction, democracy is but a concept.
Datuk Zaid Ibrahim
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