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DICEY'S RULE OF LAW FORMS PART OF THE BASIC STRUCTURE OF THE FEDERAL CONSTITUTION

Posted by Hakimi Abdul Jabar on March 14 2019, 16:24pm

 

DICEY'S RULE OF LAW FORMS PART OF THE BASIC STRUCTURE OF THE FEDERAL CONSTITUTION

 

The Federal Court in Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & Ors And Other Appeals [2018] 3 CLJ 145 had decided that the Federal Constitution's basic structure included judicial powers such as judicial review, the principles of separation of powers (regarding the 3 branches of government), the Rule of Law and protection of minorities. Parliament cannot remove such features by amending the Constitution.

 

By its reference to the Rule of Law, by extrapolation the prior decision of the Federal Court in Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 3 CLJ 507 which expounded the fact that the equality doctrine entrenched in our Article 8(1) in reality is drawn from Dicey’s Rule of Law must truly be pertinent and must shed light to the very fact that the same Dicey's Rule of Law forms part of the basic structure of the Malaysian Constitution.

 

Equal Justice is an aspect of the Rule of Law: Albert V Dicey, Introduction to the Study of the Law of the Constitution, (McMillan, 7th ed, 1908) 198; William S Holdsworth, A History of English Law (Little, Brown, 1938) vol X, 649.

 

The foundational nature of the principle of equality before the law has been clearly described by the High Court of Australia in its judgment in Green v The Queen (2011) 244 CLR 462 at 472 :
"Equal justice" embodies the norm expressed in the term "equality before the law".  It is an aspect of the rule of law.

 

The above authorities lend factual credence to the fact that Dicey's Rule of Law forms part of the basic structure of our Federal Constitution.

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