Rule of law, separation of powers and judicial review

Noor ‘Ashikin, Hamid and Nazli Ismail, Nawang and Abdul Majid Tahir, Mohamed (2018) Rule of law, separation of powers and judicial review. In: International Conference on Law and Globalisation 2018, 21 Oct 2018, UniSZA.

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Abstract

Judicial review is neither more nor less than the enforcement of the rule of law of executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and therefore, the interests of the individual are protected accordingly. Separation of powers describes the distribution of the executive, judicial and legislative responsibilities of a government among separate and distinct branches; checks and balances make sure that the three powers interrelate in a justifiable and balanced way. The separation of powers is an essential element of the rule of law, and is enshrined in the Constitution. Dicey’s rule of law and Montesquieu’s doctrine of separation of powers is served as a basis for judicial review in Malaysia. The purpose of this article is to examine the meaning of the rule of law as well as the extent to which the separation of powers can be used to advance rule of law values. The study is based on doctrinal research. In discussing the basis of judicial review some of the principles of judicial review developed by English courts and followed by Malaysian courts are discussed and its limitations are highlighted. It was found that judicial review in Malaysia was partly based on Dicey’s rule of law and Montesquieu’s doctrine of separation of powers and it is applied in Malaysia with certain variations and modifications.

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