CONSTI LAW 1 – TUTORIAL 1

DEFINITION OF CONSTITUTION

Constitution is the fundamental and basic law of the land. It is the law in which all other laws
are based. It describes the manner in which the state is organised, government carried on and
justice administered. The Constitution sets out the basic framework or organisational
structure of the state. It lays down the structure of the government whether
monarchical or republican, parliamentary or presidential and federal or unitary. As the
nation’s foundation law, the Constitution defines the extent of powers of various organs of
the state which are the executive, legislative, judiciary and the limits put upon them. It also
describes their relationship with each other that emphasises on the doctrine of
separation of power and also their relationship with the citizens. The Constitution
can be classified into two which are written constitution and unwritten constitution
whereby both of these Constitutions have characteristics that are the exact opposite.

Characteristics of Written Constitution

Written constitution could be defined as a Constitution that is written in a single document in

which it is enacted and codified. This type of Constitution is being used in several countries
like in Malaysia and the United States. The creation of this Constitution derived from events
that shaped the constitution. For example, the constitution of the USA was created due to the
American Revolution meanwhile in Malaysia, it derives from the establishment of the Reid
Commission which subsequently leads to the Merdeka Agreement 1956. Written constitution
possesses a few characteristics such as having constitutional supremacy, implementing
judicial review and is partly rigid and partly flexible.

The first characteristic is that written constitution upholds constitutional supremacy. It is the
supreme and highest law of the land. It is the law in which all other laws must conform and
from which all other laws are derived. It is the ultimate source of legal authority. In
Malaysia, Pursuant to ARTICLE 4(1) OF THE FEDERAL CONSTITUTION, it
declares Malaysian Constitution as the supreme law of Federation. The Article further says
that any law which inconsistent with the Federal Constitution is void to the extent of the
inconsistency. Bearing in mind of this principle, the State Legislative Assembly should be
careful and strive to ensure that the law which it intends to pass does not derogate any
provision of the Federal Constitution. In my opinion, it is to say that State Legislative
Assembly should not exceed parameters laid down by the Constitution. This is illustrated in
the case of SURINDER SINGH whereby the power of a police commissioner to dismiss his
subordinates was held to be unconstitutional as this was against the provision of ARTICLE
135(1) of the existing Constitution. This shows that the Courts have the power to nullify
federal and state legislation if there is inconsistency with the Federal
Constitution.

The second feature of federal constitution is the availability of judicial review.

Judicial review is used to protect the Constitution’s supremacy. The courts are given the
power to invalidate executive and legislative actions on the ground of
unconstitutionality. Pursuant to ARTICLES 4(3), 4(4), 162(6) and 128 OF THE FEDERAL
CONSTITUTION, the Federal Constitution reaffirms this position by conferring power of the
Federal Court to determine the validity of federal as well as state laws from
constitutional point of view. This is shown in the case of MAMAT BIN DAUD whereby the
petitioners were charged under section 298A of the Penal Code for doing acts which may
cause disunity or prejudice harmony among persons professing the religion of Islam. It was
held that by examining Section 298A, a law on the subject matter of religion with respect to
which only the States have power to legislate under Articles 74 and 77 of the Constitution.
The section is a piece of “colourable legislation” in that it pretends to be a legislation in
public order, when in pith and substance, it is about Islamic religious offences. The
significance of this case is that it illustrates that in Malaysia there is no parliamentary
supremacy. The Constitution is supreme and the powers of the Federal Parliament and of the
State Assemblies are derived from and limited by the Constitution. Neither the federal nor the
state legislatures can make any laws as they please.

Thirdly, the written constitution is known to be partly rigid and partly flexible. In general, the
FC should not be fixed. The Federal Constitution should evolve through time and be
responsive to changing circumstances to ensure its relevance. However, the
amendment should not be too simple which may result in destroying the core values of the
constitution. Federal Constitution consists of certain salient features such as the special
position of Malays and Malay rulers and Malay as the national language. These features are
the bedrock of Malaysian constitution. If these provisions can be amended effortlessly, then
Malaysian constitution would lose its own identity. This can lead to instability and
insecurity. Hence, various methods are provided to amend the FC depending on
the nature of the amendment to preserve those core values and maintain its high status as the
supreme law of the Federation. The Parliament is not only entitled to enact ordinary law,
but also has the authority to amend the Federal Constitution. Pursuant to
ARTICLES 159 AND 161E (2) OF THE FC, the Parliament can amend the Federal
Constitution by passing a law (Act). There are four ways to amend the Federal Constitution.
This was explained by Raja Azlan Shah FJ in LOH KOOI CHOON V GOVERNMENT OF
MALAYSIA [1972] 2 MLJ 187 where he said ‘Our Constitution prescribes four
different methods for amendment of the different provisions of the Constitution’
which are by a simple majority [ART. 159 (4) OF THE FC], by a two-thirds majority [ART.
159 (3) OF THE FC], by a two-thirds majority plus the consent of the Conference of
Rulers [ART. 159 (5) OF THE FC], by a two-thirds majority plus the consent of the
Governor of Sabah and Sarawak [ART. 161E (2) OF THE FC]

CHARACTERISITICS OF UNWRITTEN CONSTITUTION

Unwritten constitution refers to those in which the rules and principles of the
constitution are scattered in the forms of statutes, charters, political conventions and
practices. The Constitution is not reduced to a single, comprehensive document. An
unwritten constitution bears the mark of many centuries of development. Its sources are
written as well as unwritten, legal as well as non-legal, formal as well as informal. Unlike a
codified Constitution, the unwritten constitution exists in an abstract sense. The
countries with unwritten constitutions are United Kingdom, Israel and New Zealand. The
characteristics of the unwritten constitution are the exact opposite of the written
constitution.

The unwritten constitution does not have constitutional supremacy but instead it upholds
parliamentary sovereignty. This has two distinct political advantages. FIRSTLY, there are no
hurdles in the way of the elected and representative legislature to enact, amend and repeal
laws. Many Constitutions are notoriously rigid and stand in the way of change even when the
felt necessities of the times demand reform. Hurdles in the path of an elected and
representative legislature are seen by some as undemocratic.

The SECOND advantage is there is no judicial review of parliamentary laws

on constitutional grounds. The power of the courts to adjudicate on the legality
of

parliamentary enactments actually pits the courts against Parliaments. It gives way to the
executive to pack the courts with executive-minded jurists. In Malaysia, headlong clashes
between the executive and the judicial branches of the state have left the judiciary
deeply wounded. Meanwhile, the United Kingdom’s system of supreme Parliament
with absence of judicial review of parliamentary enactments avoids clashes between
Parliaments and the courts. In the long range, this is conducive to the
preservation of judicial independence.

THIRDLY, constitution institution and structures are subject to the will of the
transient parliamentary majority. There is FLEXIBILITY about constitutional
arrangements. Change and growth are easily possible unlike the written constitution
which provides legal and political hurdles in the way of those who wish to tamper with basic
legal structures. This is a matter of great significance to a plural state like Malaysia where
the constitutional compact represented a social contract and a series of
painstakingly worked out compromises between the Rulers and the rakyat. Articles 159 and
161E of the Malaysian Constitution entrench these solemn pacts and impose hurdles in the
path of any parliamentary majority that wishes to play easy and loose with the basic law.

Advantages and disadvantages

WRITTEN CONSTITUTION

1. Easily accessible & certain as it is codified into a single document. The

written constitution is very clear and precise. It is free from doubts and
ambiguity. As a written constitution is clear, the ruler (government) cannot exercise powers
arbitrarily.

2. The written constitution protects the fundamental rights of the individual,

fundamental rights are very essential for the liberty of the individual, and rights are part of a
written constitution. It will be unconstitutional to deprive individual of any of these rights.
The written constitution protects the interests of minorities.

a. Various methods are provided to amend the FC depending on the nature of the amendment
to preserve those core values and maintain its high status as the supreme law of the
Federation. The Parliament is not only entitled to enact ordinary law, but also has
the authority to amend the Federal Constitution. Pursuant to ARTICLES 159 AND 161E
(2) OF THE FC, the Parliament can amend the Federal Constitution by passing a law (Act).
There are four ways to amend the Federal Constitution. This was explained by Raja Azlan
Shah FJ in LOH KOOI CHOON V GOVERNMENT OF MALAYSIA [1972] 2 MLJ 187
where he said ‘Our Constitution prescribes four different methods for amendment of the
different provisions of the Constitution’ which are by a simple majority [ART. 159 (4) OF
THE FC], by a two-thirds majority [ART. 159 (3) OF THE FC], by a two-thirds majority plus
the consent of the Conference of Rulers [ART. 159 (5) OF THE FC], by a two-thirds majority
plus the consent of the Governor of Sabah and Sarawak

[ART. 161E (2) OF THE FC].

3. Availability of Judicial Review . (Art 128 + Mamat bin Daud)

Safeguard against Parliament overstepping its legislative powers by process of

Judicial Review. Judicial review is used to protect the Constitution’s supremacy. The courts
are given the power to invalidate executive and legislative actions on the ground of
unconstitutionality. Pursuant to ARTICLES 4(3), 4(4), 162(6) and 128 OF THE FEDERAL
CONSTITUTION, the Federal Constitution reaffirms this position by conferring power
on the Federal Court to determine the validity of federal as well as state laws from
constitutional point of view. This is shown in the case of MAMAT BIN DAUD whereby the
petitioner was charged under section 298A of the Penal Code for doing acts which may
cause disunity or prejudice harmony among persons professing the religion of Islam.
It was held that by examining Section 298A, a law on the subject matter of religion with
respect to which only the States have power to legislate under Articles 74 and 77 of the
Constitution. The section is a piece of “colourable legislation” in that it pretends to be a
legislation in public order, when in pith and substance, it is about Islamic religious offences.
The SIGNIFICANCE OF THIS CASE is that it illustrates that in Malaysia there is no
parliamentary supremacy. The Constitution is supreme and the powers of the Federal
Parliament and of the State Assemblies are derived from and limited by the Constitution.
Neither the federal nor the state legislatures can make any laws as they please.

Demerits of Written constitution:

1. A written constitution cannot easily cope with the changes taking place in time. With the
passage of time changes take place in the condition of a country. The constitution needs
revision or modification to deal with such changes, a written constitution, being rigid, is not
easily amendable to necessary modification or revision. Less flexible. Rigidity – difficult to
make changes to adapt to current situations in the country. (Art 159 + Loh Kooi Choon)

a. Pursuant to ARTICLES 159 AND 161E (2) OF THE FC, the Parliament can amend the
Federal Constitution by passing a law (Act). There are four ways to amend the Federal
Constitution. This was explained by Raja Azlan Shah FJ in LOH KOOI CHOON V
GOVERNMENT OF MALAYSIA [1972] 2 MLJ 187 where he said ‘Our Constitution
prescribes four different methods for amendment of the different provisions of the
Constitution’ which are by a simple majority [ART. 159 (4) OF THE FC], by a two-thirds
majority [ART. 159 (3) OF THE FC], by a two-thirds majority plus the consent of the
Conference of Rulers [ART. 159 (5) OF THE FC], by a two-thirds majority plus the consent
of the Governor of Sabah and Sarawak

[ART. 161E (2) OF THE FC]

b. Less able to deal with emergency situations/ contingencies

2. When a written constitution fails to cope with the march of time and consequent changes in
the condition of the country, the people, being angry, may revolt against the government.

UNWRITTEN CONSTITUTION

1. Flexibility

The provisions in the Constitution can be easily amended & repealed. This means that it can
be changed with great ease to deal with arising situations. No special procedures are required
to change it. All that is needed in order for the practise to change is that the parliament agrees
that a change is necessary. There is a suitable entrenchment given democratic consensus and
which can be modified easily. This is the best fitted type of constitution in reflecting a world
that is changing as well as changing circumstances. Changes can be made quickly to adapt to
current day and meets the needs of the people at that particular moment. This flexibility is by
for makes an uncodified constitution impressive. It can serve a country well
compared to a codified one.

2. Able to respond quickly to emergencies/ contingencies.

Disadvantages of Unwritten Constitution

1. Human Rights does not constitutionally being protected. They are contained in
ordinary laws which can be amended & repealed by the legislative body through ordinary
procedures. There is no judicial review process to safeguard against legislative excess
Fundamental law of the land because it shapes the beginning of things, governance. History
shows that the constitution is needed for a society that needs reform.

Sets up the government and its agencies

Constitution combines rules and non legal rules (customs, practices and constitutional
conventions)

Garantiste constitution – Sartori’s books say there’s 3 types of constitution

Functions of conti

1. Set the govenrmnet, give and limit power so that does not infringe rights and liberties
of ppl

Ideals of constitutionalism

- Gov can perform, but not OP. how? Through checks and balances/rule of law/consti
supremacy = idea of a limited government

Though Malaysia uses written constitution, but we hv constitutional conventions based on

non legal matters such as practice…

KC says what are the reasons and functions

De Smith tries to give the most essential contents in any consti. Will also find guarantees of
freedom. Ideological pronoucements are in preambles.

Marbury – tries to explain what is a consti by laying its characteristics. ‘Permanent’ does not
mean not changed, but preamble

Explain its (i) function (ii) content and (iii) characteristics to s/o asking.

Next week 2 and 3.