Introduction

WHAT IS General - system that establish the rules and principles by which an organisation is
CONSTITUTION? governed

Legal - a set of rules and principles which define the nation and determine the
relations between different institution and components of the government

WHAT IS
CONSTITUTIONAL ➔ Branch of laws which concerns the constitution of a state - concerns
LAW? with the relationship between individual and the state and include
those laws which regulate the structure and functions of the principal
organs of the government.
➔ Supreme law of the land and has superior power over other laws
➔ Fundamental and basic of the law of the land
➔ Structural level - the constitution supplies the architecture’s master
plan for the nation.
➔ creates the basic organs of the state
➔ defines its limits and powers and functions of those organs and their
relationship.
➔ Ideological level - the constitution supplies philosophical fundamental
values on which the society is founded

PURPOSE
❖ Create and define power of governmental institutions

➢ -It creates the basic organs of the state and defines its limits and
powers and
functions of those organs and their relationship.- executive, legislature,
judiciary
➢ -It spells out how the bodies are constitute and regulated

❖ Regulates relationship between organs of government(executive,

legislature, judiciary) / between institution of the state

➢ executive, legislature, judiciary act independently + principle of check and

balance
❖ Regulate relationship between government and the people

➢ defines the relationship between and the government and

establishes the broad
rights of individual citizens
➢ declares or protect rights of the people
➢ the rights cannot be taken away or infringed even by the
government.
➢ At ideological level the constitution supplies philosophical
fundamental values on
which the society is founded.
➢ part II fundamental liberties

❖ Regulate relationship between the governments

○ ➢ In a Federal countries there are many governments-

○ ➢ The FC divides power between the federal government and
the state government
○ ➢ Both federal and state government are bound by the
constitution. Any issue or
conflict between the government shall be resolved in
accordance with constitution.

❖ proclaim identity and inculcate value

➢ -Constitution express the identity and values of the community

➢ -May define national flag, anthem
➢ -Make proclamations about the values, history and identity of the
nation( multi-
racial-united nation which includes everybody) tolerate with everybody
➢ Article 3 / 152- national language- to unite people- malay language
TYPES OF
CONSTITUTION:

WRITTEN /
UNWRITTEN

Written

➔ Body of rules whereby the state concerned wholly or at least largely to

be found in one written document
➔ Written law - law passed by legislature/ parliament
➔ The constitution is written law embodied/gazetted in a single legal
document
➔ Enact specific date by particular body
➔ 3 types – Rigid, Flexible, Combo
➔ Constitution has dominant power
➔ Judiciary has outspread power
➔ Federal power - the powers are distributed between central and state
governments.
➔ Emerged due to drastic changes of the system of a particular
government such as independence, revolution, creation of a new
state, reconstruction after a war.
➔ Long and detail - elaborate in detail the principles and definitions
within the constitution
➔ Eg: India, USA, Japan, Canada, Sri Lanka, Germany, Switzerland

Unwritten

➔ It is where the main laws relating to the government are not compiled
in one document and may not even be written
➔ No single written legal document
➔ evolves gradually as well as it is updated with a passage of time.
➔ Found in the form of constitutional conventions, statutes, custom,
 judicial decisions where the particular system has been followed for a
long time.
➔ Parliament has dominant power
➔ Limited judiciary power
➔ Unilateral - centralised in one place
➔ Eg: UK,Israel,New Zealand

Rigid

➔ impossible or at least difficult to change.

➔ If change, it normally involve special procedure/process to be
RIGID / FLEXIBLE followed in amending it.- so that the constitution will not be change
easily- 2/3rd majority
➔ Advantages - establishment of a stable and reliable legal landscape,
the heightened protection of constitutional rights and values, and
perhaps increasingly consistent enforceability of constitutional
structures and provisions.

Flexible

➔ can be changed quite readily so that in order to change

➔ it involves the same procedures in amending or passing the law.
➔ NO special procedure to amend the constitution
➔ Advantages - prevent future generations from being bound by past
commitments when it no longer serves the common good.

FEDERAL / Federal
UNITARY
GOVERNMENT ➔ It provides for multi level government.
➔ A federal states or a federation is a country whereby a number of
individual states
join together to form a federation
➔ When federation is form- FC was created
➔ In a FC, the powers of the government are divided (division of power
between
state and federal government ) State government- govern the state
(FC allocate the power to state government) Federal government –
govern the whole country
➔ Eg: USA, Malaysia
➔ State government and federal government is equal in the sense that
no superior
 and derive power from constitution.

Unitary

➔ The Constitution involved one centralised government

➔ No division of power
➔ One form of government in the country which is the central authority
➔ In unitary constitution the legislature of the whole supreme law-
making body in
the country
➔ Eg: UK, Indonesia
➔ UK- There central government in London is superior than regional
authorities
➔ Other authorities are subordinate to the central government

Parliamentary

➔ It refers to countries where the executive comes from the majority

party in Parliament
➔ Parliament refers to legislature - follows the Westminster model(UK)
where the parliament (legislature) controls the government (executive)
PARLIAMENTARY / ➔ Only vote for the members of parliament; executive- chosen by
PRESIDENTIAL parliament
➔ The PM (member of the executive - going to set up his cabinet)
➔ PM is the member of parliament and the head of executive body -
responsible of
the executive and directly answerable to the legislature (explain
decision in parliament)
➔ The Government is chosen by the democratically elected Lower
House.
➔ Gov requires the continuing support of a majority of members of that
chamber to stay in office.
➔ To remove PM:
◆ No confidence motion by opposition (need election)
◆ Remove by their own party (no election)
➔ Advantages:
◆ Power unified under majority party; gov can respond quickly
◆ Greater party disciplined
◆ No veto power
◆ Clear lines of responsibility
➔ Disadvantage:
◆ take more time to form a government
➔ Eg: England and Malaysia
 Presidential

➔ Executive (gov) separate from the legislature

➔ It provides for separate highest executive branch ; executive,
legislative, judiciary are totally independent from each other and has
no power to dismiss one another
➔ The president is the head of the state and the head of executive
body (government)
➔ The member of executive body(government) must not be a member
of legislative body
➔ The president/executive NOT directly to the legislature/congress
(parliament)
➔ Advantage:
◆ President have great control over the cabinet appointees
➔ Disadvantage:
◆ stable gov but not accountability

Eg: UK, Argentina, Brazil

Semi presidential system

➔ President and PM both active in the administration of the state

➔ President share executive power with the PM
➔ President has power to select PM
➔ PM may not be member of President political party
➔ Eg; France

MONARCHY /
REPUBLIC Monarch

➔ The king or queen is the head of the state. The head of state is a
hereditary ruler
➔ Types:
◆ Absolute monarchy – monarch extensive personal
discretionary power/ complete control of the government-
Brunei
◆ Constitutional monarchy – monarch with limited personal
power-Malaysia/England

Republic

➔ Country without a monarch but there is a president

 ➔ Types:
◆ Republic and presidential system- president is both, the
head of state and head of government
◆ Eg: US, Philippines, Indonesia
◆ Republic and parliamentary system- Head of state:
president, head of government:PM
◆ Eg: Singapore, india

CONSTITUTIONAL
SUPREMACY ➔ Constitution is above all and gov control by the constitution
➔ It avoids concentration of power in the hand of one organ of
government thus adopting SOP
➔ Notoriously Rigid
➔ Provisions will be more clearer and certain
➔ It provides greater respect and public loyalty
➔ Provides elaborate guarantee to the citizens and arms the government
with certain power against subversion and emergency without any
enforceable limits on these powers. 6. It is into one single document or
documents.

PARLIAMENTARY
SUPREMACY ➔ Nobody above the parliament
➔ No difficulties in the way the legislation enact, amend and repeal laws
➔ No distinguish between consti and ordinary law
➔ No safeguards against legislative authoritarianism
➔ Flexibility of constitutional arrangement
➔ No constitutional entrenched and judicial protection of human rights.
➔ No limitation on parliament power
➔ The constitution is scattered, heterogeneous and illusive
 CONSTITUTIONALISM

DEFINITION ➔ An idea that government should be limited in its power and authority
➔ **there must be constitution but doesn't mean there is
constitutionalism

1. Limits on the powers of government

➔ Reject unlimited state sovereignty
➔ The limitation supplied by the Constitution
◆ written/unwritten
◆ Substantive - clear procedure
2. Controls over discretionary power
➔ Institutional safeguard against abuse & misuse of powers by
the authorities
➔ check & balance is to ensure that the government acts within
their power & not exceed
➔ In upholding limited government it implies the existence of
institutions, methods and principles for effective regularised
restraints upon government actions.
➔ Effective judicial control of executive actions is one of the most
effective way to be exercised
➔ Effective judicial control- protection of the individual against
illegal acts of the administration.
◆ providing remedies for wrongs done to the individuals.
◆ ensuring that administrative bodies act lawfully
◆ Ensuring that administrative bodies perform their public
duties.
◆ declared hundreds of cases ultra vires or breach of
natural justice
◆ declare federal and state legislation to be
unconstitutional on the grounds of human rights
violation.

4. Responsible government

➔ Accountability ( or answerability) refers to the liability or obligation

attaching to those invested with public powers or duties.
➔ Accountability (or answerability) means having to answer for, or
render account of, the way in which one carries out his official tasks.
➔ According to Turpin, accountability in a democratic state under the
rule of law implies a duty to account to an independent agency which
is outside the organisation whose actions are in question (explain or
 justify)
➔ control the cabinet through parliamentary and electoral processes.
Control over the public service through job evaluation
➔ The Federal Constitution has clearly addressed itself to the need to
control the cabinet through parliamentary and electoral process.

5. Respect for human rights

➔ Constitutional government is not just according to the constitution but

it must provide guarantee for human freedom and dignity.
➔ constitutionalism law should be linked with freedom and justice, In
Malaysia FC contains chapter on fundamental liberties a 6-13
➔ Gender Equality, freedom of association, speech and assembly,
religious and cultural freedoms
➔ A8.2 -152(malay language)
◆ Personal liberty which is protected under A. 5 means that no
one is deprived
of his life or liberty. The meaning of “life” under A. 5 would also
include dignity and necessities of life. The remedy against
denial of life and liberty is the order of habeas corpus

If constitutional rights are capable of being trespass by any institution it is

not constitutionalism.

➔ Check and Balance

◆ The application of separation of power between 3 organs of
government
➔ Responsible government
◆ In Malaysia since the executive (government) is part of
parliament(legislature). Therefore they are answerable to
parliament.
➔ Federalism
◆ Where the powers are divided between central and state.
➔ Judicial review
◆ The function of Public Bureau Complaints Responsible to
investigates complaints of maladministration against public
authorities.
➔ Election
◆ A periodic test of the government both at federal and state
➔ Free and fair elections
 ◆ The electoral process has resulted in peaceful change of
power at the state level several times

RULES OF LAW - AV DICEY

DEFINITION Both government and its citizen obey with the law

1) law has absolute ➔ ROL is regulator of government power→ regulate the

supremacy over
arbitrary power,
including the wide
discretionary powers
of the government.
power of gov should be exercise and limits the exercise
of power by the government- no person is punishment
except for breach of law
➔ Government has power- exercise the power as it
wishes- it can be exercise arbitrarily
➔ Not in line with rule law; ROL→the power to exercise the
power according to the law→must regulate how the
power to be exercise→the law requires power of the
government to be exercise in prescribed procedure
➔ the government has power- if there is no law which
prescribed how the power should be exercised→the
government can exercise the power arbitrarily and in
accordance with its discretion→cause people in
jeopardy
➔ in order to control the government→the power of the
government should be limited
and regulated by having LAW→avoid arbitrators and
discretions on the part of gov

2) Everyone is subjected
to the ordinary law and
trials
➔ equality before the law- no man is above the law
➔ every person is subject to the law - responsible for the
act he had done
➔ equal subjection of all the classes- law applies to
everybody
➔ To the ordinary law of the land administered by the
ordinary law courts- the same law-same courts, judges
using the same law for all people
➔ applies to the government (law enforcer)

3) Constitutional law is ➔ Rule of law is the law of constitution

not the source but the ➔ ROL- rule of justice- standard of justice and humanity to
consequence of the which the law should conform
 rights of individuals ➔ The law made by the government must not be unjust
➔ Procedural and formal justice- the constitution protects
the rights of private persons- any law made by the
government must be just, the procedure (administration,
trial)
must be just.
➔ Law should be good in content- parameter/ benchmark
accordance to human rights/fundamental liberties
➔ -Democracy entails respect for fundamental right-gov
chosen by the people-based
on majority

Joseph Raz In the modern context the rule of law is associated with the
notion of and in particular with law and order.

❖ ‘The rule of law’ literally means what it say: The rule of

the law.

❖ Taken in its broadest sense this means that people should

obey the law and ruled by it but in political and legal theory it
had come to be read in a narrower sense that the
government shall be ruled by the law and subject to it.

❖ The ideal of rule of law →government by law not by men

Joseph Raz had outlined the principles that has to be followed:

➔ The law should be relatively stable.

➔ Open, stable, clear and general rules should govern
executive law making.
➔ Independent of judiciary.
➔ Application of law should be accordance to the rules
of natural justice
➔ Cts should exercise judicial review over law making
and administrative actions.
➔ Ct. should be easily accessible.
➔ The discretion of the crime preventing agencies should
not be allowed to pervade the law

International commission of purpose of law

jurists in 1959[Declaration of
Delhi] ➔ should be respect for supreme value of human
personality and observed that rules of law should
involve.
 ◆ The existence of representative government
◆ Respect for the type of basic human
freedoms contained
◆ That the citizen who is wronged by the
government should have a remedy
◆ The right to a fair trial
◆ independence of judiciary

❖ How to exercise Constitutionalism and Rules of Law?

➢ Separation of powers
➢ Check and balance