FLW0054

CONSTITUTIONAL DOCTRINES

Faculty of Business Management and Professional Studies

(FBMP)
CONSTITUTIONAL DOCTRINES

• 1. THE RULE OF LAW

• 2. PARLIAMENTARY SUPREMACY
• 3. CONSTITUTIONAL SUPREMACY
• 4. SEPARATION OF POWERS
• 5. CONSTITUTIONALISM
 1. THE RULE OF LAW

• The Rule of Law is a “device” used to achieve constitutionalism.

• The Rule of law may refer to the framework or “objective”, “logical”, “neutral” (unbiased) rules which
demand obeisance in a legal system.
• It implies that “the government should operate within a framework of rational values and beliefs
constrained by law which are publicly announced, clear and accessible and policed by independent
court”.
• The Rule of Law has its origin in Ancient Greece.
• It was propounded in the UK by Dicey.
• He considered it to be a central characteristic in the Constitution.
• According to A.V Dicey, rule of Law has 3 meanings:

1. The absolute supremacy or predominance regular law as opposed to the influence of arbitrary power,
and excludes the existence of arbitratriness, of prerogative, or wide discretionary authority on the
part of the government.

2. Equality before the law, or the equal subjection of all classes to the ordinary law of the land
administered by the ordinary law courts.

3. A formula for expressing the fact that with us the law of constitution.
 2. PARLIAMENTARY SUPREMACY

• Unlimited capacity of Parliament: to make or unmake law- on any matter.

• Generally, the courts cannot overrule the legislation and no Parliament can pass laws that future
Parliaments cannot change.

• Parliamentary sovereignty is the most important part of the UK constitution.

 • Parliamentary sovereignty/supremacy is a principle of the UK constitution.
• It makes Parliament the supreme legal authority, which can create or end any law.
• Dicey has explained this concept as the power to make or unmake any law whatever, and added further
that no person or body is recognised as having the power to override or set aside the laws made by
parliament.

• Parliamentary supremacy exists in the UK as the constitution is unwritten.

3 FEATURES OF PARLIAMENTARY SUPREMACY
• 1. Parliament can make law in any area.

• 2. No parliament can bind its successor (A parliament cannot pass a law that cannot be changed or
reversed by a future parliament).

• 3. Nobody except Parliament can change or reverse a law passed by Parliament.

 3. CONSTITUTIONAL SUPREMACY

• CONSTITUTION= ?
• Refers to a set of rules which determine the manner the institutions are to be set up, the powers to be
distributed and the justice to be administered
• MODERN DEFINITION = it refers to that body of doctrines and practices which form the basis for
organising a state.
 CONSTITUTIONAL SUPREMACY
• When the framers of Malaysian FEDERAL CONSTITUTION completed the document, they considered FC
as the highest law of the land and also the course of ALL governmental powers.

• The adoption of a written and supreme constitution has a number of distinct implications, which are as
follows:
1. A higher law
2. A limited parliament
3. Federal set up
4. Fundamental rights
5. Judicial review
6. Special procedure for amendments
7. Subversion and emergency
• B Surinder Singh Kanda v Govt of the Federation of Malaya
- A law part of which contravened the FC was partly declared void
- The power of the police commissioner to dismiss his subordinates was held to be unconstitutional as
this was against the provision of the existing constitution

• Ah Tian v Govt of Malaysia

- The doctrine of the supremacy of Parliament does not apply in Malaysia
- Here we have a written constitution. The power of Parliament & state Legislatures in Malaysia is limited
by the Constitution, and they cannot make any law they please
 4. SEPARATION OF POWERS
• It starts from the premise that the powers of govt can be divided into 3 types & each should be
exercised by entirely separate organs
• Malaysia follows the Westminster system in UK.
• There is no distinction between the executive and the legislative due to the
Cabinet type of organisation.
• The ceremonial executive which is the YDPA, is an integral part of the
parliament.
• The Prime Minister and his Cabinet in the executive are also required to be
members of either House of Parliament.
THE EXECUTIVE, THE LEGISLATIVE & THE JUDICIARY
PP v Kok Wah Kuan [2008] 1 MLJ 1
• The doctrine of separation of powers is not definite & absolute. The extent of its application varies from
country to country, depending on how much it is accepted & in what manner it is provided for by the
Constitution of a country.
 BALANCING THE CONSTITUTIONAL DOCTRINES

• The system of check and balance:

• Allows the three bodies to oversee the exercise of authority vested in each other to prevent abuse.
• Such check and balance is essential to the health of a constitutional democracy, to uphold and
safeguard the rights of the citizens, and to ensure that all acts undertaken within Malaysia are
consistent with the Federal Constitution.
• The separation of the exercise of judicial powers from the Legislature and Executive and the vesting of
judicial power in the Judiciary which allowed it to act as an efficient check and balance on the other
arms of Government, are fundamental to the rule of law.
 5. CONSTITUTIONALISM

• Constitutionalism comprised of ideas and theories that essentially

put limitations on political power in general, and of the
government’s control over citizens in particular.
• Refer to a number of separate but related features of a democratic
political system.
• Constitutionalism is concerned with both the framework as well as the
spirit that breathes within the provisions in that framework.
• Constitutionalism therefore comprised two key elements:
a) rights provision and
b) structural provision
• Rights provision
• It consists of safeguards for political rights
including the right to free speech, freedom of
association, etc.
• These rights operate as legal constraints upon
the political process.
Structural provision
◦ They include separation of powers, representative
system, etc.
◦ All are there to ensure that the government will
act in the interests of the public at large, rather
than those of the self-interested representatives.
• Control of government power
• Lord Acton – “All power tends to corrupt &
absolute power corrupts absolutely”.
• The government must be limited by law.
• It is interrelated with the idea of ‘separation of
powers’, ‘rule of law’ & ‘limited government’.
ASPECTS/ CHARACTERISTICS OF
CONSTITUTIONALISM

a. Respect for law

◦ Implies loyalty to Constitution by citizens & officials of the State.
◦ Citizens must accept the limits on their freedom.
◦ Officials must observe the limits on their powers.
◦ Similar to the idea of rule of law in which authorities obtain their
powers from the law & must act within the law – ‘Government by
law & not by men’.
b. Internalisation of values

◦ Implies loyalty to the letter as well as the spirit of the Constitution.

◦ Requires commitment to & an ‘internalisation’ of the values & ideals.
◦ Demands observance of enacted rules & respect for unwritten &
informal practices, conventions, usages & understandings.
◦ Sir Ivor Jennings immortal words “provide the flesh to clothe the dry
bones of the law”.
• c. Respect for human rights
• Respect for liberty & equality
• Guarantees for human freedom & dignity
• A fair balance between conflicting demands of power & liberty,
freedom & responsibility & the might of the state & the rights of
the citizens.
• M’sia – FC contains a chapter on fundamental liberties (Articles 5-
13)
d. Controls over discretionary powers
◦ Institutional safeguards against abuse & misuse of powers by
authorities
◦ Checks & balances are put in place in order to ensure the
government acts within their powers & not exceed.
◦ The government should not itself be destructive of the values it was
intended to promote
◦ Effective judicial control of executive discretion is the litmus test of
a rule of law society – judicial review
 e. Responsible government

◦ Accountability or answerability of the government

◦ An obligation to explain & justify decisions made or action taken
◦ If individual rights/interests is affected, appropriate
compensation should be given
◦ Constitutional models & control mechanisms are introduced
including constitutionalism, check & balance, federalism, judicial
review, elections, statutory tribunals & SUHAKAM.
 f. Entrenchment of constitutional values

◦ The constitution provides effective legal & political restraints upon

the exercise of state power to amend or repeal laws dealing with
constitutional safeguards.
g. Independent judiciary
◦ According to de Smith, “constitutionalism is practised in a country
where the government is genuinely accountable to an entity or
organ distinct from itself… and where there are effective legal
guarantees of civil liberties enforced by an independent judiciary…”
 h. Free and fair elections

◦ Free & fair elections are regularly held in order to elect the
government
◦ However, free & fair elections does not guarantee that
constitutionalism is being practiced.
◦ Example: Adolf Hitler’s regime came to power through an election.
Successive government in Israel have succeeded at A polls but
genocidal policies against Palestinians in occupied territories.