1.CONSTITUTIONALISMLECTURE TWO

2. 1.Definition 2. Aspects/Characteristics 3. The Rule of Law 4. The Doctrine of the Separation of Powers 5. Checks and Balances 6. Limited government LECTURE TWO 3. 1.DEFINITION Constitutionalism comprised of ideas and theories that essentially put limitations on political power in general, and of the governments sway over citizens in particular. Refer to a number of separate but related features of a democratic political system.LECTURE TWO 4. 1.Definition 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 LECTURE TWO 5. 1.Definition 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.LECTURE TWO 6. 1.Definition 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. LECTURE TWO 7. 1.Definition 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. LECTURE TWO 8. 2. Aspects/ Characteristicsa. 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. LECTURE TWO 9. 2. Aspects/ Characteristics 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. LECTURE TWO 10. 2. Aspects/ Characteristics 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. Msia FC contains a chapter on fundamental liberties (Articles 6-13) LECTURE TWO 11. 2. Aspects/ Characteristicsd. 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 LECTURE TWO 12. 2. Aspects/ Characteristicse. 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. LECTURE TWO 13. 2. Aspects/ Characteristicsf. 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 LECTURE TWO 14. 2. Aspects/ Characteristics 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 Hitlers regime came to power through an election. Successive government in Israel have succeeded at the polls but genocidal policies against Palestinians in occupied territories. LECTURE TWO 15. 2. The Rule of Law A preference for law & order Colin Munro wrote that rule of law has emerged out of constitutionalism. Whereas, Dicey defined rule of law as: a) the supremacy of regular laws over arbitrary power, b) formal legal equality before the law & c) the constitution that is defined and enforced by regular courts. LECTURE TWO 16. 2. The Rule of Law Core Characteristics a. Legality Requires that a society must be governed by a government of laws & not by a regime of arbitrary powers. Supremacy of laws. Government officials must show respect for the law & must observe their power. 20.9.2011 LECTURE TWO 17. 2. The Rule of Law Core Characteristics b. Controls on discretion All powers must be subject to limits. There must be controls on executive discretion so that discretionary authority does not degenerate into arbitrariness.LECTURE TWO 18. 2. The Rule of Law Core Characteristics c. Impartial system of justice Enforcement by independent judiciary enforcing power without fear or favour. Judiciary must be free from extraneous pressures.LECTURE TWO 19. 2. The Rule of Law Core Characteristics d. Just Legality Compliance with substantive human rights values. Must honour & promote individual liberty, equality & dignity. Limit on the power of state to restrict citizens rights. Ideals about citizen-state relationship. LECTURE TWO 20. 2. The Rule of Law Core Characteristics e. Socio-economic Justice State support for socio-economic policies to help the weak, the oppressed & the marginalised. State must be involved in social scheme to bring welfare to those who are unable to actualize their freedoms & rights. LECTURE TWO 21. 2. The Rule of Law Core Characteristics f. Effective Government Government must be capable of enforcing the law & order & ensuring socioeconomic & legal justice. Citizens must respect the law & accept the results of the legal & electoral processes.LECTURE TWO 22. 2. The Rule of Law in Malaysia Core Characteristics a. Controls on arbitrary powers Rule of law is protected with the existence of a supreme constitution, an independent judiciary & judicial review. However, there are non-reviewable & non-justiciable powers permit uncontrolled executive discretion via ISA, Police Act, Printing Presses & Publications Act & few others. LECTURE TWO 23. 2. The Rule of Law in Malaysia Core Characteristics b. Human Rights Political & socio-economic rights are guaranteed by the FC. The government is representative of the people through election. Human rights are entrenched with certain limitations via ISA, Police Act, PPPA, Art 149(subversion) & Art 150 (emergency). LECTURE TWO 24. 2. The Rule of Law in Malaysia Core Characteristics c. Socio-economic Justice Political stability, economic prosperity & welfare policies have ensured that rule of law is well protected. However, existence of corrupt practices often prevents welfare policies from assisting those they were meant to help. LECTURE TWO 25. 2. The Rule of Law in Malaysia Core Characteristics d. Effective Government Citizens are generally respectful of the law. Crime is under control. The machinery of government is generally responsible & responsive. Prof Shad: there is a rule of law, but an imperfect one. LECTURE TWO 26. 3. Separation of Powers Theory of strict separation of power: the doctrine of the separation of powers was first formulated by the French jurist, Monstesquieu. Basic idea of this doctrine is that the entire power of the state (executive, judicial, legislative) should not be given to one person/authority in the state. Danger of the Legislature enacting oppressive laws which the Executive will administer to attain its own ends. LECTURE TWO 27. 3. Separation of Powers Doctrine of strict separation of power: Absolute power corrupts absolutely 3 main organs in a state should be vested with one function To concentrate more than one class of functions is a threat to individual liberty One organ of government should not control or interfere with the exercise of functions by another organ. One organ of government should not exercise the functions of another. LECTURE TWO 28. 3. Separation of Powers in Msia & UK3 fundamental powers exist in the hands of different organs especially the judiciary 1. Relationship between Legislature & Executive a. Cabinet government Cabinet is part of Parliament. Article 43(3) of the FC, the political executive is collectively responsible to Parliament. During question time, debate & motions Ministers are answerable, accountable & responsible to the representative of the people. LECTURE TWO 29. 3. Separation of Powers in Msia & UK 1. Relationship between Legislature & Executive b. Law-making in Parliament Cabinet dominates the legislative by using its majority to push a legislative proposal through Acts of Parliament today are governmentsponsored & government piloted In theory, Parliament legitimates, it does not legislate. LECTURE TWO 30. 3. Separation of Powers in Msia & UK 1. Relationship between Legislature & Executive c. Emergency Ordinance Article 150(2B) & (2C) of the FC grant very wide power to the King to promulgate emergency ordinances if an Emergency Proclamation in operation & 2 Houses are not is session concurrently. These articles have the same force & effect as an Act of Parliament. LECTURE TWO 31. 3. Separation of Powers in Msia & UK 1. Relationship between Legislature & Executive d. Subsidiary Legislation Legislative power are delegated by Parliament to members of the executive via delegated/subsidiary legislation. In Msia & UK there are no limits on the amount or nature of power that Parliament can delegate to the executive: Eng Keock Cheng v PP [1966] LECTURE TWO 32. 3. Separation of Powers in Msia & UK 1. Relationship between Legislature & Executive e. The Monarch The YDPA who heads the executive, is under Article 44, the 3rd wing of Parliament. Article 45, he has power to appoint Senators to the Dewan Negara. May remove/disqualify members of Parliament: Article 48(3). LECTURE TWO 33. 3. Separation of Powers in Msia & UK 2. Relationship between Legislature & Judiciary a. Law Lords In the UK, 10 Law Lords in the House of Lords act both as judges & as legislators. In Msia, judges are absolutely barred from membership both Houses. Article 127 their conduct cannot be subject of a parliamentary debate. LECTURE TWO 34. 3. Separation of Powers in Msia & UK 2. Relationship between Legislature & Judiciary b. Parliamentary Supremacy The UK Parliament may overturn judicial decisions, remove judges & grant judicial powers to the executive by creating administrative tribunals. In Msia, Parliament is not supreme & judicial review on constitutional grounds is provided in light of Arts 4(1), 128 & 162(6) LECTURE TWO 35. 3. Separation of Powers in Msia & UK2. Relationship between Legislature & Judiciary c. Mandatory sentences The question of guilt is for the courts but once the accused is found guilty, the penalty is dictated by Parliament. Is this a trespass on the judicial power of sentencing under Art 121(1)? Mandatory penalty laws are questionable under Art 121(1) as a violation of separation of powers doctrine: PP v Lau Kee Hoo [1983] LECTURE TWO 36. 3. Separation of Powers in Msia & UK 3. Relationship between Judiciary & Executive a. Non-reviewability of Kings Ordinances Any legislation that seeks to exclude judicial review is indeed a trespass on the judicial power. However, it was held in Phang Chin Hock v PP [1980] that Art 121 is not infringed by an Act of Parliament that excludes the jurisdiction of the courts to review the legality of a proclamation issued by YDPA under Art 150. LECTURE TWO 37. 3. Separation of Powers in Msia & UK 3. Relationship between Judiciary & Executive b. Judicial Independence Articles 121 -131A provides for the preservation of judicial independence & integrity: Existence of courts, judicial hierarchy, jurisdiction & composition of courts: Arts 122,122A & 122AA. Constitutional procedures for appointment of superior court judges: Arts 122B & 123. Protection for security of tenure: Art 125. Favourable terms of service: Art 125 (1) Insulation from politics: Art 125(6) & 127 Power to punish for contempt of court: Art 126 Judicial immunity: Art 122AB(1) LECTURE TWO 38. 3. Separation of Powers in Msia & UK 3. Relationship between Judiciary & Executive b. Judicial Independence Articles 121(1) states: the judicial power of the Federation shall be vested in two High Courts of coordinate jurisdiction & status In Dato Yap Peng v PP [1987] Abdoolcader SCJ provided a definition of what is a judicial power-Judicial power may be broadly define as the power to examine the questions submitted for determination with a view to the pronouncement of an authoritative decision as to rights & liabilities of one or more parties. LECTURE TWO 39. 3. Separation of Powers in Msia & UK 3. Relationship between Judiciary & Executive b. Judicial Independence In Dato Yap Peng v PP [1987], the Supreme Court relied Art 121(1) to invalidate section 418A of the CPC because the section conferred power on the Attorney-General to withdraw cases from lower crt & transfer then to the High Court even after proceedings in the lower crt & violation of the doctrine of separation of powers. LECTURE TWO 40. 3. Separation of Powers in Msia & UK 3. Relationship between Judiciary & Executive b. Judicial Independence The A-G proposed a highly controversial amendment to Art 121(1) : Delete the words the judicial power of the Federation shall be vested in two High crts.. & substitute them with There shall be two High Courts and they shall have such jurisdiction and powers as may be conferred by or under federal law. LECTURE TWO 41. 3. Separation of Powers in Msia & UK 3. Relationship between Judiciary & Executive b. Judicial Independence In Sugumar Balakrishnan v Pengarah Imigresen [1998] the COA held that the deletion of the words judicial power from Art 121(1) does not have the effect of taking away the judicial power from the High CourtLECTURE TWO 42. 3. Separation of Powers in Msia & UK 3. Relationship between Judiciary & Executive b. Judicial Independence In PP v Kok Wah Kuan [2008] it was held that no provision of the law may be struck out as unconstitutional even though it may be inconsistent with the doctrine of separation of powers. The doctrine is not a provision of the Msian Constitution even though it influenced the framers of the Msian Constitution. LECTURE TWO 43. 3. Separation of Powers in Msia & UK 3. Relationship between Judiciary & Executive b. Judicial Independence In PP v Kok Wah Kuan [2008] there was a powerful dissent by Richard Malanjum CJ saying that sentencing was still in the hands of the courts. Article 121(1) is not, & cannot be, the whole & sole repository of the judicial role. The doctrine of separation of powers was part of the basic structure of the Constitution. Courts are not agents of Parliament. LECTURE TWO 44. 3. Separation of Powers in Msia & UK 3. Relationship between Judiciary & Executive c. Powers of the AG The power to transfer a case to a superior court or to remit it to a lower court belongs to the judiciary. But under section 418A of the CPC & Art 145(3A) the AG is also vested with the power to transfer case.LECTURE TWO 45. 4. Checks and Balances It is a process where each branch of government executive, legislature and the judiciary have powers to negate the actions of the others. Check and balances involve several institutions and the process seeks to avoid, among others, the system from going in one direction. LECTURE TWO 46. 4. Checks and Balances It also seeks to check excessive use of power by any other branch, virtually limiting the exercise of legal powers. Examples of checks and balances include the executive veto on legislation or legislative confirmation on executive appointments in the American constitutional system, as well as the right to be consulted given to the Conference of Rulers in the Malaysian constitutional system. LECTURE TWO 47. 5. Limited government A limited government is not only elected through periodical, free and fair elections but also has its powers circumscribed and constrained. The limited government clarifies and supports further the aims and objectives contained in the notions of separation of powers, rule of law as well as responsible government. LECTURE TWO 48. 5. Limited government Responsible government here refers to for example: the minister concerned should resign if there is a failure in his or her ministrys policy. In line with this, a minister must also be accountable in the sense that he or she must inform the house what has taken place and what has been done to deal with the problem. LECTURE TWO