Download pdf - GROUP 1 -CONSTITUTION & CONSTITUTIONALISM

8/3/2019 GROUP 1 -CONSTITUTION & CONSTITUTIONALISM

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What is Constitution??Group 1

Nur Ainaa Binti Mohamad Salehuddin

2011491518 Nur Ainnabila Binti Rosdi

2011612334

Siti Zulaikha Binti Ab-Lah 2011621682


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Constitution

In Latin it means any important law Is the fundamental and basic law of the land.

Basic Document of a Country Sets out the basic structure of government

monarch/republic, parliamentary/presidential.

The extent of powers of various organs of thestate executive, legislative, judiciary.


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Also prescribe the relationship between the 3organs (executive, legislative & judiciary) a.k.a.

Separation Of Power( S.O.P) Prescribes the relationship between state &

individuals :

a. Obligations impose duties (ex: how to actas a citizen of Malaysia) Ex: Art 153, etc.

b. Rights fundamental rights (rights that is anindividual have as a Malaysian Citizen) Ex: Art5 - Art 13


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Classification of Constitution

Written / Unwritten Rigid / Flexible

Enacted / Evolved Legal / Real Codified / Uncodified Dignified / Efficient


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What is Written Constitution?

Is a series of document that Codified in a singledocument. It is the Supreme law in Malaysia Constitutional

Supremacy is under Article 4 of FederalConstitution.

It is a an Enacted constitution which exist inconcrete form.

Ex of Countries with written constitutions are:

Malaysia, the United States of America, andIndia. It was 1 st drafted by the Reid Commission.


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Malaysia Constitution is protected by theJUDICIAL REVIEW

It means that the court have the power toinvalidate executive and legislative actions if there is any possibility ground of

Unconstitutionally. Ex; if the ministers makes any law that is

contradict to the constitution, (ie. To allow

people to be killed easily), the court have thepower to cancel or nullify.


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The constitution is Rigid Its hard to be amended Special procedures needs to follow with

regards to make amendments to theconstitution. (Art 159 & Art 161E)

eg. Special majority, referendum, consent of other bodies.


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Unwritten Constitution

Compared with Written Constitution, unwritten is Notcodified in a single document It means that the rules and principles of the

constitution are scattered in the forms of statutes,charters, political conventions and practices .(ex: UN

Charter, conventions n malay customary or adat) It could Derived from many sources: Ex: Historical Documents Magna Carta some rights of the King given to Barons Bill of Rights 1689 certain political & civil rights givento citizens such as freedom of speech in Parliament,

freedom from cruel & unusual punishments. Etc. (please refer to Document of Destiny page 22)


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Statutes- Act of Settlement 1701 (rules relating to

succession to the British throne)-Act of Union 1800 (establishment of Kingdom of Great Britain & Ireland) European Community Law-Human Rights Act 1998 (provides remedy in UKcourts) Text/Opinions of jurist & legal scholars

Ex: AV Dicey An Introduction to the Study of theLaw of the Constitution 1885

Aristotle, Austin, St Aquinas, etc.


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Delegated/ Subsidiary Legislation- Powers given by the legislature to a person or

body to make rules and regulation. Common Law judges decisions on constitutional issues

- Only refers if there is lacunae in our MalaysiaLaw.

Constitutional Conventions

- ex: Conventions related to constitutionalissues.


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Advantages & Disadvantages of WrittenConstitution

Advantages Disadvantages Easily Accessible and Certain- as it is codified in one specifieddocument. Ex, Federal Constitution.

Human Rights are protected and BeingUpheld in the Constitution.

- The availability of fundamental liberties.

Protected against Appeal- Hard to make amendment as need to

have 2/3 absolute votes of theparliament.

Any amendment must follow certainprocedures

- As provided under articles 159 and161E.

LESS FLEXIBLE and RIGID.- Hard to amend or make changes to

adapt with the current situation.

LESS Able to deal with EmergencySituation as everything needs to be inaccordance to the Constitution withouteasily being amended.


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Advantages Disadvantages

Constitutional Supremacy

- A protection against abuse of Power asAgong is to exercise in accordance toFederal Constitution. (Article 4 and Art32- Art 37)

Availability of Judicial Review

- The court have power to review anyunconstitutional law.

Protect against any Intervention inSeparation of Power.

- ex; make sure the parliament do not

overstepping its legislative power byprocess of Judicial Review.


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Advantages & Disadvantages of Unwritten Constitution

Advantages Disadvantages Flexibility- The provision in the Unwritten

Constitution can be easily amendedand repealed.

Able to Respond Quickly to Emergency- As amendment can easily be made

according to current situation.

Unwritten Constitution is Scattered- so, not easy to access and not so

certain.

Human Rights not ConstitutionallyProtected

- Because ordinary law can be easilyamended for repealed by thelegislative body through ordinaryprocedure.

There is no Judicial Review tosafeguard against excess of LegislativePower.


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Advantages Disadvantages Parliamentary Supremacy- Means that there is unlimited powers

to make laws by the parliament on anymatters.

Flexibility- Too much of flexibility can make theprovisions easily changed as pleased.


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CONSTITUTIONALISM


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Definition of Constitutionalism

Constitutionalism is the ideas and theoriesthat essentially put limitations on politicalpower.

In other words, it is a mechanisms of power tocontrol and to protect the interests andliberties of the citizen.

Refer to a number of separate but relatedfeatures of a democratic political system.


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Constitutionalism contained two importantelements:

i) rights provision andii) structural provision


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i) Rights provision

It contains the protection and safeguards for thepolitical and the human rights. This includes the freedom of speech, freedom of

assembly, freedom of association, freedom of movement and other rights which includes underthe fundamental rights in Articles 5- 13.

These rights operate as legal restraints upon

the political process. It means that the people are limited in their

actions and it is to safeguard the political system.


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ii) Structural provision Structural means that anything that have

organisational and have systems. This include separation of powers (between

executive, legislative and judiciary),representative system, and many more.

These provisions is to ensure that thegovernment will act for the benefits andinterest of the public at large and to avoidfrom self- interest system.


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Constitutionalism also is a form of Control thegovernment power

A famous Jurist Lord Acton said that All powertends to corrupt & absolute power corruptsabsolutely .

It means that people who owns total power tendsto corrupt absolutely. The Government power should be limited with

laws. This is in accordance with the idea of separation

of powers, rule of law & limited government.


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Characteristics

A. Respect for law Create loyalty by the citizens and the official

towards the constitution. Citizens also must accept the limits on their

freedom and Government by law & not by men . It means that the authorities that have power

and they must act within the law and not bythe instruction of the man.


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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 theflesh to clothe the dry bones of the law.


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C. Respect for human rights Respect for liberty & equality (Art 5 and 8) Guarantees for human freedom & dignity

(Art6- 13) A fair balance between conflicting demands of

power & liberty, freedom & responsibility &the might of the state & the rights of thecitizens.

Under the Malaysian Federal Constitution,there are provisions that contains thefundamental liberties (Articles 5-13)


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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 theirpowers.

Judicial review is one of the effective controlthe government power.


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E. Responsible government Accountability and answerable to their

conduct. An obligation to explain & justify decisions

made or action taken by the government. Constitutional models & control mechanisms

are introduced including constitutionalism,check & balance, federalism, judicial review,

elections, statutory tribunals & SUHAKAM tocontrol the government.


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F. Entrenchment of constitutional values The constitution provides effective legal &

political restraints upon the exercise of statepower to amend or repeal laws dealing withconstitutional safeguards.


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G. Independent judiciary According to de Smith, constitutionalism is

practised in a country where the governmentis genuinely accountable to an entity or organdistinct from itself and where there are

effective legal guarantees of civil libertiesenforced by an independent judiciary

It means that the judiciary should be

independent and free from any politicalpressure.


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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 beingpracticed.

Example : Adolf Hitlers regime came to powerthrough an election. Successive government inIsrael have succeeded at the polls butgenocidal policies against Palestinians inoccupied territories.