Sie sind auf Seite 1von 28

What is Constitution??

Group 1 Nur Ainaa Binti Mohamad Salehuddin 2011491518 Nur Ainnabila Binti Rosdi 2011612334 Siti Zulaikha Binti Ab-Lah 2011621682

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 the state executive, legislative, judiciary.

Also prescribe the relationship between the 3 organs (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 act as a citizen of Malaysia) Ex: Art 153, etc. b. Rights fundamental rights (rights that is an individual have as a Malaysian Citizen) Ex: Art5 - Art 13

Classification of Constitution
Written / Unwritten Rigid / Flexible Enacted / Evolved Legal / Real Codified / Uncodified Dignified / Efficient

What is Written Constitution?


Is a series of document that Codified in a single document. It is the Supreme law in Malaysia Constitutional Supremacy is under Article 4 of Federal Constitution. It is a an Enacted constitution which exist in concrete form. Ex of Countries with written constitutions are: Malaysia, the United States of America, and India. It was 1st drafted by the Reid Commission.

Malaysia Constitution is protected by the JUDICIAL REVIEW It means that the court have the power to invalidate 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 the power to cancel or nullify.

The constitution is Rigid Its hard to be amended Special procedures needs to follow with regards to make amendments to the constitution. (Art 159 & Art 161E) eg. Special majority, referendum, consent of other bodies.

Unwritten Constitution
Compared with Written Constitution, unwritten is Not codified 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and practices.(ex: UN Charter, conventions n malay customary or adat) It could Derived from many sources: Ex: Historical Documents Magna Carta some rights of the King given to Barons Bill of Rights 1689 certain political & civil rights given to citizens such as freedom of speech in Parliament, freedom from cruel & unusual punishments. Etc. (please refer to Document of Destiny page 22)

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 UK courts) Text/Opinions of jurist & legal scholars Ex: AV Dicey An Introduction to the Study of the Law of the Constitution 1885 Aristotle, Austin, St Aquinas, etc.

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 Malaysia Law. Constitutional Conventions - ex: Conventions related to constitutional issues.

Advantages & Disadvantages of Written Constitution


Advantages Easily Accessible and Certain - as it is codified in one specified document. Ex, Federal Constitution. Disadvantages LESS FLEXIBLE and RIGID. - Hard to amend or make changes to adapt with the current situation.

Human Rights are protected and Being LESS Able to deal with Emergency Upheld in the Constitution. Situation as everything needs to be in - The availability of fundamental liberties. accordance to the Constitution without easily being amended. Protected against Appeal - Hard to make amendment as need to have 2/3 absolute votes of the parliament. Any amendment must follow certain procedures - As provided under articles 159 and 161E.

Advantages Constitutional Supremacy - A protection against abuse of Power as Agong is to exercise in accordance to Federal Constitution. (Article 4 and Art 32- Art 37) Availability of Judicial Review - The court have power to review any unconstitutional law. Protect against any Intervention in Separation of Power. - ex; make sure the parliament do not overstepping its legislative power by process of Judicial Review.

Disadvantages

Advantages & Disadvantages of Unwritten Constitution


Advantages Flexibility - The provision in the Unwritten Constitution can be easily amended and repealed. Able to Respond Quickly to Emergency - As amendment can easily be made according to current situation. Disadvantages Unwritten Constitution is Scattered - so, not easy to access and not so certain. Human Rights not Constitutionally Protected - Because ordinary law can be easily amended for repealed by the legislative body through ordinary procedure. There is no Judicial Review to safeguard against excess of Legislative Power.

Advantages

Disadvantages Parliamentary Supremacy - Means that there is unlimited powers to make laws by the parliament on any matters. Flexibility - Too much of flexibility can make the provisions easily changed as pleased.

CONSTITUTIONALISM

Definition of Constitutionalism
Constitutionalism is the ideas and theories that essentially put limitations on political power. In other words, it is a mechanisms of power to control and to protect the interests and liberties of the citizen. Refer to a number of separate but related features of a democratic political system.

Constitutionalism contained two important elements: i) rights provision and ii) structural provision

i) Rights provision It contains the protection and safeguards for the political and the human rights. This includes the freedom of speech, freedom of assembly, freedom of association, freedom of movement and other rights which includes under the 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.

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 the government will act for the benefits and interest of the public at large and to avoid from self- interest system.

Constitutionalism also is a form of Control the government power A famous Jurist Lord Acton said that All power tends to corrupt & absolute power corrupts absolutely. It means that people who owns total power tends to 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.

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 by the instruction of the man.

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 (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 the citizens. Under the Malaysian Federal Constitution, there are provisions that contains the 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. Judicial review is one of the effective control the government power.

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 to control the government.

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 It means that the judiciary should be independent and free from any political pressure.

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.