2 constitutionalism lecture

CONSTITUTIONALISM

LECTURE TWO

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

1.DEFINITION
• Constitutionalism comprised of ideas and
theories that essentially put limitations on
political power in general, and of the
government’s sway over citizens in
particular.
• Refer to a number of separate but related
features of a democratic political system.

LECTURE TWO

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
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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

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

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

2. Aspects/ Characteristics

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’.
LECTURE TWO

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

• 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 6-13)
LECTURE TWO


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
LECTURE TWO


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.
LECTURE TWO


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…”
LECTURE TWO

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 the polls but
genocidal policies against Palestinians in
occupied territories.
LECTURE TWO

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

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

2. The Rule of Law
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

2. The Rule of Law
c. Impartial system of justice
• Enforcement by independent judiciary
enforcing power without fear or favour.
• Judiciary must be free from extraneous
pressures.

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2. The Rule of Law
d. Just Legality
• Compliance with substantive human rights
values.
• Must honour & promote individual liberty,
equality & dignity.
• Limit on the power of state to restrict
citizen’s rights.
• Ideals about citizen-state relationship.
LECTURE TWO

2. The Rule of Law
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

2. The Rule of Law
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

2. The Rule of Law in Malaysia
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

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

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

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

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

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

3. Separation of Powers in M’sia & UK

3 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

•

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

•

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

•

Executive
d. Subsidiary Legislation
• Legislative power are delegated by Parliament
to members of the executive via
delegated/subsidiary legislation.
• In M’sia & 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

•

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

•

Judiciary
a. Law Lords
• In the UK, 10 Law Lords in the House of Lords
act both as judges & as legislators.
• In M’sia, judges are absolutely barred from
membership both Houses.
• Article 127 their conduct cannot be subject of
a parliamentary debate.
LECTURE TWO

•

Judiciary
b. Parliamentary Supremacy
• The UK Parliament may overturn judicial
decisions, remove judges & grant judicial
powers to the executive by creating
administrative tribunals.
• In M’sia, Parliament is not supreme & judicial
review on constitutional grounds is provided
in light of Arts 4(1), 128 & 162(6)
LECTURE TWO


•

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


• 3. Relationship between Judiciary & Executive
a. Non-reviewability of King’s 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


 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



3. Relationship between Judiciary & Executive
• 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


• 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


• 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


• 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
Court…’

LECTURE TWO


• 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
M’sian Constitution even though it influenced
the framers of the M’sian Constitution.’
LECTURE TWO


• 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


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

• 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

• 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

• 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

• Responsible government here refers to for
example: the minister concerned should
resign if there is a failure in his or her
ministry’s 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

2 constitutionalism lecture

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