CONSTITUTIONAL LAW 1LAW 437

ISMAIL BIN BADIUZZAMANB.Sc(Maths) York Uni. Canada,

LL.B (Hons) (UiTM)LL.M (Malaya)

Advocate & Solicitor

FACULTY OF LAWUiTM2011

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COURSE OBJECTIVES

By the end of the course students will be able to: exhibit an adequate understanding and

knowledge of the principle features of the Federal Constitution of Malaysia;

analyse the constitutional significance of the various fundamental rights guaranteed by the Federal Constitution of Malaysia.

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COURSE DESCRIPTION

The study of constitutional law involves the understanding of the broad framework of the government. The first part of the study focuses on the fundamental principles of constitutional law within the context of the Federal Constitution of Malaysia. The course will also analyse various fundamental liberties guaranteed in Part II of the Federal Constitution. The course concludes with a study of selected current constitutional issues related to the areas in focus.

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REQUIRED TEXT AND REFERENCES

Shad Saleem Faruqi, Document of Destiny, 2008

Suffian, Lee and Trindale, The Constitution of Malaysia - Its Developments 1957 – 1977, Oxford University Press, 1978

Rau, K.V.P., Federal Constitution of Malaysia - A Commentary

Jaya Kumar, Constitutional Cases from Malaysia and Singapore, Malayan Law Journal, 1976

Wu Min Aun & Hickling, R.H, Hickling’s Malaysian Public Law, Longman, 2003

Suffian, Lee and Trindale, The Constitution of Malaysia: It's Development: 1957 – 1977, Oxford University Press, 1978

Sheridan and Groves, The Constitution of Malaysia, Malayan Law Journal, 5th Ed. 2004.

Salleh Abbas, Constitutional Law and Judiciary, Malaysian Law Publishers

Trindale and Lee, The Constitution of Malaysia: Further

Perspectives and Developments, Oxford University Press, 1986

Mohd Suffian Hashim, An Introduction to the Constitution of Malaysia, Government Printers, 2nd Ed. 1976

Lee, Thio Li-Ann and Kevin Tan Yew, Constitutional Law in Malaysia and Singapore Butterworths, 2nd Ed. 1997.

Harding, Andrew, Law, Government and the Constitution in Malaysia, Malayan Law Journal, 1996.

Aliran, Reflections on the Malaysian Constitution, Aliran Kesedaran Negara, 1998 [Note: Students are strongly advised to obtain the latest edition of the above publications].

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POINTS TO REMEMBER1. Please come to class on time i.e. Be punctual

2. Please wear proper attire.

3. Attendance for lectures and tutorials are compulsory.

4. It is sincerely hoped that students will inform the lecturer of his/her absence from the class.

5. Handphone/Any electrical devices must be switched off or switched to silent mode during lecture and tutorial hours.

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LESSON PLANWk 1 Constitutional LawWk 2 ConstitutionalismWk 3 Historical Development of M’sia ConstitutionWks 4-5 Basic Features of FCWk 6 Sources of Constitutional LawWk 7 Constitutional Supremacy vs Parliamentary SupremacyWk 8 Responsible Government vs Independent GovernmentWks 9-14 Fundamental LibertiesWk 15 Current Legal Issues

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Assessment

a. Course work 30%

b. Final Examination 70%

c. Total 100%

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What is Constitution?

• Latin term – “any important law”• Basic Document of a Country• Lays down the structure of government –

monarch/republic, parliamentary/presidential.

• The extent of powers of various organs of the state – executive, legislative, judiciary.

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What is Constitution?

• Prescribes the relationship between these organs – emphasis separation of powers

• Prescribes the relationship between state & individuals :

a. Obligations – impose dutiesb. Rights – fundamental rights

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What is Constitution?

• Core values of society • Preamble to the Constitutiona. Introduction to the purpose & principles

behind the Constitution.b. Not legally part of the Constitution.

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Classifications

• Written / Unwritten• Rigid / Flexible• Enacted / Evolved• Legal / Real• Codified / Uncodified• Dignified / Efficient

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Written Constitution Document or series of document. Codified in a single document. Supreme law of the country –

Constitutional Supremacy (M’sia: Art 4(1) of the FC)

Enacted constitution Countries with written constitutions

are: the United States of America, India and Malaysia.

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Written Constitution

• Derived from events that shaped the constitution:–USA – American Revolution–Malaysia – Establishment of the Reid

Commission – Merdeka Agreement 1956

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Written Constitution

• Availability of Judicial Review• Provisions are entrenched– Special procedures with regards to

amendments/ repeals to the constitution are imposed.–eg. Special majority, referendum, consent

of other bodies.

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Unwritten Constitution

• Not codified in a single document - the rules and principles of the constitution are scattered in the forms of statutes, charters, political conventions and practices.

• Derived from many sources:– 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

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Unwritten Constitution

– Statutes• Act of Settlement 1701 – rules relating to

succession to the British throne• Act of Union 1707 – establishment of Kingdom

of Great Britain & Parliament of Great Britain• Act of Union 1800 – establishment of Kingdom

of Great Britain & Ireland.

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Unwritten Constitution

– European Community Law• European Communities Act 1972 – incorporate

EC law in UK, permits ministers to make regulations before Parliament to implement changes necessary to domestic law. • Human Rights Act 1998 – provides remedy in

UK courts – breach of European Convention on Human Rights

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Unwritten Constitution

– Text/Opinions of jurist & legal scholars• AV Dicey – An Introduction to the Study of the

Law of the Constitution 1885 • Erskine May – A Practical Treatise on the Law,

Privileges, Proceedings & Usage of Parliament (Parliamentary Practice) 1844• Walter Bagehot – The English Constitution

1867.

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Unwritten Constitution

– Delegated/ Subsidiary Legislation– Common Law – judges decisions on constitutional

issues– Law & custom of Parliament– Non ratified International Treaties– Constitutional Conventions – non justiciable ie non

enforceable by the courts – eg in the UK, cabinet ministers must be from either the House of Commons or House of Lords.

– Stop 13.9.2011

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Unwritten Constitution

• Evolved through time• No Constitutional Supremacy.• Parliamentary Supremacy.• No Judicial Review on basis of

constitutionality.• Provisions are not entrenched – no

special procedures.• UK, New Zealand & Israel.

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Advantages WRITTEN Constitution

• Easily accessible & certain• Entrenchment of Human Rights in

the Constitution. Any amendments or repeals must be made by following special procedures. Protected against easy appeal.

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Advantages WRITTEN Constitution

Concept of Constitutional Supremacy – protection against abuse of power.

Availability of Judicial Review. Safeguard against Parliament

overstepping its legislative powers by process of Judicial Review.

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Disadvantages - WRITTEN Constitution

• Less flexible. Rigidity – difficult to make changes to adapt to current situations in the country.

• Less able to deal with emergency situations/ contingencies.

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Advantages - UNWRITTEN Constitution

• Flexibility - the provisions in the Constitution can be easily amended & repealed.

• Able to respond quickly to emergencies/ contingencies.

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Disadvantages - UNWRITTEN Constitution

• Scattered, not easily accessible & not so certain.

• Human Rights not constitutionally protected. They are contained in ordinary laws which can be amended & repealed by the legislative body through ordinary procedures.

• There is no judicial review process to safeguard against legislative excesses.

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Disadvantages - UNWRITTEN Constitution

• Parliamentary Supremacy – unlimited powers to make laws on any matters.

• Flexibility – provisions can be easily changed.

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