TOPIC 5:

CONSTITUTION
Lecture Outline
i. Definition of Constitution.
ii. Types of Constitution.
iii. Purposes of Constitution
iv. Concept of Constitutionalism
CONSTITUTION
Constitution is a basic rules that structure a government.
Usually, it is a written document outlining the structure
of a political system.
Political Scientists: “the rules & customs, either written or
unwritten, legally established or extralegal, by which a
government conducts its affairs.
The traditional functions of constitution is to specify
individual rights & freedom.
However, most of constitution suppose to established the
forms, institutions, and limits of government & balance
minority and majority interests.
6.1 Definition of Constitution
1. Aristotle: “the way of life the state has chosen for itself.”
2. Roskin et.al (1988): cosntitution as selection of the legal
rules which govern the govenrment of that country and
which have been embodied in a legal document.

3. C. F. Strong: “a collection of principles according to

which the powers of the government, the rights of the
governed, and the relations between the two are
adjusted.”

4. K. C. Wheare: “a selection of the legal rules which

govern the government of that country and which have
been embodies in a document.”
Cont...
From the definitions, constitution is:
1. The fundamental law of the land.
2. Main source of laws.
3. Superior over the laws of local, state & national
government.
4. Dictates the rights & duties of the citizens of the
country.
5. A body of fundamental rules that determines the
structure of the government, distribution of powers
& relations among the organs of the government.
6. Body of formal and effective rules & regulations
according to which the people & formal institutions
of a state are governed.
6.3 Types of Constitution
Constitution can be classified according to
this classification:
1. Written vs. Unwritten
2. Rigid vs. Flexible
Cont...
1. Written Constitution
 Written down in a document or a series of documents.
 Usually written constitution clearly explains each
fundamental principles concerning duties, rights &
responsibilities of government, citizens etc.
 Even sometimes, the procedure for amending the
constitution are included in the constitution.
 Supremacy of the constitution
 Two distinct laws, namely constitutional and ordinary
laws
 Two different law making authorities, namely constitution
making body and ordinary law making body
 E.g. Constitution of Malaysia, Canada and Bangladesh.
Cont…
Advantages Disadvantages

 Citizen can read & know the  Difficult to amend

provision of the constitution  Rigidity
 Not easy to violate
 More certain, definite and
distinct
 Clearly explains the limits of the
governments’ power.
 Able to provide distinction
between constitutional &
ordinary laws.
 Limits the power of the
government as it writes the dos
and don’s of government.
Cont...
2. Unwritten Constitution
 Constitution is not written in a document.
 It may be scattered in various documents or found in usages,
customs, traditions, charters, judicial decisions, statutes and
conventions of the country (Moten and Islam,2011).
 It is a product of history and evolution.
 Unwritten constitution is one in which most of the fundamental
rules & regulations regarding the structure of the governmnet
fundamental rights & liberties are not written down.
 e.g. the Constitution of Britain. The constitution made up from
Magna Carta, Bill of Rights, Petition of Rights and judicial decision
which made gave the final shape to the British Cosntitution.
Cont…
 In those countries where unwritten
constitution exists, there prevails:
i) No difference between constitutional and
ordinary law
ii)No difference between constitutional and
ordinary law amending process
Resources from: http://www.thebcgroup.org.uk/british-constitution
Example; content of Britain Constitution
1. Common Law includes the Charter of Liberties, which makes the Monarch subject to the law, the 1102 Synod of Westminster, which abolished
slavery in England, the 1627 Petition of Right, which granted the right to criticise the government without fear of arrest, as well as Magna Carta
and the Declaration of Right. Common Law defends property rights and rights to self defence.
Many of our greatest constitutional documents are Common Law documents. These are not Acts of Parliament. Their principles cannot be
repealed by Parliament, and when our Monarch swore to uphold the "laws and customs" of the people of the United Kingdom at her Coronation,
those "laws and customs" include Common Law.
2. The Coronation Oath
The Coronation Oath is the freely taken and mutual covenant between the Monarch and the People of Britain. During the
Coronation ceremony, the People effectively elect the Monarch, and in return, the Monarch swears the Coronation Oath. Here is the
Oath Elizabeth II swore -
Archbishop: Will you solemnly promise and swear to govern the Peoples of the United Kingdom of Great Britain and Northern
Ireland, Canada, Australia, New Zealand, the Union of South Africa, Pakistan and Ceylon, and of your Possessions and other
Territories to any of them belonging or pertaining, according to their respective laws and customs?
Queen: I solemnly promise so to do.
Archbishop: Will you to your power cause Law and Justice, in Mercy, to be executed in all your judgements?
Queen: I will.
Six British Monarchs have been deposed in one form or another, having been deselected for their failure to maintain the rights
and liberties of the People. They were Ethelred, Richard II, Henry VI, Charles I (executed), James II and Edward VIII.
3. Magna Carta - a Common Law document - was originally signed in 1215, a contract between the knights, barons,
clergy, townspeople and the King. Magna Carta affirmed the right of the People to such things as trial by jury, and protection from
excessive fines.
Cont...
Advantages Disadvantages
Dynamic and able to meet  Uncertain, unclear & indistinct.
the new demands of society  Easy to be abused as it open into
(social, economic,political)
an interpretation.
 The citizens can’t read & know
the provisions of the constitution.
 No explanation about the limits
of the governments’ power.
 Fails to provide distinction
between constitutional &
ordinary laws.
 Physically not exist like a written
constitution where it can be a
reference
 Too flexible can become unstable
which may affect the social and
political progress
Cont...
1. Rigid Constitution
 Can’t be changed easily
 Why? Because the power of legislature limited by the constitution itself
(supremacy of constitution).
 There is a separate and distinct method or procedure from amending the
constitution which is very complicated and rigorous and not limited to the
authority of legislature alone (Moten, 2009)
 If amendment is needed, usually the process will be very complicated, rigorous
and involve so many level of authorities.
 In USA, USA Congress can propose an amendment by two third vote but it must
be ratified by three quarters of the states in order to be approved.
 In the United State, any power not accorded to the central government are
reserved for the state and for the people.
 Separation of powers: limit the power of each branch.

 E.g. USA Congress, Canada etc.

Cont...
Merits of Rigid Constitution Demerits of Rigid Constitution
i. Government cannot i. Not compatible with
change any provisions constant changing.
according to its
convenience. ii. Not suitable in the case of
serious constitutional
ii. Stable in nature.
crisis/emergency.
iii. Reduced the possibility
of conflict between the iii. Too much power to the
state and federal govt. judiciary to decide on the
iv. There is a guarantee validity of laws.
that the fundamental
rights of the citizens are
not violated.
2. Flexible Constitution
Can be changed easily by legislature.
 No special procedure needed for amending the
constitution (Moten, 2009)
 If amendment is needed, it can be done through a simple
procedure.
 It possesses the characteristics of elasticity, adaptability
and flexibility.
 In Malaysia, the FC can be amended by 2/3 majority in
Parliament.
2. Flexible Constitution
 In Malaysia, a constitution outline the division of
power between central and regional government in a
federal states.
Legislature often involved in three types of methods
of amending constitution. One is by direct vote of the
legislators alone, The second method is an amendment
proposal by the legislature. Third method involves a
proposal by the legislature followed by the ratification
of states. These changes however, are not regular.
Cont...
Disadvantages of Flexible
Advantages of Flexible Constitution Constitution
i. Adaptable to changing i. If too flexible, any govt.
or emergency or parties in power can
circumstances. change the constitution
to suit its needs.
ii. Immediate change
ii. May led into a conflict as
possible in serious
too easy to amend led to
crisis.
unstable constitution.
6.4 Purposes of Constitution
1. A statement of national ideas-more perfect
union, to establish justice, to ensure domestic
tranquility, common defense, promote the
general welfare & to secure the blessings of
liberty

2. Formalizes the structure of government. -

written description of who does what in
government, defining the authority and limiting
the powers, separation of powers.
Cont…
3. Establishes the legitimacy of government.
 constitution is to give a government the stamp of
legitimacy – power, authority and responsibility
4. Limits the power of the government.
5. Prevents too much interference of the government in
individual matters.
6. Enlists the various rights, duties & responsibilities
of the people & government.
7. Avoids the dangers of anarchy, lawlessness, confusion
& chaos in times of the collapse of the government.
 5.3 Supremacy of Constitution
Constitutionalism: degree to which the power of government
is limited (limited government).
Also known as Rule of Law.
Shivley (2005), constitutionalism as the doctrine that states
should be faithful to their constitutions because the rules so
provided are all that can protect the citizen from arbitrary
decision of powerful people.
Here limited means that the power of the govt. is limited by
the constitutional rules.
A mere existence of constitution does not guarantee that
the political system is constitutional.
Question? How to consider a government as a
constitutional government and what is constitutionalism?
Cont...
Constitutionalism thus, stands for the existence
of a constitution in a state whose objective are:
1. To limit the arbitrary actions of the government.
2. To guarantee the rights of the governed.
3. To define the operation of the sovereign power.
In Malaysia, FC is the supreme law of the land by
virtue of Article 4(1) of the Federal Constitution.
“This constitution is the supreme law of the
Federation and any law passed after Merdeka Day
which is inconsistent with this Constitution shall,
to extent of the inconsistency, be void”
Cont...
Concepts of Constitutionalism (Summary)
Government limits its power by laws and constitution
To make sure the fundamental rights of citizens are not
violated
Constitutionalism is dividing power provides a system
of effective restraints upon governmental action.
Cont...
A constitutional government/constitutionalism
MUST have these in provisions in their constitution:
1. Fundamental freedom (press, expression, assembly,
association).
2. Democratic rights (rights to vote).
3. Mobility rights (freedom to move in and outside of
the country).
4. Legal rights (right to life, liberty & security).
5. Equality rights (equality of law irrespective of sex,
race, religion, color, social class).
6. Right to education (minimum education access)
QUESTION ANYONE?
END OF THE SESSION