2 constitutionalism lecture

CONSTITUTIONALISM

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1.Definition2. Aspects/Characteristics3. The Rule of Law4. The Doctrine of the Separation of Powers5. Checks and Balances 6. Limited government

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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.

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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 andb) 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.

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1.DefinitionStructural 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.

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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/ Characteristicsa. 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’.

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2. Aspects/ Characteristicsb. 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”.

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2. Aspects/ Characteristics

• 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

2. Aspects/ Characteristicsd. 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

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2. Aspects/ Characteristicse. 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.

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2. Aspects/ Characteristicsf. 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…”

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2. Aspects/ Characteristicsh. 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.

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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.

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2. The Rule of LawCore Characteristicsa. LegalityRequires 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

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2. The Rule of Law

Core Characteristicsb. 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.

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2. The Rule of Law

Core Characteristicsc. 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 LawCore Characteristicsd. 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.

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2. The Rule of Law

Core Characteristicse. 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.

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2. The Rule of Law

Core Characteristicsf. Effective Government• Government must be capable of enforcing

the law & order & ensuring socio-economic & legal justice.

• Citizens must respect the law & accept the results of the legal & electoral processes.

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2. The Rule of Law in MalaysiaCore Characteristicsa. Controls on arbitrary powersRule 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.

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2. The Rule of Law in MalaysiaCore Characteristicsb. 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).

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2. The Rule of Law in Malaysia

Core Characteristicsc. Socio-economic JusticePolitical 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.

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2. The Rule of Law in Malaysia

Core Characteristicsd. Effective GovernmentCitizens 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.

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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.

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3. Separation of Powers in M’sia & UK3 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.

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3. Separation of Powers in M’sia & UK• 1. Relationship between Legislature &

Executiveb. Law-making in Parliament• Cabinet dominates the legislative by using its

majority to push a legislative proposal through• Acts of Parliament today are government-

sponsored & government piloted• In theory, Parliament legitimates, it does not

legislate.

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Executivec. 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.

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Executived. 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]

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Executivee. 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).

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Judiciarya. 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.

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Judiciaryb. 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)

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Judiciaryc. 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]

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3. Separation of Powers in M’sia & UK• 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.

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3. Separation of Powers in M’sia & UK 3. Relationship between Judiciary & Executiveb. 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)

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3. Separation of Powers in M’sia & UK 3. Relationship between Judiciary & Executiveb. Judicial Independence• 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.

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3. Separation of Powers in M’sia & UK• 3. Relationship between Judiciary & Executiveb. Judicial Independence• 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.

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3. Separation of Powers in M’sia & UK• 3. Relationship between Judiciary & Executiveb. Judicial Independence• 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”.

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3. Separation of Powers in M’sia & UK• 3. Relationship between Judiciary & Executiveb. Judicial Independence• 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…’

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3. Separation of Powers in M’sia & UK• 3. Relationship between Judiciary & Executiveb. Judicial Independence• 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.’

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3. Separation of Powers in M’sia & UK• 3. Relationship between Judiciary & Executiveb. Judicial Independence• 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.

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3. Separation of Powers in M’sia & UK• 3. Relationship between Judiciary & Executivec. 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.

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4. Checks and Balances

• 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.

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4. Checks and Balances • 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.

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5. Limited government• 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.

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5. Limited government• 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.

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2 constitutionalism lecture

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