Topic 1: Concept of Constitution
Topic 1: Concept of Constitution
Topic 1: Concept of Constitution
Constitution
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Learning Objectives
By the end of this lecture students will
understand the concept and sources of
Constitution
By the end of this lecture the students
will understand the concept of
Constitutionalism
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Table of Contents
Introduction
Content of Constitution
Types of Constitutions
Constitutionalism
Constitution v Constitutionalism
Conclusion
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Introduction
Constitution is not a ‘standalone’ subject, it cannot be
understood without reference to other aspects; ie
culture, history, demography of the society, political
factors etc.
Ex: Malaysian Constitution had been largely influenced
by pre colonial concept of sovereignty, authority etc
and blended in with native values of rules ; Sultanate
Institution, the position of Islam, Bahasa Malaysia, etc.
Constitution is the mother of all other laws – cannot
be conflicted with other rules. See Art. 4 of Federal
Constitution.
Constitution are varies from one state/country to
another.
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Meaning of Constitution
Prof Aziz Bari: Constitution refers to a set of rules which
determine the manner the institutions are to be set up,
powers to be distributed and the justice to be administered.
Oxford Dictionary of Law : The rules and practices that
determine the composition and functions of organs of
central and local government in a state and regulate
relationship between the individual and the state.
Oxford American Dictionary of Law : A constitution is a set
of fundamental principles or established precedents
according to which a state or other organization is governed
Can also be defined as : A Constitution is a set of rules,
generally written, which identify and regulate the major
institutions of the state and govern the relationship between
the state and individuals.
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Meaning of Constitutional Law
Jurist : The rules which regulate the
structure of the principal organs of
government and their relationship to each
other, and determine their principal
functions.
It advocates the concept of separation of
powers, rule of law, etc.
A foundation of a state governance.
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CAN YOU TELL THE DIFFERENCE
BETWEEN CONSTITUTION AND
CONSTITUTIONAL
LAW???????????????????????
Is Constitution is a book?
• Statutory sources/Legislations
Legal like Acts of Parliament
rules
• Judicial Precedents/Case Law
Note : The UK’s unwritten constitution’ is derived from both the legal and the non-legal
sources. In Malaysia, one can find the ‘constitution’ from a single set of a document called the
‘Federal Constitution’ or from the 13 State constitutions which off course must be in line (in
terms of provisions) with the Federal Constitution. (See Articles 4 and 75 of the Federal
Constitution) 8
Constitution and Organs of the
State
Judicial Organ
• To interprets the law passed
by the legislative organ and
settles judicial disputes.
• e.g : Courts
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Content of Constitution
Ideology of a state ; Democracy? Monarchial?
Socialist? Constitutional Monarchy?
Identify the powers, functions and limitations of
the three organs of the Federation., i.e the
executive, legislature and the judiciary.
Citizen’s rights and interest. Example; Freedom of
Religion, Freedom of Speech, Freedom of
Association (see Article 5-13 of the Federal
Constitution)
A stipulation of the nature of citizenship (see Part
III of the Federal Constitution)
A stipulation of the territory governed by the
constitution
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Classification of Constitution
Written and Unwritten Constitution :
Written Constitution :
◦ Refers to a single enactment and codification of
constitution into a single document ; E.g: The
Federal Constitution
◦ A written constitution is the supreme and the
highest law of the land, the law of laws, the
grundnorm
◦ Other laws must be conform with it, as well as
the source of which all other laws derived from.
Thus this illustrates ‘Constitutional Supremacy’.
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Classification of Constitution
Unwritten Constitution
◦ Refers to a Constitution which is not reduced to
a single, comprehensive document, but instead it
derives from many sources and evolved over
many centuries. E.g; The United Kingdom
Constitution
◦ Its sources are written as well as unwritten, legal
as well as non legal, formal as well as informal.
◦ Thus instead of ‘Constitutional Supremacy, it
reflects ‘Parliamentary Supremacy’ because there
is no distinction between amending the ordinary
law or the constitution.
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Distinctions between written and
Unwritten Constitution
Written Constitution Unwritten Constitution
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Types of Constitution
Republican
• Republican : Normally the state headed by a
President (e.g : Singapore, United States, India
)
Unitary
• Unitary : All state powers are vested by the
constitution in one central organs. (e.g :
Germany, The United Kingdom, Portugal)
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Constitutionalism
“Constitutionalism” is the ideal of the Constitution.
Lack of consensus on definition
But according to the Supreme Court of Canada : “the principles of
constitutionalism requires that all government action comply with
constitution”
W. Waluchow : “ Constitutionalism is a set of rules or norms
creating, structuring, and defining limits of, government authority”
Generally, Constitutionalism concerned with ;
◦ A concept under public law that recognizes both the necessity
government and the freedom of individual.
◦ Thus, the term constitutionalism denotes a constitution not only of
powers, but of restraint as well.
◦ 2 Main key elements under constitutionalism ;
Rights Provisions (see Article 5-13 of the FC)
Structural Provisions ( separation of powers, representative system ie election etc)
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Constitution Vs Constitutionalism
Constitution Constitutionalism
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Separation of
powers
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