Topic 1 : Concept of

Constitution

Subject : Constitutional Law I

Subject Code : UCL 1612
Lecturer : Mr. Hafidz Hakimi Bin Haron

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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

Meaning of Constitution and Constitutional Law

Sources of Constitutional law

Constitution and Organs of the State

Content of Constitution

Classification of Constitution (Written and Unwritten)

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?

 CAN YOU TELL ME WHICH COUNTRY

HAVE THE SHORTEST CONSTITUTION
IN THE WORLD?
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 Sources of Constitutional Law
• Conventions
Non • Treaties
Legal
Rules • Customs
• Royal Prerogatives

• 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

Executive Organ Legislature Organ

• Formulating • To make , amend and
government’s policy, abolish law
enforcing and • e.g : Dewan Rakyat
implementing laws as (House of
well. Representative) and
• e.g : Cabinet Dewan Negara (Senate)

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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
• Rigid ; since it requires special
procedures to be amended.
(See Article 159 (3) of the
Federal Constitution for
instance)
• Constitutional Supremacy ; ie
no authority above the
Constitution
• A written constitution is more
clearer and provides more
sense of certainty
• Existence of Judicial Review ;
court can review
constitutionality of laws passed
by the parliament
Unwritten Constitution
• Flexible ; since there is no
specific methods of amending
the Constitution ; ie same as
amending ordinary laws
• Parliamentary Supremacy , ie
Parliament is the highest
authority
• An unwritten constitution
somehow clouded with
uncertainty and the basic
structure can be easily
tampered with by amendments
• No Judicial Review available.
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 CAN YOU TELL ME WHICH ONE IS
BETTER? WRITTEN OR UNWRITTEN?
WHY?????

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Types of Constitution

Republican
• Republican : Normally the state headed by a
President (e.g : Singapore, United States, India
)

and • Monarchy : Where the head of state is under

the Royal’s power i.e Yang Dipertuan Agong,
Queen (e.g : United Kingdom, Malaysia, Japan)
Monarchy

Unitary
• Unitary : All state powers are vested by the
constitution in one central organs. (e.g :
Germany, The United Kingdom, Portugal)

and • Federal : means that government powers are

divided between the central organs and the
organs of the state (e.g : Malaysia , United
Federal States, European Union )

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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

• A regulatory mechanism to the organs of • Philosophical/spirit/concepts/ ideas

the Federation. E.g Malaysia :- behind the law / mechanism to safeguard
• Executive the interest of Citizens. E.g Freedom of
• Legislative speech, Freedom of Religion, separation
of powers, rule of law.
• Judiciary
• Focusing more onto specific rights, since
these rights are vital in a democratic
environment. However Imposing
limitations on rights are permitted but
must be reasonable.
• Also deals with ‘limited government’
where the government must adhered to
the rules and administered according to
laws as well as accountable to all its
actions.
• Enabling the doctrine of ‘check and
balance’ between the organs of the
government.

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 Separation of
powers

CONSTITUTIONALISM Rule of Law

gives birth to :
Limited
government
Check and
Balance
Good
Governance 18
Conclusion
 Constitution cannot be described or
understood without cross reference to its
history, political motives, sources of law,
social background etc.

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