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1 introduction lecture

  1. 1. CONSTITUTIONAL LAW LAW 437 ISMAIL BIN BADIUZZAMAN B.Sc(Maths) York Uni. Canada, LL.B (Hons) (UiTM) LL.M (Malaya) Advocate & Solicitor FACULTY OF LAW UiTM 2011 LECTURE ONE 1
  2. 2. 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. LECTURE ONE
  3. 3. 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. LECTURE ONE
  4. 4. 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]. LECTURE ONE
  5. 5. POINTS TO REMEMBER 1. 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. LECTURE ONE
  6. 6. LESSON PLAN Wk 1 Constitutional Law Wk 2 Constitutionalism Wk 3 Historical Development of M’sia Constitution Wks 4-5 Basic Features of FC Wk 6 Sources of Constitutional Law Wk 7 Constitutional Supremacy vs Parliamentary Supremacy Wk 8 Responsible Government vs Independent Government Wks 9-14 Fundamental Liberties Wk 15 Current Legal Issues LECTURE ONE
  7. 7. Assessment a. Course work 30% b. Final Examination 70% c. Total 100% LECTURE ONE
  8. 8. 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. LECTURE ONE
  9. 9. What is Constitution? • Prescribes the relationship between these organs – emphasis separation of powers • Prescribes the relationship between state & individuals : a. Obligations – impose duties b. Rights – fundamental rights LECTURE ONE
  10. 10. What is Constitution? • Core values of society • Preamble to the Constitution a. Introduction to the purpose & principles behind the Constitution. b. Not legally part of the Constitution. LECTURE ONE
  11. 11. Classifications • • • • • • Written / Unwritten Rigid / Flexible Enacted / Evolved Legal / Real Codified / Uncodified Dignified / Efficient LECTURE ONE
  12. 12. 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. LECTURE ONE
  13. 13. Written Constitution • Derived from events that shaped the constitution: – USA – American Revolution – Malaysia – Establishment of the Reid Commission – Merdeka Agreement 1956 LECTURE ONE
  14. 14. 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. LECTURE ONE
  15. 15. 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 LECTURE ONE
  16. 16. 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. LECTURE ONE
  17. 17. 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 LECTURE ONE
  18. 18. 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. LECTURE ONE
  19. 19. 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 LECTURE ONE
  20. 20. 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. LECTURE ONE
  21. 21. 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. LECTURE ONE
  22. 22. 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. LECTURE ONE
  23. 23. 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. LECTURE ONE
  24. 24. Advantages - UNWRITTEN Constitution • Flexibility - the provisions in the Constitution can be easily amended & repealed. • Able to respond quickly to emergencies/ contingencies. LECTURE ONE
  25. 25. 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. LECTURE ONE
  26. 26. Disadvantages - UNWRITTEN Constitution • Parliamentary Supremacy – unlimited powers to make laws on any matters. • Flexibility – provisions can be easily changed. LECTURE ONE