CONSTITUTIONAL LAW l

LAW 437

ISMAIL BIN BADIUZZAMAN

B.Sc. (Maths/Stats) York Univ. Canada,

LL.B (Hons) (UiTM),
LL.M (Malaya),
Post Graduate Dip. Syariah & Practices (UiTM)
Advocate & Solicitor

Room C1 101
Tel: 55211047/ 012-2321166
ismailbb2000@yahoo.co.uk
LECTURE ONE

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.
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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
LECTURE ONE


REQUIRED TEXT AND REFERENCES
1. Prof Shad saleem faeuqi, Document of Destiny
2. Suffian, Lee and Trindale, The Constitution of Malaysia
- Its
Developments 1957 1977, Oxford University Press,
1978
3. Rau, K.V.P., Federal Constitution of Malaysia - A
Commentary
4. Jaya Kumar, Constitutional Cases from Malaysia and
Singapore, Malayan Law Journal, 1976
5. Wu Min Aun & Hickling, R.H, Hicklings Malaysian
Public Law, Longman, 2003
6. Suffian, Lee and Trindale, The Constitution of Malaysia:
It's Development: 1957 1977, Oxford University Press,
1978
7. Sheridan and Groves, The
Constitution
of Malaysia,
LECTURE
ONE
th

9. Trindale and Lee, The Constitution of Malaysia:

Further
Perspectives and Developments, Oxford University
Press, 1986
10. Mohd Suffian Hashim, An Introduction to the
Constitution of Malaysia, Government Printers, 2nd
Ed. 1976
11. Lee, Thio Li-Ann and Kevin Tan Yew,
Constitutional Law in Malaysia and Singapore
Butterworths, 2nd Ed. 1997.
12. Harding, Andrew, Law, Government and the
Constitution in Malaysia, Malayan Law Journal, 1996.
13. Aliran, Reflections on
the Malaysian Constitution,
LECTURE ONE
Aliran Kesedaran Negara, 1998

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
LECTURE ONE
be switched off or switched to silent mode

LESSON PLAN
Wk 1 Constitutional Law
Wk 2 Constitutionalism
Wk 3 Historical Development of Msia
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

ONE
Wk 15 Current Legal LECTURE
Issues

Assessment
a. Course work 30%
b. Final Examination 70%
c. Total 100%
LECTURE ONE

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.
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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
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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.
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Classifications

Written / Unwritten
Rigid / Flexible
Enacted / Evolved
Legal / Real
Codified / Uncodified
Dignified / Efficient
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Written Constitution
Document or series of document.
Codified in a single document.
Supreme law of the country
Constitutional Supremacy (Msia:
Art 4(1) of the FC)
Enacted constitution
Countries with written
constitutions are: the United
States of America, India and
Malaysia.
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Written Constitution
Derived from events that shaped
the constitution:
USA American Revolution
Malaysia Establishment of the
Reid Commission Merdeka
Agreement 1956

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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.
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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

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.
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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

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

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.
LECTURE ONE

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.
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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.
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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.
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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.

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Advantages - UNWRITTEN
Constitution
Flexibility - the provisions in the
Constitution can be easily
amended & repealed.
Able to respond quickly to
emergencies/ contingencies.

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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.
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Disadvantages - UNWRITTEN
Constitution
Parliamentary Supremacy
unlimited powers to make laws
on any matters.
Flexibility provisions can be
easily changed.
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