Classifying Constitutions

Written/Codified and Unwritten/Uncodified

A written constitution is one contained within a single document or a series of documents, with or without amendments, defining the basic rules of the state. It exists in a concrete form as for example, the Constitutions of Malaysia, USA and India. A written constitution is a product of deliberate creation at a particular moment in the nation's history. A written constitution is the supreme and highest law of the land, the law of laws, the grundnorm. It is the law on which all other laws rest. It is the highest rule in the legal pyramid, the apex of the hierarchy of norms. It provides the yardstick for testing the validity of other laws. In most countries, the supremacy of the constitution is upheld by the judiciary by the power of judicial review; the power of the courts to invalidate executive and legislative actions on the ground of unconstitutionality. In case of conflict between the Constitution and an ordinary law, the courts will declare the ordinary law to be null and void as it is 'ultra vires' the constitution (beyond the power). A written constitution is rigid and its principles are entrenched; hard to enact,amend or repeal. It is deemed to be rigid.

An unwritten constitution is not codified in a single set of document or a series of documents, unlike the written constitution. An unwritten constitution is seen as a whole body of fundamental rules derived from many legal and non-legal sources and evolved over many centuries. A good example of a country with an unwritten constitution is the United Kingdom. U.K's constitution is derived from six main sources, three legal and three non-legal sources respectively as follows:

1) Act of Parliament

2) Judge-made law

3)Law of the European Union

4) Conventions

5) Customs

6) Textbook writers opinion

An unwritten constitution is flexible, it is easy to amend( by simple majority). The Parliament and not the Constitution is sovereign.

Main differences between written and unwritten constitutions:

1) A written constitution is said to be rigid, whereas an unwritten constitution is said to be flexible.

2) A written constitution reign supreme. In contrast, Parliament reign supreme under an unwritten constitution.

3) A written constitution has a Bill of Rights ( rights are positively given), an unwritten constitution does not have a Bill of Rights (rights are negatively given/residuary)

4) A written constitution is perceived as clearer and more certain. On the other hand, there is absence of clarity and certainty under unwritten constitution (this perception is debatable)

5) A written constitution attracts greater reverence and public loyalty. This is said not to be the case under unwritten constitution.

6) Under a written constitution, the judiciary can review an Act of Parliament and deem it void if it is unconstitutional. Under an unwritten constitution, the judiciary is not able to question an Act of Parliament.

Rigid and Flexible

A flexible constitution simply refers to a constitution where all laws of the constitution can be amended by a simple or ordinary law-making process. All Acts are equal since there are no entrenched fundamental laws. The Parliament is sovereign; can make,amend or repeal any laws as it wishes. In other words, flexibility means absence of special procedures in enacting,amending or repealing any given law. UK has an unwritten constitution, thus the Parliament can make,amend and repeal any laws by a simple majority. Although the Parliament has unlimited law making power theoretically, in practice however, the Parliament does not do so as it is dependent upon the support of the electorate. The Parliament is also pressured by the EU after the passing of the Human Rights Act 1998, giving positive rights to the citizens.

A rigid constitution refers to a constitution where there are special procedures for enacting, amending or repealing any given law. In other words, the constitution is said to be rigid when there is a special procedure for constitutional amendment, different from and more complex than that required for passing ordinary laws( which require simple majority). Examples of this special procedures for amendment include the two-thirds majority system as in Malaysia or referendums (a direct vote in which an entire electorate is asked to accept or reject a proposal)as in Switzerland. The United States and Malaysia are supposed to have a rigid constitution since it is written. The U.S amended their constitution only 8 times between 1900 and 1990. However, in Malaysia, the constitution is amended around 650 times since Independence. This shows that even though Malaysia has a written constitution, and it is supposed to be rigid with a two-thirds majority system, the huge number of amendments has shown the ease in which the constitution can be amended. This is because the government has secured a two-thirds majority in the Parliament all the while except in 1969 and in 2008. As a conclusion, a country with either a rigid or flexible constitution in theory might actually be in reverse practically. For example, UK has a flexible constitution theoretically, but it is actually rigid in reality.

Republican and Monarchical

Constitutions may be classified according to whether they are Republican or Monarchical. A Republic is a state having as its Head of State a democratically elected President (most of the time), answerable to the electorate and to the constitution. An example of a country practicing Constitutional Republic is the United States. U.S has a President elected by the people and is responsible to enter into treaties, make declarations of war and etc.

In contrast, Malaysia has adopted the Constitutional Monarchy system as has been practiced by the United Kingdom. The United Kingdom has a Queen/King as its Head of State whereas in Malaysia, the YDPA is the Head of State and holds wide official and ceremonial powers. The YDPA is required to act in accordance to the Prime Minister’s advice.

Supreme and Subordinate

A ‘supreme’ constitution is one whose powers are not subjected to any external superior force. Conversely, a subordinate constitution is one whose powers are limited by some higher authority. For example, in Malaysia, the Constitution is supreme where it is the highest law of the land; no other laws can ‘ultra vires’ the constitution. On the other hand, the Parliament is subordinate as it can only enact or amend laws provided that they are in line with the constitution. The constitution in UK is in reverse, where the Parliament has unlimited law-making power and all other legal or non-legal rules are subordinate to it.

Federal and Unitary

A ‘federal constitution’ means that governmental powers are divided between the central organs of state power and the organs of individual ‘states’ or provinces which make up the federation (federalism). The division of powers is already set out in the written constitution and such division shall remain intact as long as the constitution remains supreme. For example, in Malaysia, Article 74 of the Federal Constitution deals with the subject matter. The central government cannot remove the power of certain areas.

A ‘unitary constitution’ means that all state powers are vested by the constitution in central organs. In other words, there is no traditional regional government. The United Kingdom has a unitary constitution where the Westminster government is the central authority for Northern Ireland, Wales and Scotland. However, after the passing of certain Acts, powers are given to the said three regions to fulfil certain functions although the powers may be taken back since it was given voluntarily in the first place. Such process is also known as devolution.

Separated and fused

A constitution may also be classified as having separated or fused powers. Separated powers or separation of powers means that the three main organs of the state; executive, legislative and judiciary should be separated. The objective of separation is to provide checks on the exercise of powers by each organ and to prevent the potential for tyranny. In Malaysia, the constitution provides for functions of each organ separately although there may be parts overlapping.

Fused powers or the fusion of powers means that all of the organs of the state are fused together. Countries with such constitutions are usually totalitarian or monarchical in nature. Under such a constitution, a single figure or body will have the sole power to enact laws, administer the state and to adjudicate upon the law. (judge, jury and executioner)