Definition by jurists:
de Smith: "it involves the proposition that the exercise of governmental power shall be bounded by rules, rules prescribing the procedure according to which legislative and executive acts are to be performed and delimiting their permissible content".
Basic principles to uphold constitutionalism
1. Rule of law
-Rule of law means that the law is supreme and that all laws must conform to basic standards of human rights
- This concept doesn’t really apply in Malaysia. AV Dicey’s 3 limbs are best used to analyse its application
AV Dicey – No man is punishable in body or in goods except for a distinct breach of law before the ordinary courts of the land
For e.g. Under ISA, the Home Minister can detain a person for 2 years without trial and if the order ends, he can detain the person again, possibly indefinite.
- The rule of law is contrasted with any wide arbitrary or discretionary powers
For e.g. the Attorney General has the power to determine whether or not to prosecute a person in criminal
matters and nobody can question his decision
- No man is above the law, every man and woman, from the Prime Minister to the tax collectors, is subjected to the ordinary law of the land
For e.g. the foreign diplomats in Malaysia cannot be charged for any crime committed in Malaysia
People's rights are better protected under the Common law than under any document which purport to give rights
For e.g. The Federal Constitution does not allow judges to play their role properly
2. Separation of powers
- Separation of powers simply means that the state is divided into branches, each with separate and independent powers and areas of responsibility. In Malaysia, the branches are the Executive, Parliament and the Judiciary.
Whether separation of powers is followed
Parliament and Executive
- Executive controls the Parliament. Party Whip is used by the Executive to ensure that all MPs do not oppose the Bill that needs to be passed. Parliament and Judiciary
Parliament and Judiciary
-Judiciary makes law through the doctrine of judicial precedent even though they are not supposed to make law. The bad thing about judge-made law is that it is retrospective.
- YDPA appoints the judges, even though he is from the Legislative body
Executive and Judiciary
- AG can determine whether or not to prosecute a person, and this disturbs the role of the judiciary
- In 1988, Dr. Mahathir sacked the chief justice Tun Salleh and two other judges
3. Ministerial responsibility
-As defined by Marshall and Moody, it simply means that ministers are responsible for the general conduct of government
- There are two types; collective responsibility and individual responsibility
- Collective responsibility encompasses 3 principles, i.e. all ministers must speak with one voice; if there is a vote of no-confidence against the government, the whole government must resign; and there must be cabinet secrecy
- In Malaysia, all ministers do speak with one voice, but sometimes they will abuse the concept of collective responsibility to hide from being accountable individually
- The 2nd principle does not work in Malaysia as the Parliament is dominated by the Executive. This is due to the FPTP system used in Malaysia which encourages the government to have too many seats in Parliament.
- The 3rd principle works in Malaysia. However, ministers sometimes refuse to discuss certain issues by abusing the term ‘national security’
- There are 3 main aspects of individual responsibility, i.e. personal misconduct, departmental error and policy error
- In Malaysia, ministers usually do not resign over personal misconduct. For example, Dato’ Anwar refuses to resign even though he was alleged to have been involved in sodomy
- For the 2nd aspect, ministers in Malaysia do not resign. For example, Samy Vellu’s department made an error in the construction of Highland Towers which led to its collapse and death of many
- For policy errors, ministers do not resign at all. For instance, the decision to revert the teaching of Mathematics and Science to English and eventually back to Bahasa Malaysia shows a policy error, but no ministers resigned
4. Upholding human rights
-For constitutionalism to be achieved, human rights must first be upheld. Human rights refer to all kinds of rights including right to live, right to speak, right to a fair trial and etc.
- In Malaysia, human rights are not upheld sometimes.
- For example, under the Internal Security Act 1960, a person can be detained for 2 years without trial, which breaches the right to a fair trial
- Besides that, Article 13 of the Federal Constitution allows persons to have property, but at the same time, it allows the property to be taken away, which violates the right to property.
- The freedom of speech for Malaysians is also restricted by statutes such as the Police Act, Printing Presses and Publications Act and the Internal Security Act. Under those laws, free speech is regulated and controlled
- Art 150 of the FC also violates a lot of human rights. Under this Article, the YDPA can declare Emergency, which removes many rights positively given to citizens. Furthermore, laws made during Emergency cannot be questioned even if it is unconstitutional
5. Independence of the judiciary
-Independence of the judiciary as defined by Lord Browne-Wilkinson means that ‘A Judge should be free from any pressure from the Government or anyone else as to how decide any particular case’
- It basically refers to the ability of a judge to decide cases on their merits, free of any pressure’
-Judges are not independent in Malaysia. The Federal Constitution does not protect the judges. This is clearly shown in the Judiciary Crisis of 1988. In 1988, Tun Dr. Mahathir sacked the chief justice, Tun Salleh Abas and two other judges possibly because the judiciary often struck down his decisions and not because of any valid reason. He even amended Article 121 of the FC to remove the ‘judicial power’ of the courts
6. The need of Parliament to check on the Executive
-The Parliament is the prime law-making body in the country. One of its main functions is to check on the Executive. The Executive represents the people. Therefore, the Parliament must ensure that the Executive is accountable to the people.
-However, it is not effective because the Parliament is dominated by the Executive due to the FPTP system which encourages the ruling party to have too many seats.
-The PM uses the Party Whip to ensure that important Bills will go through.
-There are many motions to restrict the debates; namely; guillotine motion to cut off the debates, kangaroo motion to skip certain parts of the debate and the closure motion to end the debates.
-However, there are other mechanisms to check on the Executive such as the Select Committees, Question Time and Debates
- Select Committees are used to check on the Ministries but it is ineffective as most of the MPs in the Select Committee are members from the ruling party
- Question Time is used in Parliament for the Ministers to answer questions regarding their ministries but it is not effective as the time allocated for it is too short
-Debates are to compel the government to explain its policies and actions. It is totally ineffective as most of the time, the House is nearly empty. There will be very few actually debating.
- The best reform is to improve the electoral system, as the current system gives too many seats to the ruling party, which is the main factor behind the ineffectiveness of Parliament
7. Proper electoral system that ensures proper representation
-The current electoral system used in Malaysia is the First Past The Post (FPTP) system. This system is bad because it gives too much seats to the ruling party, thus, the government becomes too strong
- This system also doesn’t ensure proportional representation. The number of seats which a party obtains in Parliament is not proportional to the actual total number of votes gained
- There are also many wasted votes. The total number of votes cast will not be considered when it comes to the allocation of seats in Parliament. The votes going to the losing candidates are burnt as they have no value at all
- A Proportional System should be adopted. Proportional systems provide proportional representation where every vote is of an equal value.
- Under systems such as Alternative Vote System and Supplementary Vote System, no votes will be wasted as all votes are taken into account for the allocation of seats in Parliament
- However, a Proportional System destroys the link between the MP and the constituents
-Therefore, a Hybrid System is the best solution. A Hybrid system combines a majoritarian system and a proportional system. An example of a Hybrid system is the Additional Member System. This system combines the advantages of the FPTP system and the Party List System.
- There will be more checks on the Executive by the Parliament as the opposition will gain more seats.
Conclusion
- Constitutionalism is a concept that the government must be limited in its powers and accountable to its actions. To achieve constitutionalism, other principles must first be upheld, i.e. the rule of law, separation of powers, ministerial responsibility, upholding of human rights, independence of the judiciary, the need of Parliament to check on Executive and lastly, a proper electoral system that ensures proper representation.
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