Rule of Law

The principle of the 'rule of law' can be traced back to the writings of philosophers in ancient Rome and Greece. For example, Aristotle said that 'the rule of law is preferable to that of any individual'. He argued that government by laws was superior to government by men. Basically, the rule of law embodies the basic principles of equal treatment of all people before the law, fairness and both constitutional and actual guarantees of basic human rights. It implies the supremacy of law and that all laws must conform to certain minimum standards for instance protection of civil liberties. The concept of 'rule of law' is most popularly explained by AV Dicey in his 3 postulates.

Narrow definition: The rule of law means everyone must follow the rule of the regimes.

Wider definition: The law is supreme and that all laws must conform to basic standards of human rights.

Friedrich Von Hayek

: "... stripped of all technicalities this means that government in all its action is bound by rules fixed and announced beforehand – rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one’s individual affairs on the basis of this knowledge."

AV Dicey

1) No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. The rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.

2) No man is above the law; every man and woman, whatever be his or her rank or condition; from the Prime Minister to the tax collectors, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.

3) People's rights are better protected under the Common law than under any document which purport to give rights.

Application of the concept in Malaysia

Article 4 of the FC is to establish the Constitution as the basis of the 'rule of law'

Article 8(1) & (2) advocates for equality irrespective of rank, status or gender.

Case laws:

Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187

- Raja Azlan Shah observed that 'The Constitution is not a mere collection of pious platitudes. It is the supreme law of the land embodying 3 basic concepts: fundamental rights, federal division of powers and separation among the executive, legislature and the judiciary...expressed in modern terms that we are government by laws, not men".

PP v Mohamed Ismail [1984] 2 MLJ 219

- the defendant was charged with drug trafficking punishable with life imprisonment or death under S.39B(1) of the Dangerous Drugs Act 1983. While his trial was pending, the law was amended providing a mandatory death penalty. The Public Prosecutor invited the court to impose the enhanced penalty

- The Court refused and held that the amendment could not apply to the defendant's case as it was enacted after the offence was committed.

Lee Gee Lam v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1993] 3 MLJ 265

- the order of detention stated a number of grounds on which the detainee was apprehended with the word 'or' and not 'and' in between.

- The court held that the statement of grounds in the alternative denied the detainee his constitutional right to know precisely the reason why he was being arrested.

Chai Choon Hon v Ketua Polis, Daerah Kampar [1986] 2 MLJ 203

- A condition, attached to a police permit to hold a DAP dinner, that there should only be seven speakers, was struck down because the permit already imposed a time limit, which rendered the condition unnecessary.

Whether the concept of Rule of Law is applicable in Malaysia ( Based on Dicey's 3 limbs/postulates)

The rule of law is inapplicable in Malaysia under each postulate:

1st part of the 1st Postulate

- The existence of the Internal Security Act 1960. The Act was first introduced to curb communist threat in Malaysia. The Home Minister is given the discretion to detain a person for 2 years without a trial. If the order ends, the HM can order for the person to be detained again; possibly indefinite. The Act was passed under Article 149 of the Federal Constitution which allows the passing of Acts against subversion, allowing the suspension of Article 5,9,10 and 13 relating to the citizen's rights. Persons detained under ISA are allowed to file a petition of Habeas Corpus and also to apply for judicial review. However, the judge will only see whether the order was properly served on the person and whether the order is valid or not. As long as it is properly served and the order is valid, then the court cannot question the order.

- Next, is Article 150 which allows the YDPA to proclaim emergency at the advice of the Prime Minister. During the Emergency, almost all Articles of the Federal Constitution will be suspended, meaning that the rights of the citizens can be violated. The Parliament can pass laws to restrict the rights of people even if it contradicts the Federal Constitution.

- The government can also acquire a person's property if they want to. Article 13 gives the right to own property. However, Article 13 also provides that the government can compulsorily acquire the property provided that they award reasonable compensation. The judges are not allowed to question such order.

- Parliamentary privilege is also against the 1st postulate of Dicey's. Under such privilege, the parliament has the freedom of speech, immune against civil arrest and is able to punish both members and non-members for breach of privilege and contempt of Parliament. Contempt of Parliament is hard to define as it is wide enough to include almost everything. For example, a person shouting outside the Parliament can also be punished for contempt of Parliament. If the Parliament chooses to punish a person for contempt of Parliament, the Parliament will be the one punishing the person, and can even detain him until the end of the Parliament's session. In Stockdale v Hansard, Hansard printed and published a report stating that an indecent book published by Stockdale was circulating in Newgate. Stockdale sued Hansard and won. Hansard was ordered not to pay for damages by the House and sought refuge there. Sheriff of Middlesex was sent to levy execution on Hansard's property. The House of Commons had the Sheriff arrested and imprisoned for contempt of House.

2nd part of the 1st Postulate

- The Prime Minister has wide arbitrary and discretionary power. The PM has the power to appoint the judges by advising the YDPA, choose the ministers to be in the Cabinet, sack ministers. The Cabinet is chosen by him, thus, the Parliament consists of members mostly from his party. Therefore, the PM is able to introduce new Bills that will definitely pass as laws since his political party is the majority in the Parliament. No one is able to control the PM. The PM can advise the YDPA to declare emergency and no one can question the declaration of emergency or the laws passed during the emergency. The Prime Minister also appoints the Attorney General by advising the YDPA.

- The Home Minister has the power to determine whether or not to arrest and detain a person under the Internal Security Act. No one has the power to question him. Theoretically, the HM can detain the PM, but in reality, it will never happen.

- The Attorney General has wide discretionary powers in Criminal issues. He can determine whether to prosecute a person or not in criminal matters and nobody can question his decision. Such discretionary powers will lead to injustice especially if he chooses not to prosecute an actual criminal.

- The YDPA has the power to pardon offenders and no one is able to question his authority in pardoning offenders.

- The Police in Malaysia through the Police Act has wide discretionary powers. Police officers can determine whether or not to arrest a person. They have absolute discretion on whether to give permits to assemblies. The Courts can quash the decision of the police if there is an error in the procedure of applying for the licence in the part of the police. However, after the Judicial Crisis of 1988, the court's judicial review is very slow. The Police can also choose to stop any car and to hold roadblocks.

- The Immigration department has the power to choose whether or not to give out passports. After the judicial crisis, the judges do not question the decisions anymore.

2nd Postulate

- The YDPA and the Sultans are not subjected to the ordinary courts, but a special court is set for them. After the 1993 constitutional crisis, the Sultans are no longer immune.

- The soldiers are also not subjected to the ordinary courts but the Court-martial. They are subjected to more laws as compared to regular citizens.

- The foreign diplomats in Malaysia are above the law; they cannot be charged for any crime committed in Malaysia.

- The judges are also free from certain laws when they are sitting in the court.

- The court system in Malaysia is also not in accordance with the rule of law since there is the Syariah Court system and the ordinary court system. The Syariah court only deals with Islamic matters pertaining to Muslims. In order to uphold the rule of law, a country cannot have 2 different court systems.

- Administrative Tribunals are also against the 2nd postulate. The tribunals deals with certain issues and they are not part of the courts(judiciary). They belong to the executive branch.

3rd Postulate

- The courts are supposed to uphold the rights of persons. The Federal Constitution does not ensure that the judges can play their roles properly; it is up to the judges themselves. The best way to ensure that rights are protected is to have a document giving positive rights and also judges that are willing to protect the rights of the people.

Joseph Raz's 8 Principles on the Rule of Law and its application in Malaysia(Briefly)

1)All laws must be prospective, open and clear

- Judicial decisions are generally retrospective in nature, because the judges' decision is only arrived at after a case has been brought to court. A person might commit a crime non-existent before the judge's decision and yet punished for it like in the case of Shaw v DPP

Shaw v DPP

- The defendant published a booklet called Ladies' Directory advertising the names and addresses of prostitutes. Shaw was convicted on a charge of corrupting public morality even though such offence was not existent at the time he published the booklet.

2)All law must be stable and not constantly changed.

- In Malaysia, the laws are not stable since the constitution has been amended at least 650 times since Independence. In US, the constitution has only been amended 8 times in 90 years.

3) Law-making process must be open, stable and clear.

- In Malaysia, the Parliament is controlled by the Executive. The Bills passed are not properly debated since the PM can use the party whip to ensure that Bills go through.

4) Judiciary must be independent.

- The 1988 Judicial Crisis clearly shows that the judiciary isn't independent since the PM was able to sack the Chief Justice Tun Salleh Abas and 2 other judges. Ever since the crisis, the constitution has been amended to divest the judges of 'the judicial power of the federation' and to grant them 'judicial powers' as Parliament might grant them. Thus, the Constitution does not protect the judges.

5) Natural justice must be observed

- Nemo iudex/judex in causa sua ( No one should be a judge in their own cause)

- Audi Alteram Partem (Hear the other party)

6) Courts must carry out judicial review.

- The Constitution is silent on Judicial Review, even more since the Judicial Crisis of 1988.

7) Courts must be easily accessible

- The courts are too expensive, slow and the cases get delayed( up to many years)

8) Crime prevention agencies must not have too wide discretionary powers.

- Too many discretionary powers are given under the Police Act 1967, i.e. power to grant permits, hold roadblocks,etc

Distinctive Features of the Malaysian Constitution

The Malaysian Constitution cannot be accurately described or understood without making reference to its history. The Constitutional development has been influenced inter alia, by pre-colonial indigenous traditions of sovereignty, colonial conceptions of executive authority, indirect rule, federalism and social concerns during the immediate pre-independence and post-independence period.

(a) Position of Islam

Article 3(1) of the Federal Constitution provides that " Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation." Even though Islam is adopted as the official religion of the Federation, Malaysia is not an Islamic state. The Federation is not an Islamic State according to the White Paper on the Constitutional Proposals for the Federation of Malaysia stating that it is a secular state. Ex Prime Minister Tunku Abdul Rahman further suggests that the Federation is not an Islamic state. He stated it in the Federal Legislative Council that "...this country is not an Islamic state as it is generally understood. we merely provide that Islam shall be the official religion of the State".

Che Omar bin Che Soh v PP [1988] 2 MLJ 55

- Court held that though Islam is the religion of the Federation, it is not the basic law of the land and Art. 3 imposes no limit on the legislative power of Parliament.

Ainan bin Mahmud v Syed Abubakar bin Habib Yusoff & Ors [1939] MLJ Rep 163

- Court held that the Evidence Act applies to the exclusion of Islamic law

Meor Atiqulrahman bin Ishak & Ors v Fatimah binti Sihi & Ors [2006] 4 CLJ 1

- The court by majority ruled that it is not everything that the Prophet did or the way he did it that is legally or religiously binding on Muslims or preferable and should be followed. From the Federal Court's decision, it would appear that freedom of religion does not extend to rituals that are considered to be optional i.e wearing of turban

Halimatussaadiah binti Haji Kamaruddin v Public Services Commission, Malaysia & Anor [1994] 3 MLJ 61

-The issue was whether the wearing of purdah is an Islamic injunction ought to be followed strictly by Muslim women

- The court held that "...The wearing of the purdah has nothing to do with the appellant's constitutional right to profess and practice her Muslim religion"

Article 3 of the Federal Constitution must be read with Article 11. Although Art. 3 provides for the freedom of religion, Art. 11(4) limits such freedom as propagation of missionary activity among Muslims may be regulated by States and Federal Laws. Article 11(5) states that all religious freedom is subjected to public order, public health, and morality whereas Article 12(4) provides that the religion of a person under 18 years is to be decided by his or her parents or guardian.

Teoh Eng Huat v Kadhi, Pasir Mas & Anor [1990] 2 MLJ 301

- Court held that the conversion of a 17 year old Buddhist girl to Islam without her parents' consent was of no effect.

(b) Special Position of Certain Classes

Under the Federal Constitution, a special treatment is accorded to the Malays and the indigenous people of Sabah and Sarawak. Article 153 of the FC assigns the YDPA with the responsibility of protecting the special positions of the Malays and indigenous communities of Sabah and Sarawak. This responsibility is carried out in accordance to the Cabinet's advice. Besides that, the YDPA may, in order to promote purposes of Article 153, reserve such proportion as he deems reasonable of positions in public service; scholarships; educational and training privileges or facilities; permits or licences for the operation of any trade or business; and places in institutions of higher learning.

It must be noted that the 'special privileges' accorded to the Malays and indigenous people are actually in line with the spirit of the Federal Constitution. It is not in conflict with Article 8(1) which provides for equality before the law due to the exceptions expressly stated in such Article. The funny thing about Article 153 is that in most constitutions, special privileges will be accorded to the minority whereas in Malaysia the majority is accorded with special privileges.(due to the agreement before Independence) Article 160(2) also defines the term 'Malay' as someone professing the religion of Islam, habitually speaks the Malay language, conforms to Malay custom, etc. Article 161(A) defines 'indigenous people in Sabah & Sarawak as from communities of Bisayah, Sea Dayak(Iban), Land Dayak(Bidaya), Melanau,etc. These Articles are unique because most constitutions in the world including U.S do not define a race. If a Non-Malay satisfies the conditions set out in Article 160, then he or she can also become a Malay.

(c) National Language

Article 152 of the FC provides that the national language is Malay(Bahasa Malaysia), which implied that it must be used for official purposes. However, The Constitution (Amendment) Act,1971 as provided by Article 152 may no longer be questioned, it being considered sensitive. This amendment is unique as the questions relating to national language would be deemed sensitive, different from other constitutions. 'Official purpose' refers to all dealings with the or by the government whether Federal or State government including the public authorities. 'Public authorities' would include the YDPA, the Rulers or State governors, the Federal and State governments, local authorities,etc. If Bahasa Malaysia is the national language, then what about the previous decision of the federal government policy to use English as a medium of teaching in Mathematics and Science?

Article 152 has an exception, where the YDPA may allow the use of English. For example, communicating with foreign governments or international organisations and also for training conducted by overseas experts for Inland Revenue Department, work relating to accounting, computer, interpretation,etc. Section 4 of the National Language Act 1963/1967 allows the YDPA to permit the use of English Language for such official purposes as may be deemed fit. No one is prohibited or restricted from using, teaching or learning other languages. The constitution allows public fund to be used for the use and promotion of languages of other communities in the Federation. However, languages other than Bahasa Malaysia and English cannot be used as the official medium of instruction in universities.

Merdeka University Bhd v Government of Malaysia [1981] 2 MLJ 356 HC * [1982] 2 MLJ 243 FC

- The appellant applied for the setting up of the Merdeka University that will use Chinese Language as the sole or main medium of instruction.

- The Federal Court held that as the university would be using the Chinese language( considered official by the court) the government was right in rejecting the applicant.

Articles 161 and 161(e) of the FC provides for the use of English and native languages in Sabah and Sarawak. Further limitations are imposed while addressing the usage of Bahasa Malaysia in Sabah and Sarawak. The National Language Act 1963/1967 does not apply to East Malaysia.

(d) The Monarchy or the Malay Sultanates

In Malaysia, the YDPA and the Rulers assume the symbolic role in relation to the legislative and executive acts. These are powers that are generally formal. The law does not expect them to rule in person or to seek control of the day to day administration of government in their States. For example. Article 40(1) & (1A) provides that the King is a constitutional monarch who is bound by the advice of the Cabinet in the entire range of his functions except as to the few matters mentioned in Article 40(2). Such limitation of powers is good in the sense that the YDPA wasn't elected by the people, thus he does not represent them. There are occasions where the YDPA may assert independence such as the appointment of government and the dissolution of the Parliament to pave way for elections. Under Article 40(2)(b), the YDPA can reject the Prime Minister's advice to dissolve the Parliament.

The Conference of Rulers comprising of all the Sultanates may play a crucial role in certain amendments to the constitution, such as the provision on Malay privileges, Islam and Malay Language( Article 38). The Monarchy in Malaysia plays the role of a protector; something that they indicate that they may, when the circumstances warrant, assume more than just a formal or symbolic role.

(e) Citizenship

The concept of citizenship in Malaysia originates with the formation of Malayan Union. Prior to that one had the concepts of state nationality and British nationality or, later citizenship of the UK colonies. As a result of the 'social contract' between the various races, millions of migrants where bestowed with citizenship by the Merdeka Constitution. Under the Federal Constitution, there are four ways through which citizenship can be acquired, namely, by birth and descent(Art.14), by registration(Art.15), by naturalisation(Art.19), and by incorporation of new territory into the Federation(Art.22)

Citizenship provisions are so deeply entrenched that under Articles 159(5) & 161(E), any amendment to such provisions requires a special two-thirds majority in Parliament plus the consent of the Conference of Rulers and of the Governors of Sabah and Sarawak. Even when emergency is declared, Article 150(6A) prevents any tampering with citizenship rights. Citizenship can also be terminated by renunciation or deprivation. Renunciation of citizenship can be rejected by the Federal Government in times of war to prevent citizens from escaping conscription and compulsory service for national purposes permitted under Article 6(2). Deprivation of citizenship is dealt with in Articles 24(1),25,26(1)(2),etc. There are also safeguards under Article 26B(2), 27(2),24(2),etc.

Concept of Constitutionalism

Constitutionalism is a concept under public law that recognises both the necessity of government and freedom of the individual. It places limitations on the powers utilised in governing the governed. In other words, it is the balance between rights of citizens and the rights of the government over the citizens; and such balance is a never ending process. Constitutionalism may also appear as rules which establish and regulate the government. It is essentially an ingredient that makes up the general framework of the rule of law, developed by constitutional thinkers partly to establish an equilibrium between the major organs of governments. It could also be understood as a concept comprising of two key elements; rights provisions and structural provisions. Rights provisions consist of safeguards for all rights citizens should possess such as freedom of speech,association and etc. Structural provisions deal with the structure of the government including separation of powers, representative system, etc. To summarise, the government must be limited in its powers and accountable to its actions.

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 2^nd 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 3^rd 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 2^nd 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.

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)

What is a Constitution?

Narrow sense :

A single set of a document or documents containing the basic or fundamental rules governing the affairs of the state. In other words, a constitution is understood as a single written document having special legal status, which establishes the state, and sets out the structure and powers of the state.

Broad sense:

A body of legal and non-legal rules concerning the government of a state. In other words, a constitution is understood as where the fundamental or basic rules governing the affairs of the state are not in a single set of document.

In Malaysia:

The constitution is the fundamental and basic law of the land. It is the law on which all other laws are based. Article 4(1) of the Federal Constitution : This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

Definition by jurists:

Professor KC Wheare : "...the whole system of government of a country, the collection of rules which establish and regulate or govern the government"

Thomas Paine: " A constitution is not the act of a government, but of a people constituting a government, and a government without a constitution is power without right...A constitution is a thing antecedent to a government; and a government is only the creature of a constitution"

Barnett: “A living, dynamic organism which at any point in time will reflect the moral and political values of the people it governs, and accordingly, the law of the constitution must be appreciated within the socio-political context in which it operates”

Generally, a constitution is a set of rules which determine, among others, the manner the institutions are to be set up, the powers to be distributed and the justice to be administered. In other words, a constitution is a broad set of rules and principles by which a state is governed.