UNIT 2

1. UNIT 2

2. Definition of Constitution • What is a Constitution; • Funk & Wagnall’s Standard College Dictionary-”the fundamental laws & principles that normally govern the operation of a state or association” • The American Political Dictionary-”a fundamental or ‘organic’ law that establishes the framework of government of a state, assigns the powers & duties of governmental agencies & establishes the relationship between the peoples & their government”

3. K.C. Whare in (Modern Constitutions, 1975:1) - “the whole system of government of country, the collection of rules which establish and regulate or govern the government. These rules are partly legal…and partly non-legal or extra-legal, taking the form of usage, understandings, customs or conventions…” • A constitution normally is a basic document of a state or country. • It outlines not only the basic structural framework of government of a given nation but it also lists down the basic guarantee provided for it citizens that must be up-held at all times. • A constitution is thus the highest law or authority of a a nation

4. The term ‘constitution’ is used in two-senses; • The body of legal & non-legal rules concerning the government of a state (original sense) • A single written document having special legal status, which establishes the state, & sets out the structure & powers of the state (second sense)

5. Why we need a constitution? • A constitution normally consists of general provisions of laws that given nation considered important. • It is safe to say that it covers just about everything conceivable at the time of framing the constitution. • However, what were not covered then could be easily added through various amendments that may be made later. • What is general provisions of laws? • The Constitution of any given nation would cover the main areas such as: • Fundamental guarantee of individual’s rights to liberty • Power and the organization of power relations between the individuals and his/her government • The ideology that would spell out how the government will be led

6. Sources and Types of a Constitution • Where does this legitimacy come from? • A constitution is a reflection of the society that created (social contract), as such it represent s the common will of the people. • It emerges from and based on the experiences of members of the society. • The word ‘sources’ contain several meanings which may include;

7. Historical sources • Legal sources • Places where the law can be found • If we refer to “sources” as the legal rules that make up the law-can classify law into written & unwritten law.(sec1&2)

8. There are basically two type of constitution; • Written • Unwritten • A written constitution is one that has in a single written document provisions that have been enacted as laws of a country. • Countries with written constitutions are such as; the USA, Canada, Malaysia & so do most of countries in the Commonwealth. • An unwritten constitution is one in which there is no single body document that can be called a constitution. • This is represented by the United Kingdom, which is a common example of a country without a written constitution.

9. Sources of laws are governed by various sources such as Malaysian Laws can be divided into; • Written Law • Unwritten Law • Islamic Law

10. Written law is the most important source of law and refers to portion of Malaysian Laws. • Written law such as • Federal Constitutions-Constitution of Malaysia) • State Constitutions-Constitution of Kelantan, Selangor, Perak etc. • Legislation by the Parliament & State Assemblies • Subsidiary Legislation

11. Unwritten law is mainly comprised of; • English Law • Judicial Decisions/ Precedents • Customs • FUTHER DISCUSSION IN UNIT 3

12. However, some scholars have argued that this could be misleading because although there is no single document or body of documents that represent a British Constitution • It can however be gathered from several important sources such as statutes, judicial precedents and juristic writings. • Lastly, in countries that have written constitution, supremacy rests with the Constitution

13. While in Britain, the British parliament is supreme. This means it can make law and there is no power that can invalidate it. • The differs from countries with written constitutions where the constitution is supreme. • Usually laws made can be invalidated if they had been made & found to be in conflict with the provisions of the constitution

14. Islamic Law • Since Islam is the religion of the federation, this law has been applied & is increasingly being applied & practiced in Malaysia • For example, in matters relating to commercial transactions (such as Islamic banking), in maintaining pertaining to family (such as marriage & divorce), inheritance & others

15. The head of the Muslim religion in a state is the Sultan except PenAng, Malacca, Sabah & Sarawak-head by YDPA • The Islamic law applicable in Malaysia adopted or according to; • Shafi school • Malay adat (custom) • Then both of them are modified by Muslim law (Islamic Law)

16. In Malaysia as a whole, there is a separate system of Muslim Courts, comprising; • The Courts of the Chief Kadis • The Assistant Kadis • The Appeal Committee

17. Jurisdiction of Malaysian Courts • Courts in Malaysia can be divided into three parts:- • Superior Courts • Subordinate Courts • Special Courts with Specific Jurisdiction

18. Superior Courts • Based on Article 121 of Federal Constitution the Superior Courts consists;- • Federal Courts (Supreme Courts) • Courts of Appeal • High Courts (Malaya & Borneo)

19. Subordinate Courts • Based on Section 3 (2) of the Subordinate Courts Acts 1948, the Subordinate Courts consists;- • Session Courts • Magistrate Courts • Penghulu Courts

20. Special Courts with Specific Jurisdiction • These courts are being governed by their own Statutes namely;- • Juvenile Courts-Child Act 2001 • Below 18 years old • 14 years and below cannot be sent to be imprisoned • If serious crime e.g. murder-can be imprisoned • Sent to the rehabilitation centre or School e.g Henry Gurney School

21. Industrial Courts-based on the Industrial Relations Act 1967 • Syariah Court-subject to relevant Federal Territories law and States law. • For example in the Federal Territories the following statutes are applicable Syariah Criminal Offences (Federal Territories) Act 1997, Syariah Criminal Procedure (Federal Territories) Act 1997 & Syariah Court Evidence 1997.

22. The Features of Malaysian Constitution • Features of Malaysia Constitution can divided into 15 Part 183 Article and 13 Schedule. • But in our class just a few part only that will be discuss, such as Part I, Part 2, Part 3, Part 4, Part 8 & Part 12

23. PART 1

28. PART 2

40. PART 3 CITIZENSHIP

42. PART 4 THE FEDERATION

46. PART 8

48. PART 12