Learning Unit 6

Constitution & the Design of

Government
Objectives

1. To discuss the importance of constitution

2. To discuss classification of constitution
3. To discuss principles of constitutional
design
Learning Outcome

At the end of this Chapter, you should be

able to:

1. define constitution
2. describe classification of constitution
3. explain principles of constitutional
design
Constitution
• order versus anarchy
• order or system called
constitution
• contains certain rules which
define the organs of the
government & how they
originate, their mutual r/ships, &
the r/ships between the
government & the people
• a basic design of the structure
& power of the government and
the rights & duties of its citizens
• no state without constitution
Definition of Constitution

“the basic principles and laws of a nation,

state, or social group that determine the
powers and duties of the government and
guarantee certain rights to the people in it”
Merriam Webster

“the set of political principles by which a

state or organization is governed,
especially in relation to the rights of the
people it governs”
Cambridge
Constitution
• “a selection of legal rules which government the
government of that country and which have been embodied
in a document” (KC Wheare in Moten and Islam, p. 133)

In general, Constitution is a set of fundamental legal-

political rules that:

• are binding on everyone in the state, including ordinary

law-making institutions;
• concern the structure and operation of the institutions of
government, political principles and the rights of
citizens;
• are harder to change than ordinary laws (e.g. a two-thirds
majority vote is needed); and
• meet the internationally recognized criteria for a
democratic system in terms of representation and human
rights.
• How is a constitution created?
• King’s Decree – Napoleon of
France/Nicholas Czar of Russia
• Evolution – Great Britain i.e.
Magna Carta
• Revolution – Iranian
Constitution of 1979
• Constituent Assembly –
Malaysia, Canada, etc
Purpose of Constitution
(Roskin, et al. p. 81-83)
• “A statement of national ideals”
• US: to form a more perfect
union, to establish justice, to
ensure domestic tranquility, to
provide for the common
defense, to promote the general
welfare, and to secure the
blessings of liberty
• 1977 Soviet: to be a developed
socialist society
• Germany: to serve the peace
of the world
• Malaysia:
Rukunegara/National principles
Purpose of Constitution
(Roskin, et al. p. 81-83)
• “Formalises the structure
of gov”
• Who is in power and
what do they do?
• Divides power between
central and regional
government
• “Establishes the legitimacy
of gov”
• A sign of “permanence
and responsibility”
Functions of Constitution (Bulmer, 2017)
• Constitutions can declare and define the boundaries of the
political community. 
• Constitutions can declare and define the nature and authority
of the political community. 
• Constitutions can express the identity and values of a national
community.
• Constitutions can declare and define the rights and duties of
citizens.
Functions of Constitution (Bulmer, 2017)
• Constitutions can establish and regulate the political
institutions of the community. 
• Constitutions can divide or share power between different
layers of national and subnational governments.
• Constitution can declare the official religious identity of the
state and demarcate relationship between sacred and secular
authorities.
• Constitutions can commit states to particular social,
economic or developmental goals.
Classification

• Evolved & enacted constitution

• Unwritten constitution
• Written constitution
• Flexible & rigid constitution
Evolved & enacted
constitution
• Evolutionary changes
• Political institutions molded
& shaped over time
• Case in point is Malaysia
whose constitution has been
enacted many times
according different political
and historical contexts
(>40times, compared with
US, 17 times)
Unwritten constitution
• No single document or
documents forming the
constitution but many
SOURCES describing it
• SOURCES involve statues,
judicial decisions,
precedents, traditional legal
documents, etc
• Case in point is Britain -
political institutions are not
formed formally in writing
but by judicial decisions,
agreements, resolutions &
laws made by “rebellious
parliaments”
• Unplanned & automatic
Written constitution
• Planned system
• Formulated & adopted
by a “deliberate creation”
• Constitution is designed
after taking into
consideration the state’s
political & historical
background and its
population composition
• Malaysia has a written
constitution
Flexible & rigid constitution
• Flexible constitution is easy to
change according to
circumstances - deadlock
rarely occurs among members
of the legislative branch
• Rigid constitution is hard to
change - deadlock often
occurs among members of the
legislative branch i.e.
government “shutdown” in the
US
• Courts become the
“guardians” of the constitution
- i.e. Congress of U.S &
Supreme Court
Good constitution
• Provisions are clear in
meaning
• Must be written
• Should be comprehensive -
brief but covers all areas of
government
• Incorporates people’s
fundamental rights
• Limits power of government
• Should be amendable legally
• Corresponds to the actual
conditions of the state
THE PRINCIPLES OF CONSTITUTIONAL
DESIGN
• Vagueness
- If rules are stated specifically,
it becomes difficult to adapt a
constitution to unforeseen or
changing circumstances
• Long-standing traditions
- If a set of rules is to work, it
must not be too far out of line
with what most people in the
state wish to do
THE PRINCIPLES OF CONSTITUTIONAL
DESIGN
• Amenability
- If a new constitution must come
reasonably close to reflecting the
people’s expectations, it must
also be open to revision or
amendment in response to
changing needs
• Concentration of power
- How much political power should
be concentrated in the central
government and how much should
be distributed among the
governments of cities, of states,
or of regions.
Contents of a written constitution
• Fundamental, civil & political
rights (example in the Malaysian
Constitution)
- ensures personal liberty of
citizens
• Provisions outlining the
organisation of government
- create & outline powers of the
organs of government
• Provision for the amendment of
the constitution
- method or procedure to amend
constitution
Development & expansion of
constitution
• Custom & usage
- respect for the past & high
regard for precedents (previous
case taken as example)
• Judicial interpretation
- ever-changing meaning of words
- different opinions arise
• Statutes
- enacted by the legislature in
order to complete the framework
of government
Development & expansion of
constitution…cont…
• Amendment
- most definite source of constitutional
expansion
- constitution must grow & develop as
the life of the nation changes
• Informal method
- centralisation of power (rotation
system of the CM post of Sabah)
- party system
• Attitude of people
- rights of the indigenous people
- Sabah’s position within the FEM
CONSTITUTION IN MALAYSIA CONTEXT

• The Malaysian Government follows the Constitution of the

Federation of Malaya which was promulgated on Merdeka
day, August 31, 1957 (revised in 1963) in setting up its
administrative and policy making decisions.

• Practices parliamentary democracy and is ruled as a

constitutional Monarchy with Yang di Pertuan Agong as the
head of the country.

• The Federal Constitution of Malaysia divides the authority

of the federation into its Legislative authority, Judicial
authority and Executive authority.

• Specific responsibilities of the federal and the state

governments listed in the Ninth Schedule.
Ninth Schedule

• The Federal List covers the areas of external affairs,

defense, internal security, civil and criminal war,
citizenship, finance, commerce and industries,
shipping, communication, health and labour.

• The State List comprises areas of land, agriculture,

forestry, local government, Muslim Law and several
others.

• In the Concurrent List, the areas covered are

governed by both the Federal Government and the
State Government and include social welfare,
scholarship, wildlife protection, and town and
country planning.
References

“Constitution and Constitutional Government” (Chapter 9,

Moten & Islam, Introduction to Political Science, 3rd
Edition)