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Definition

•Constitutionalism comprised of ideas and theories that essentially put limitations on political power in general, and of the government’s sway over citizens in particular.

•Refer to a number of separate but related features of a democratic political system.

•Constitutionalism  is  concerned  with  both  the  framework as well  as  the  spirit that  breathes within  the  provisions  in  that  framework.

•Constitutionalism  therefore  comprised  two  key  elements:
a) rights  provision and
b) structural  provision

•Rights  provision

–It  consists  of safeguards  for  political  rights  including the  right  to  free  speech, freedom  of  association, etc.

–These  rights operate  as  legal  constraints upon  the  political  process.

—Structural  provision

◦They  include separation  of  powers, representative system, etc.

◦All are  there  to  ensure that  the  government  will  act  in  the interests  of  the  public  at  large, rather  than  those  of  the self-interested  representatives. 

•Control of government power

–Lord Acton – “All power tends to corrupt & absolute power corrupts absolutely”.

–The government must be limited by law.

–It is interrelated with the idea of ‘separation of powers’, ‘rule of law’ & ‘limited government’.

—a. Respect for law

◦Implies loyalty to Constitution by citizens & officials of the State.

◦Citizens must accept the limits on their freedom.

◦Officials must observe the limits on their powers.

◦Similar to the idea of rule of law in which authorities obtain their powers from the law & must act within the law – ‘Government by law & not by men’.

—b. Internalisation of values

◦Implies loyalty to the letter as well as the spirit of the Constitution.

◦Requires commitment to & an ‘internalisation’ of the values & ideals.

◦Demands observance of enacted rules & respect for unwritten & informal practices, conventions, usages & understandings.

◦Sir Ivor Jennings immortal words “provide the flesh to clothe the dry bones of the law”.

•c. Respect for human rights

–Respect for liberty & equality

–Guarantees for human freedom & dignity

–A fair balance between conflicting demands of power & liberty, freedom & responsibility & the might of the state & the rights of the citizens.

–M’sia – FC contains a chapter on fundamental liberties (Articles 6-13)

—d. Controls over discretionary powers

◦Institutional safeguards against abuse & misuse of powers by authorities

◦Checks & balances are put in place in order to ensure the government acts within their powers & not exceed.

◦The government should not itself be destructive of the values it was intended to promote

◦Effective judicial control of executive discretion is the litmus test of a rule of law society – judicial review

—e. Responsible government

◦Accountability or answerability of the government

◦An obligation to explain & justify decisions made or action taken

◦If individual rights/interests is affected, appropriate compensation should be given

◦Constitutional models & control mechanisms are introduced including constitutionalism, check & balance, federalism, judicial review, elections, statutory tribunals & SUHAKAM.

—f. Entrenchment of constitutional values

◦The constitution provides effective legal & political restraints upon the exercise of state power to amend or repeal laws dealing with constitutional safeguards.

g. Independent judiciary

◦According to de Smith, “constitutionalism is practised in a country where the government is genuinely accountable to an entity or organ distinct from itself… and where there are effective legal guarantees of civil liberties enforced by an independent judiciary…”

—h. Free and fair elections

◦Free & fair elections are regularly held in order to elect the government

◦However, free & fair elections does not guarantee that constitutionalism is being practiced.

◦Example: Adolf Hitler’s regime came to power through an election. Successive government in Israel have succeeded at the polls but genocidal policies against Palestinians in occupied territories.

•A preference for law & order

•Colin Munro wrote that rule of law has emerged out of constitutionalism.

•Whereas, Dicey defined rule of law as:

  a) the supremacy of regular laws over arbitrary power,

  b) formal legal equality before the law &

  c) the  constitution that is defined and enforced by regular courts.

Core Characteristics

a. Legality

—Requires that a society must be governed by a government of laws & not by a regime of arbitrary powers.

—Supremacy of laws.

—Government officials must show respect for the law & must observe their power.