Constitutionalism can be described as a plan or a blueprint before making a Constitution. It is the ideal of the Constitution. In Malaysia, we are practicing constitutional supremacy, which there is no authority above the Constitution. The two main key elements under constitutionalism is Rights Provisions (under Article 5 to 13 of the Federal Constitution) and Structural Provisions (separation of powers, representative system). There are a few branches under constitutionalism. Independence of judiciary, rule of law and separation of power is some of them and each of these branches have their own specific role.
Firstly, rule of law is also a part of constitutionalism. This is neither a rule nor a law, but it is a political morality doctrine. The rule of law must be differentiate from rule by law. Rule of law is whereby that there is nobody above the law. This means that everyone is equal before the laws.1 On the other hand, rule by law means someone above the law. Rule of law indicates the power of law and that all laws must be parallel to some set of Human Rights standards in order to protect our liberties. Thus, rule of law requires laws to respect certain basic unchallengeable rights. The World Justice Project2 defines the rule of law into four universal principles that consists of accountability, just laws, open government, accessible and impartial dispute resolution.
Next, separation of power is a system that separate the powers of executive, legislative and judicial powers of a government. Montesquieu, a French lawyer as well as a political philosopher, 3 mentioned that the branches of government should have distinct authority and that there should be a clear division of function between them.4 The main objective of separation of power is to avoid dictatorship. In Malaysia, it is acceptable to have overlaps of functions and powers between the three organs as long as there is a system of check and balance in place.
Finally, the judiciary is the central figure in any democratic country. Its main function is to exercise check and balance. This system is used in order prevent the abuse of power of the government. The judiciary must be independent to guarantee public confidence in the system and it must be autonomous. Other functions of judiciary is inclusive of settling disputes, punish offenders, try offences and interpret law passed by the legislative. The Chief Justice heads the Malaysian Judiciary5 and the Federal court is the apex or known as the highest court in Malaysia’s court hierarchy.
Thus, constitutionalism is a philosophical ideal behind the law to safeguard the interest of citizens that provide them with freedom of speech, freedom of religion, separation of powers as well as rule of law. It focuses more on specific rights on an individual as these fundamental liberties are important in a democratic country. However, it must be reasonable to impose limitation on rights although it is permitted. The government must obey the rules and administer according to law as well as be accountable to its own actions. Not only that, the constitutionalism is usually concerned under public law that recognises both of the freedom of an individual and the necessity of government. It denotes a constitution with powers and of restraints.
Therefore, in regards to the protecting our fundamental liberties, the constitution should be amended. The independence of judiciary, rule of law, separation of power are the key features in amending our constitution, as those are easier to be amend compared to the current electoral system. The electoral system cannot be amended easily just in a day as it had been practised in centuries by our country.
1 Access To Justice And Rule Of Law. (2018). Lawteacher.net. Retrieved January 18, 2018, from https://www.lawteacher.net/free-law-essays/constitutional-law/access-to-justice-and-rule-of-law-constitutional-law-essay.php
2 What is the Rule of Law?. (2018). World Justice Project. Retrieved January 18, 2018, from https://worldjusticeproject.org/about-us/overview/what-rule-law
3 Montesquieu and the Separation of Powers – Online Library of Liberty. (2018). Oll.libertyfund.org. Retrieved January 18, 2018, from http://oll.libertyfund.org/pages/montesquieu-and-the-separation-of-powers
4 Mizan. (2018). Separation of Power. Slideshare.net. Retrieved January 18, 2018, from https://www.slideshare.net/nelfiamiera/separation-of-power
5 The Malaysian Bar – Malaysian Judiciary. (2018). Malaysianbar.org.my. Retrieved January 18, 2018, from http://www.malaysianbar.org.my/judiciary.html