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LAW437 – Constitutional Law – Written & Unwritten Constitution

The difference between a written constitution and unwritten constitution is one of degree, not of kind [Apr 2007, Q3, Part A].

What is a “Constitution”?

Kicking off the discussion, one needs to define what a constitution is. It is the basic law of the land. Hans Kelson uses the term ‘grundnorm’ to denote the basic norm, order, and rule on which a legal system is based upon. A constitution is a collection, or aggregate, of fundamental principles or established precedents that outline the legal basis of the State. With that, although a State’s constitution can be a grundnorm within one legal system, the grundnorm may not necessarily be the constitution of the State.

Constitutions are classified into two forms: written and unwritten. In either case, one must distinguish these terms from the conventional antonym of “oral”.

What are Written Constitutions?

Written constitutions are basic laws, norms, and rules put together into one document. That single document is then recognised as the cornerstone and basis for the authority of institutions and the rights of individuals within the realm. Examples of these written constitutions are the Federal Constitution (Malaysia), the US Constitution, the Undang-Undang Dasar Negara Republik Indonesia 1945, the Constitution of the Kingdom of Thailand, as well as the Constitution of France (1958).

When a constitution is ‘written’ what sets it apart from normal laws is how constitutions are amended. The usual requirement imposed to amend a constitution involves the two-thirds support from the membership of each chamber of the national legislature. This two-thirds is known as a supermajority. Different jurisdictions may impose further requirements such as a nationwide constitutional referendum or having a large number of the constituent state legislatures ratifying the amendment.

Amending Malaysia’s Written Constitution

Malaysia’s position is outlined in these provisions in the Federal Constitution:-

Art. 159(3)Amendments requiring the support of two-thirds of the total membership in both Houses of Parliament when the Bill is brought before that House.
Art. 159(4)Amendments requiring the support of a simple majority of the members present – i.e. the exception to the general rule imposed by Art. 159(3).
Art. 159(5)Amendments requiring the support of two-thirds of the total membership in both Houses of Parliament when the Bill is brought before that House; and the consent of the Conference of Rulers
Art. 161EAmendments requiring the support of two-thirds of the total membership in both Houses of Parliament when the Bill is brought before that House; and The concurrence of the Yang di-Pertua Negeri of Sabah and Sarawak; orThe concurrence of the Yang di-Pertua Negeri of Sabah for matters affecting Sabah; orThe concurrence of the Yang di-Pertua Negeri of Sarawak for matters affecting Sarawak.

What are “Unwritten Constitutions”?

“Unwritten Constitutions” are not oral constitutions. States with unwritten constitution are states where the authorities of its institutions and rights of individuals are not codified into one document. A famous example is the United Kingdom. The only other two countries with an uncodified or unwritten constitution are New Zealand and Israel. However, there are other countries that consider itself having an uncodified constitution. They are Sweden, San Marino, China, Canada, as well as the Kingdom of Saudi Arabia.

The United Kingdom’s Position

Taking the example of the United Kingdom where its constitutional principles, though recognised by the Supreme Court, are not available in one document. Rather it is a compilation of Acts of Parliament, court cases, and conventions from time immemorial. That collection may include the Magna Carta 1215, the Petition of Right 1628, the Act of Union 1707, the Parliament Acts 1911 and 1949, and the Human Rights Act 1998 among others.

Criticisms against Both Written and Unwritten

In countries where its constitutions are uncodified, the ‘constitution’ may be amended through the regular legislative process or by edict of the head of state.

On paper, a written constitution creates certainty for the actors within the State – be it institutions or the population. Some Constitutions incorporate human rights provisions. Thus, the presumption of the protection of such rights exist.

Yet it was the Weimar Republic constitution of 1919 that gave rise to Nazi Germany leading towards the atrocities of World War II.

Opponents of the written constitution argue against the inflexibility and rigidity. For instance, the US Constitution has only been amended 27 times since 1789 despite Congress having sent 33 constitutional amendments to the states for ratification. Among the oldest amendment yet to be ratified is the 1789 Congressional Apportionment Amendment which would strictly regulate the size of congressional districts in the House of Representatives.

Closing

In conclusion, it is safe to say that all modern States have a constitution. It the literal understanding of Louis XIV’s famous line “L’état, c’est moi” codified or as complex as the Indian Constitution. Or it can be unwritten as seen in the UK and New Zealand. What Constitutions often do not incorporate or prescribe is the role of the different actors, especially the population, in the State’s nation-building journey.


LAW437: Constitutional Law I is a subject offered by Universiti Teknologi MARA (UiTM) as part of the Bachelor of Legal Studies (Hons.) – LW213 programme. From October 2020, Aldric Tinker Toyad is enrolled in the Bachelor of Legal Studies (Hons.) programme. This article is part of the learning experience and does not constitute legal advice, nor does it negate the requirement for further research and consultation with licenced practitioners. In addition to that, the opinions herein are Aldric’s own which do not represent clients, employers, or institutions associated or affiliated with him.

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