n Malaysia, we are upholding constitutional supremacy. This is backed by the virtue of Art 4(1) of Federal Constitution that the constitution is the supreme law of the land. A constitution is a body of legal and non-legal rules or sources concerning the government of a state. In other words, constitution is the fundamental or basic rules governing the affairs of the state.
The Federal Constitution of Malaysia and the USA Constitution is a written constitution. A written constitution is distinguished with a unwritten constitution by the fact that it is codified, written and embodied in a single set of document or a series of document containing the fundamental rules of the state, whereas a unwritten constitution does not mean that it does not have the fundamental rules of a state, but it is not embodied or codified in a document that expressly stated or gives the fundamental rules and rights of the people. An example of a country that has unwritten constitution is United Kingdom.
The constitution gives people their fundamental liberty and their rights as a citizen. The main question now is how does the constitution can uphold the rights of the people?
A written constitution is a form of constitution that guarantees and strictly adhered the rights of the people because it is rigid in nature. The word ‘rigid’ means that the constitution cannot be amended easily because it has to undergo special procedures in order to amend any provision in the constitution, making it more complex rather than passing any ordinary laws. This acts as a safeguard for the rights of the people. In contrast, an unwritten constitution does not require special procedure as the rights of the people is an ordinary law that can be passed by the Parliament/legislative by the usual manner of law-making process. An unwritten constitution is more flexible in this sense.
However, an unwritten constitution gives the people negative right. Negative right is the right of the people whether to do or not to do an act that is not expressly stated in an Act of Parliament. For example, if there is no Act of Parliament that gives them freedom of speech, that does not mean they do not have freedom of speech, they do have and it is up to the people to speak their minds openly and freely without the pressure or restriction from any public authority because the law does not states there is or there is no freedom of speech.
Since Malaysia have a written constitution such as the Federal Constitution, it is easier to compare with the USA constitution that is similar in nature with Malaysia constitution unlike United Kingdom, which only has Acts of Parliament.
The Federal Constitution provided the three main organs of the government that is the executive, legislation and judiciary under Art 39, Art 44 and Art 121 respectively. In the U.S. constitution, the powers of the main organs of the government are also divided into three branches under Art 1, Art 2 and Art 3. The similarities between this two constitution is it provided a clear structure of separation of power between the three organs of government to ensure the independency of each organs without interruptions from each other that may affect the neutrality and transparency of decision made by each of the organs themselves. Thus, it is known that the rights of the people is safe and not under scrutinize of executive that may have its own interest to amend the rights on his own accordance.
Fundamental liberties are given under Part II of Federal Constitution that is from Art 5 to Art 13. Meanwhile the first 10 Amendments in the U.S. constitution is also known as the Bills of Rights. The Bills of Rights were added into the constitution to ensure that certain rights of the people were recognized by the government that includes protecting the natural rights of liberty and property such as freedom of speech, free press, free assembly and free association.
Although by having a written constitution that expressly given rights to the people, it is also subject to certain limitations. Art 10 of Federal Constitution provides of the freedom of speech, assembly and association. Prima facie, it looks like the people are given a freedom for them to express their thoughts and political views that is good. However, one need to aware that the Sedition Act guards the limitations of freedom of speech in Malaysia. The Act makes it an offence to utter or publish words, which have a seditious tendency. The word ‘seditious’ in this context are wide and there could not be a clear-cut definition or scope that covers the area of ‘seditious’, thus making the people not free and restricted of their rights of freedom of speech in their own country.
In contrary, the Bills of Rights provided freedom of speech, of the press, assembly and right to petition under the First Amendment. The constitution guarantees the rights of the people and does not impose any limitations or restrictions on these rights. For example the newspaper and press are allowed to publish articles that even condemned or criticizing the government way of ruling the country publicly without worrying if the government would sue them. The media has the freedom to publish news and report to the people on the real situation that is going on in the country, which is highly unlikely to be permitted in Malaysia. In Malaysia, the newspaper and press are subject to the limitations of the Printing Presses and Publications Act 1984, that requires the keeper of a printing press to obtain a licence from the minister and making a deposit the amount which is fixed by him. The U.S. constitution clearly shows accountability of the government organs and ensures transparency of the government.
Art 13 of the Federal Constitution provided the rights to property. Art 13(1) stated that no person shall be deprived of property save in accordance with law; Art 13(2) stated that the government would provide for adequate compensation if the property were compulsory acquitted by the government. In this situation, it seems that the constitution gives the people rights to own property such as land but it is also subjected that the government may take the land from the ownership of the people and merely gives adequate compensation in return. This shows that the rights of the people have not been safeguarded securely. Even if the people did not breach or make offence of the law, it seems that they had suffer in the terms of their own property.
On the other hand, the Fourth Amendment of the U.S. Constitution provides the protection from unreasonable search and seizure that is ‘the rights of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’ Although the rights of people are also subject to certain limitations, it is not too wide and still ensures the rights of the people to be prioritized first. In America, the rights to privacy of the people are guaranteed, as compared to Malaysia that even the invasion of privacy behind close doors or in the own premise are breached.
Although the constitution gives the fundamental rights and liberties to the people and it is also subjected to certain limitations, it is still a good constitution because it is in a written document.