Tuesday, October 6, 2015

ASEAN’S MECHANISMS IN HANDLING CONFICT MANAGEMENT

ASEAN’S MECHANISMS IN HANDLING CONFICT MANAGEMENT Contents 1.0 INTRODUCTION 3 2.0 MECHANISMS FOR CONFLICT MANAGEMENT WITHIN THE ASEAN FRAMEWORK. 4 2.1 The ASEAN Declaration ( Bangkok Declaration 1)’ 4 2.2 The “Declaration of ASEAN Concord” (ASEAN Declaration I), 5 2.3 The “Treaty of Amity and Cooperation in Southeast Asia” (TAC), 7 2.4 The “Rules of Procedure of the High Council of the Treaty of Amity and Cooperation in Southeast Asia”, 8 2.5 The “Declaration of ASEAN Concord II (Bali Concord II)” (ASEAN Concord II), 9 2.6 The”ASEAN Security Community Plan of Action” (ASCPA), 11 2.7 “The Charter of the Association of Southeast Asian Nations” (ASEAN Charter), 12 2.8 The “ASEAN Political-Security Community Blueprint” (APSC Blueprint). 14 3.0 Conflict management in ASEAN 16 4.0 The ASEAN Framework and Disputes Involving Non ASEAN Countries 20 5.0 ASEAN and the South China Sea Situation 22 6.0 CONCLUSION 24 REFERERENCES 27 1.0 INTRODUCTION This assignment assesses conflict management approaches Association of Southeast Asia United Nations (ASEAN). ASEAN approach to conflict management and outlined the context in which it was developed and presented to identify and assess achievements made by ASEAN and the member states in the field of conflict management. The challenges that ASEAN and its member countries have faced in the field of conflict management are also discussed. Three main dimensions were studied: First, the core elements of the approach; second, the role played by the Union in terms of conflict management; and, third, the possible impact of the ASEAN approach and its role in inter-state disputes among them member. In addition, the possible relevance of ASEAN's approach to disputes involving also non-member states, eg South China Sea, explore The main aim of the assignment is to assess the conflict management approach of the Association of Southeast Asian Nations (ASEAN) by examination of its approach to conflict management. Three main dimensions are examined: the core elements of the approach; the role played by the Association in terms of conflict management; and the possible impact and the ASEAN’s role in inter-state disputes among its members. In addition, the possible relevance of the ASEAN approach on disputes involving also non-member states, e.g. in the South China Sea, is explored. The structure of my assignments is as follows. First, conflict management mechanisms and the non-interference principle within ASEAN’s framework are identified and outlined through an overview of key ASEAN documents. Second, implementation of conflict management and non-interference is examined and their possible relevance for intra-state disputes and conflicts is discussed. Third, ASEAN efforts in relation to the South China Sea are addressed. Fourth, in a concluding section the main findings are summarised and conclusions are drawn. 2.0 MECHANISMS FOR CONFLICT MANAGEMENT WITHIN THE ASEAN FRAMEWORK. The mechanisms for dispute management are drawn from eight key ASEAN documents: “The ASEAN Declaration (Bangkok Declaration)”, the “Declaration of ASEAN Concord” (ASEAN Declaration I), the “Treaty of Amity and Cooperation in Southeast Asia” (TAC), the “Rules of Procedure of the High Council of the Treaty of Amity and Cooperation in Southeast 3 Asia”, the “Declaration of ASEAN Concord II (Bali Concord II)” (ASEAN Concord II), the ”ASEAN Security Community Plan of Action” (ASCPA), “The Charter of the Association of Southeast Asian Nations” (ASEAN Charter), and the “ASEAN Political-Security Community Blueprint” (APSC Blueprint). These key documents are examined in chronological order based on the dates of adoption by ASEAN The ASEAN Declaration (Bangkok Declaration ) 2.1 The ASEAN Declaration ( Bangkok Declaration 1)’ The ASEAN Declaration, adopted on 8 August 1967, spells out the overall goals and aims of ASEAN and sets the stage for a process aiming at defining the way in which the Association should function and the mechanisms by which the goals and aims of the Association should be achieved. The references to conflict management in the Declaration are general in character as can be seen from the expressed desire to: “establish a firm foundation for common action to promote regional cooperation in South-East Asia in the spirit of equality and partnership and thereby contribute towards peace, progress and prosperity in the region;” Also the wording in the paragraph dealing specifically with the promotion of “regional peace” is general rather than specific. The importance of non-interference is explicit as outlined in the Preamble of the Declaration: “CONSIDERING that the countries of South East Asia share a primary responsibility for strengthening the economic and social stability of the region and ensuring their peace full and progressive national development, and that they are determined to ensure their stability and security from external interference in any form or manifestation in order to preserve their national identities in accordance with the ideals and aspirations of their peoples;” The importance of the Charter of the United Nations in the context of promoting regional peace and the commitment of the member states of ASEAN to the Charter is also explicit as displayed in the following: “To promote regional peace and stability through abiding respect for justice and the rule of law in relationship among countries of the region and adherence to the principles of the United Nations Charter;” 2.2 The “Declaration of ASEAN Concord” (ASEAN Declaration I), The ASEAN Declaration, adopted on 8 August 1967, spells out the overall goals and aims of ASEAN and sets the stage for a process aiming at defining the way in which the Association should function and the mechanisms by which the goals and aims of the Association should be achieved. The references to conflict management in the Declaration are general in character as can be seen from the expressed desire to: “establish a firm foundation for common action to promote regional cooperation in South-East Asia in the spirit of equality and partnership and thereby contribute towards peace, progress and prosperity in the region;” Also the wording in the paragraph dealing specifically with the promotion of “regional peace” is general rather than specific. The importance of non-interference is explicit as outlined in the Preamble of the Declaration: “CONSIDERING that the countries of SouthEast Asia share a primary responsibility for strengthening the economic and social stability of the region and ensuring their peacefull and progressive national development, and that they are determined to ensure their stability and security from external interference in any form or manifestation in order to preserve their national identities in accordance with the ideals and aspirations of their peoples;” The importance of the Charter of the United Nations in the context of promoting regional peace and the commitment of the member states of ASEAN to the Charter is also explicit as displayed in the following: “To promote regional peace and stability through abiding respect for justice and the rule of law in relationship among countries of the region and adherence to the principles of the United Nations Charter;” The ASEAN Concord I The evolution that followed during the so-called “formative years” ; i.e. 1967 to 1976, led to the signing of the ASEAN Concord I on 24 February 1976, in connection with the First Summit Meeting of ASEAN held in Bali. The ASEAN Concord I relates to the member states of ASEAN. It contains both general principles relating to the overall goals of the Association and principles relating to the specific goal of managing disputes and expanding co-operation among the member states. One of the stated overall objectives is the ambition to establish a “Zone of Peace, Freedom and Neutrality” (ZOPFAN) in Southeast Asia. Emphasis is also put on the respect for the principles of “self-determination, sovereign equality and non-interference in the internal affairs of nations”. 2.3 The “Treaty of Amity and Cooperation in Southeast Asia” (TAC), The TAC was adopted on 24 February 1976 in Bali. It provides specific guidelines in the field of conflict management particularly so in relation to the peaceful settlement of disputes. According to Article 18, the TAC “shall be open for accession by other States in Southeast Asia” in addition to the five founding members of ASEAN – Indonesia, Malaysia, the Philippines, Singapore, and Thailand. In Chapter I, “Purpose and Principles”, Article 2 outlines the fundamental principles that should guide the relations between the signatories to the Treaty: “a. Mutual respect for the independence, sovereignty, equality, territorial integrity and national identity of all nations; b. The right of every State to lead its national existence free from external interference, subversion of coercion; c. Non-interference in the internal affairs of one another; d. Settlement of differences or disputes by peaceful means; e. Renunciation of the threat or use of force; f. Effective co-operation among themselves.” These principles include three main factors for managing inter-state relations: noninterference in the internal affairs of other countries, peaceful settlement of disputes, and overall co-operation. In Chapter III, ‘Co-operation’, the linkages between co-operation, peaceful relations and non-interference are displayed. Article 12 states that the signatories: “in their efforts to achieve regional prosperity and security, shall endeavour to cooperate in all fields for the promotion of regional resilience, based on the principles of self-confidence, selfreliance, mutual respect, co-operation and solidarity which will constitute the foundation for a strong and viable community of nations in Southeast Asia.” In Chapter IV, “Pacific Settlement of Disputes” , Article 13 outlines the way in which the signatories should behave in situations in which there is a risk that disputes may arise or have arisen. The Article stipulates that the signatories: “shall have the determination and good faith to prevent disputes from arising. In case disputes on matters directly affecting them shall refrain from the threat or use of force and shall at all times settle such disputes among themselves through friendly negotiations.” Article 14 is devoted to the creation and envisaged role of a High Council. The Council shall be made up of a representative at the ministerial-level from each of the signatories and its role should be to take “cognizance” of existing disputes or situation, which could potentially threaten regional “peace and harmony”. The High Council is envisaged as “a continuing body” which indicates that it should have been established in 1976. Article 15 stipulates the mediating role of the Council. Such a role can be assumed in the event that no solution to a dispute is reached through “direct” negotiation between the parties to the dispute. As mediator, the Council can recommend to the parties to a dispute appropriate means of settlement; i.e. good offices, mediation, inquiry, or conciliation. It can also “constitute itself into a committee” of mediation, inquiry or conciliation. Article 16 displays some limitations to the mediating functions of the Council by stating that the provisions of Articles 14 and 15 shall apply to a dispute only if the parties to the dispute agree to their “application”. Article 16 states that signatories who are not parties to such a dispute can offer assistance to settle it and the parties to the dispute should be “well disposed towards such offers”. 2.4 The “Rules of Procedure of the High Council of the Treaty of Amity and Cooperation in Southeast Asia”, On 23 July 2001 in connection with the 34th ASEAN Ministerial Meeting (AMM) held in Hanoi, the member states of ASEAN adopted the “Rules of Procedure of the High Council of the Treaty of Amity and Cooperation in Southeast Asia”. The rules of procedure consist of ten “Parts” encompassing 25 “Rules”. The following outlines the most relevant provisions with a focus on the dispute settlement procedure. In Part I – “Purpose”, Rule 1, it is stated that in the “event of” a dispute between any provision of the rules of procedure and a provision of the TAC the latter should prevail. In Part III – “Composition”, Rule 3, Paragraph a, it is stated that the High Council shall comprise one representative at ministerial level from each of the “High Contracting Parties” that are Southeast Asia countries, i.e. at the time of adoption the ten member states of ASEAN. According to Rule 5 there shall be a Chairperson of the High Council. The Chairperson shall be the representative of the member-state that holds the Chair of the Standing Committee of ASEAN, or “such other” representative of a member-state of ASEAN “as may be decided by the High Council in accordance with these rules”. In Part IV – “Initiation of Dispute Settlement Procedure”, Rule 6, Paragraph 1, it is stipulated that the High Council “may take cognisance over a dispute or a situation provided for in Articles 14 to 16 of the Treaty”, i.e. the TAC. In Paragraph 2 it is stated that the “dispute settlement procedure” of the Council “shall be invoked only by a High Contracting Party which is directly involved in the dispute in question”. According to Rule 7, Paragraph 1, a High Contracting Party seeking to invoke the dispute settlement procedures must do so by written communication through diplomatic channels to the Chairperson of the Council and to the other High Contracting Parties. Rule 8 stipulates that once such written communication 7 has reached the Chairperson, the latter shall seek written confirmation from all other parties to the dispute that they “agree on the application of the High Council’s procedure as provided for in Article 16 of the Treaty”. Of crucial importance in this context is Rule 9 in which it is stipulated that: “Unless written confirmation has been received from all parties to the disputes in accordance with Rule 8, the High Council may not proceed further on the matter.” If the precondition set forward in Rule 9 is met then the High Council can proceed with the implementation of the dispute settlement procedure. If this is successful and the Council is to make a decision then Part VII – “Decision-making”, Rule 19, stipulates that the Council has to take all its decisions by consensus at “duly” convened meetings. 2.5 The “Declaration of ASEAN Concord II (Bali Concord II)” (ASEAN Concord II), The ASEAN Concord II, adopted on 7 October 2003 in connection with the 9th ASEAN Summit displays the continuity in the development of collaboration within ASEAN. In the preamble the member states are: “Reaffirming the fundamental importance of adhering to the principle of non-interference and consensus in ASEAN Cooperation”. The pre-eminence of the TAC is also in evidence as displayed by the fact that the member states are: “Reiterating that the Treaty of Amity and Cooperation in Southeast Asia (TAC) is an effective code of conduct for relations among governments and peoples”. This is further emphasised in the part of declarations. Declaration 4 stresses the commitment of the ASEAN member states to “resolve to settle long-standing disputes through peaceful means”. Declaration 5 states that TAC is “the key code of conduct governing relations between states and a diplomatic instrument for the promotion of peace and stability in the region;”. To achieve a “dynamic, cohesive, resilient and integrated ASEAN community”, The ASEAN Concord II states that the Association will strive to create an “ASEAN Security Community” (ASC), an “ASEAN Economic Community” (AEC), and an “ASEAN SocioCultural Community” (ASSC). The ASC is the most relevant to conflict management. Broadly speaking all twelve points of the ASC are relevant, but this paper only highlights the most relevant. Point 3 relates 8 to the fact that ASEAN shall continue to promote regional solidarity and cooperation and in this context it is stated that: “Member countries shall exercise their rights to lead their national existence free from outside interference in the internal affairs.” Point 4 also relates to this dimension but is more general and it states that: “The ASEAN Security Community shall abide by the UN Charter and other principles of international law and uphold ASEAN’s principles of non-interference, consensus based decisionmaking, national and regional resilience, respect for national sovereignty, the renunciation of the threat or use of force, and peaceful settlement of differences and disputes.” Thus, both Points confirm continued relevance and importance of the principle of noninterference in the ASEAN framework for regional collaboration as well as continued commitment to the prohibition of the threat or use of force. In terms of conflict management it can be noted that in Point 7 is devoted exclusively to the High Council and it is stated that: “The High Council of the TAC shall be the important component in ASEAN Security Community since it reflects ASEAN’s commitment to resolve all differences, disputes and conflicts peacefully.” 2.6 The”ASEAN Security Community Plan of Action” (ASCPA), The process aiming at establishing the ASC was reinforced at the 10th ASEAN Summit held in Vientiane in late November 2004 when ASEAN adopted the ASCPA. The ASCPA outlines that the ASC should be based on “shared norms and rules of good conduct in inter-state relations; effective conflict prevention and resolution mechanisms; and post-conflict peace building activities.” The ASCPA also stresses that the ASC process shall be “progressive” and guided by: “well-established principles of non-interference, consensus based decision-making, national and regional resilience, respect for the national sovereignty, the renunciation of the threat or the use of 9 force, and peaceful settlement of differences and disputes which has served as the foundation of ASEAN cooperation.” Thus, the ASCPA clearly displays a high degree of continuity and adherence to established principles for inter-state collaboration in ASEAN. It also states that ASEAN shall not only strengthen existing “initiatives” but also launch new ones and set “appropriate implementation frameworks”. The ASCPA includes seven sections; “I. Political Development”, “II. Shaping and Sharing of Norms”, “III. Conflict Prevention”, “IV. Conflict Resolution”, “V. Post-conflict Peace Building”, “VI. Implementing Mechanisms”, and “VII. Areas of Activities”. In the section on shaping norms it is stated that the aim is to achieve a standard of “common adherence to norms of good conduct among the members of the ASEAN Community”. In any norm setting activity the following principles must be adhered to: 1. Non-alignment, 2. Fostering of peace-oriented attitudes of ASEAN Member Countries; 3. Conflict resolution through non-violent means; 4. Renunciation of nuclear weapons and other weapons of mass destruction and avoidance of arms race in Southeast Asia; and 5. Renunciation of the threat or the use of force.” The ASCPA explicitly emphasises such core principles as the renunciation of the threat or the use of force, peaceful settlement of disputes, and the principle of non-interference 2.7 “The Charter of the Association of Southeast Asian Nations” (ASEAN Charter), The ASEAN Charter – adopted on 20 November 2007 in Singapore – reaffirms a number of fundamental principles governing inter-state relations among its member states. In paragraph 7 of the Preamble the following is stated: “Respecting the fundamental importance of amity 10 and cooperation, and the principles of sovereignty, equality, territorial integrity, noninterference, consensus and unity in diversity;” The importance of peace is also evident as stated in paragraph 6 of the Preamble and also explicitly outlined in Article 1 – “Purposes” – of Chapter I – “Purposes and Principles” – which states that the first purpose of ASEAN is: “To maintain and enhance peace, security and stability and further strengthened peace-oriented values in the region;” In Article 2 – “Principles” – both non-interference and peaceful dispute settlement are highlighted as displayed by the following principles that ASEAN member states should “act in accordance with”: (a) respect for the independence, sovereignty, equality, territorial integrity and national identity of all ASEAN Member States; (b) shared commitment and collective responsibility in enhancing regional peace, security and prosperity; (c) renunciation of aggression and the threat or use of force or other actions in any manner inconsistent with international law; (d) reliance on peaceful settlement of dispute; (e) non-interference in the internal affairs of ASEAN member-states; (f) respect for the right of every Member State to lead its national existence free from external interference, subversion and coercion; (g) abstention from participation in any policy or activity, including the use of its territory, pursued by any ASEAN Member State or non-ASEAN State or any non- State actor, which threatens the sovereignty, territorial integrity or political and economic stability of ASEAN Member States;” The non-interference dimension is extensive and explicit in these principles. The strict adherence to the provisions of the Charter of the United Nations relating to the prohibition of the “threat or use of force” in inter-state relations is also notable. In the context of settlement of disputes Chapter VIII is of direct relevance as it deals with “Settlement of Disputes”, relating to “specific ASEAN instruments” and with other kind of disputes. The “General Principles” in Article 22 stresses that the ASEAN member states “shall endeavour to resolve peacefully all disputes in a timely manner”.37 The role of ASEAN is to “maintain and establish dispute settlement mechanisms in all fields of ASEAN Cooperation”. Article 24 – “Dispute Settlement Mechanisms in Specific Instruments” – paragraph 2 states that: “Disputes which do not concern the interpretation or application of any ASEAN instrument shall be resolved peacefully in accordance with the Treaty of Amity and Cooperation in Southeast Asia and its rules of procedure.” In Article 24 the issue of “unresolved disputes” is addressed and it is stated that if a dispute is not “resolved” after the application of the “preceding provisions of this Chapter” then it “shall be referred to the ASEAN Summit, for its decision”. In relation to the ASC it is stated in Preamble paragraph 11 of the ASEAN Charter that the Association is: “Committed to intensifying community building through enhanced regional cooperation and integration, in particular by establishing the ASEAN Community comprising the ASEAN Security Community,…”. Notably the ASEAN Charter refers to the “ASEAN Political-Security Community Council” in Paragraph 1, Article 9 “ASEAN Community Councils”, Chapter IV “Organs” and not to the ASC. 2.8 The “ASEAN Political-Security Community Blueprint” (APSC Blueprint). At the 14th ASEAN Summit held in Cha-am on 28 February to 1 March 2009 the APSC Blueprint was adopted and it was made explicit that the APSC is one of three pillars of the ASEAN Community. In accordance with the APSC Blueprint,the APSC Blueprint builds on 12 the ASEAN Security Community Plan of Action, a principled document, laying out the activities needed to realise the objectives of the APSC. In Paragraph 8 it is explicitly stated that the APSC Blueprint “upholds existing ASEAN political instruments” such as ZOPFAN, the TAC, and the “Treaty of the Southeast Asia Nuclear Weapon-Free Zone” (SEANWFZ) In Paragraph 10 it is stated that the APSC “envisages” the following three key characteristics: a) A rules-based Community of shared values and norms; b) A Cohesive, Peaceful, Stable, and Resilient Region with shared responsibility for comprehensive security; and c) A Dynamic and Outward-looking Region in an increasingly integrated and interdependent world.” In the section “A.2. Shaping and Sharing Norms”, Paragraph 16 it is outlined that ASEAN promotes “regional norms of good conduct and solidarity” in accordance with the ASEAN Charter. ASEAN also upholds the TAC and the SEANWFZ as well a as the “Declaration on the Conduct of the parties in the South China Sea” relating to the South China Sea. Section “A.2.2” relates to the strengthening of cooperation under the TAC. Section “A.2.3” is devoted to ensuring the full implementation of the DOC and of the final adoption of a regional Code of Conduct in the South China Sea (COC)”. Section “A.2.4” is devoted to measures to ensure the implementation of the SEANWFZ. Section “B.2” is devoted to “Conflict resolution and pacific settlement of disputes”. In Paragraph 21 it is stated that the TAC “gives provision for pacific settlement of disputes at all time through friendly negotiations and for refraining from the threat or use of force to settle disputes.” In Paragraph 22 it is noted that ASEAN may also establish “appropriate” dispute settlement mechanism under the ASEAN Charter. The latter is further developed in section “B.2.1” which is devoted to how to build on existing modes of pacific settlement of disputes and also possibly how to create additional mechanisms if needed. The following actions are listed: i. Study and analyse existing dispute settlement modes and/or additional mechanisms with a view to enhancing regional mechanisms for the pacific settlement of disputes; ii. Develop ASEAN modalities for good offices, conciliation and mediation; iii Establish appropriate dispute settlement mechanisms, including arbitration as provided for by the ASEAN Charter.” Although the non-interference principle is not specifically mentioned by name in the APSC Blueprint the essence of the principle is affirmed as displayed by the title of Section “B.1.4”: “Strengthen efforts in maintaining respect for territorial integrity, sovereignty and unity of ASEAN Member States as stipulated in the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations” The emphasis on “respect for territorial integrity, sovereignty and unity” clearly displays the continued importance of the principle of non-interference within the ASEAN framework. The APSC Blueprint puts more emphasis on various aspects of peaceful settlements of disputes and promoting collaboration and friendly relations than on non-interference per se. Although principles such as respect for territorial integrity and sovereignty are explicitly stated in the APSC Blueprint. 3.0 Conflict management in ASEAN In the context of this paper it is important to examine the conflict management dimension in practice and how it relates to the ASEAN member states. The examination will deal with developments in an expanded ASEAN, i.e. developments since the mid-1990s – Vietnam joined in 1995, Laos and Myanmar joined in 1997, while Cambodia joined in 1999. If the achievement in conflict management among the ASEAN member states is examined from the perspective of the prevention of militarised disputes the track record of ASEAN is impressive since no dispute has led to a militarised inter-state dispute between the 14 original member states since 1967. In fact earlier research suggests a high degree of success in managing disputes between the original member states of ASEAN. The expansion of ASEAN membership in the 1990s brought additional disputes into the Association. Among the disputes involving the new member states, some have been settled while others remain unsettled. For example the level of tension relating to the unsettled border disputes varies considerably. This can be exemplified by the high level of tension between Myanmar and Thailand in the late 1990s caused by military actions along the border involving troops from Myanmar and/or groups allied to the central authorities operating against opposition groups based in the border area or in camps in Thailand. Another more recent example is between Cambodia and Thailand between 2008 and 2013 when differences in and relating to areas in the vicinity of the Preah Vihear temple has led to both periods of deep political tension and to sporadic clashes between Thai and Cambodian troops along the border. In terms of conflict management strategy the member states of ASEAN have displayed a preference for bilateral talks and dialogue on the disputes with other members of the Association. However, in the 1990s Indonesia and Malaysia agreed to refer the sovereignty disputes over Pulau Sipadan and Pulau Ligitan to the International Court of Justice (ICJ) and Malaysia and Singapore did likewise with regard to the sovereignty dispute over Pedra Branca/Pulau Batu Puteh. This displays a willingness among some ASEAN members to seek international jurisprudence when bilateral efforts are not sufficient to bring about a solution to the disputes. A key dimension is whether or not bilateral conflict settlement among the ASEAN member states is a sign of weakness of the regional ASEAN framework for conflict settlement or is it an integrated part of it? It can be argued that if the goals of ASEAN are promoted through bilateral conflict settlement that is in line with the regional framework, then it is not a sign of a weakness. An example is the progress in Vietnam’s border disputes settlement since the early 1990s. This has been achieved primarily through bilateral approaches, but in line with the ASEAN principles and mechanisms for conflict settlement. This line of argumentation draws on the logic that bilateral approaches are not in 15 contradiction with the regional approach as long as the bilateral approaches adhere to the same basic principles that the regional approach is based upon. The bilateral efforts to manage and settle disputes can be facilitated and/or supported by the mechanisms for conflict management created by ASEAN and by enhancing the effectiveness of these mechanisms. This relates to ASEAN’s role as facilitator rather than as an active third-party mediator in the disputes. However, it does not preclude that the role of ASEAN itself can be enhanced as long as it is within the limits set by the ASEAN framework for conflict management. There is also a need for a political consensus among the parties to the disputes that ASEAN should play such a role. What role that the ASEAN framework for conflict management can play in the context of the disputes among the member states of the Association? The core dimension is how to enhance the framework’s relevance in meeting the challenge of existing and potential future disputes. The first step would be to establish the High Council. This has proven to be a difficult task as it took 25 years after the adoption of the TAC before ASEAN managed to adopt, in July 2001, the Rules of Procedure of the High Council a neccessary development in order to possibly establish the High Council in the future. The importance of the High Council has been reaffirmed in the ASEAN Concord II of 2003 and in the ASCPA of 2004. The ASCPA calls on the ASEAN member states to “endeavour to use existing regional dispute mechanisms and processes” and in its “Annex” the member states are urged to “use the High Council of the TAC as a preferred option”. The long period needed in order to reach an agreement on the Rules of Procedure indicates that the informal and formal political co-operation among the ASEAN members could be enhanced in order to remove the lingering feelings of suspicion about the intentions of other members of the Association. Another factor that has to be taken into consideration is that a High Council created on the basis of the provisions of the TAC could have considerable power through decisions-making relating to disputes. Making the High Council a decision making body would increase the degree of institutionalisation within ASEAN and this would be a step away from the more informal approach preferred within the Association. Also of relevance are concerns about the possible multilateralisation of bilateral disputes. This would 16 not be an attractive scenario for member states that are involved in disputes with other members of ASEAN. Or for states which would fear that the opposing party to a dispute has a higher degree of diplomatic influence or leverage within the Association. Reverting back to the adoption of the Rules of Procedure it can be said that the agreement on such rules indicate that the ASEAN member states are committed to the establishment of the Council and to strengthen the regional conflict management mechanisms. Furthermore, by agreeing on the Rules of Procedure the member states display an enhanced level of trust towards each other or at least a diminishing level of mistrust. It can be argued that through the adoption of these Rules of Procedure ASEAN has brought about conducive conditions for the establishment and activation of the High Council, a Council to which the member states could turn for assistance in resolving border disputes if negotiations between the parties to the disputes fail. Such a High Council, if established, may be attractive as an alternative to the ICJ. This should not be understood as an argument implying that parties to a dispute should not bring such disputes to the ICJ no matter the circumstances. On the contrary, the ICJ can still be used as an alternative if the bilateral and regional conflict management approaches and efforts fail to lead to a settlement of a dispute. The adoption of the Rules of Procedure implies that the member states of ASEAN have established regional mechanisms that can be utilised for managing disputes between the member states if bilateral and/or multilateral efforts by the parties to a dispute are not adequate or sufficient to manage and/or resolve the dispute. Whether or not the High Council will be activated and be allowed to assume such a role will depend on the willingness and readiness of the member states of ASEAN to bring disputed issues to such a regional body. The Rules of Procedure ensure that the Council cannot be used against any of the member states. The later was most probably a necessary condition in order to secure the adoption of the rules and it is likely to be a key factor in enabling a future activation of the Council itself. Only after it has been established will it be possible assess how effectively and how often the High Council will be used by ASEAN member states. The fact that the High Council has yet to be activated over a decade after the Rules of Procedures were adopted in 2001 indicates that not all member states of ASEAN are ready to 17 bring disputes with other members to such a High Council. This seems to imply that there is still lingering mistrust among some of the member states of ASEAN and that enhanced efforts are needed to addressed such lingering mistrust. It is necessary to clarify that ASEAN is not intended to formally act as a third-party mediator in the disputes involving its member states unless it is ascribed to do so or asked to do so by the member states. Instead the Association is intended to serve as a vehicle to promote better relations among its member states. This is done by creating conducive conditions for increased interaction through the overall co-operation carried out under the ASEAN-umbrella. Another role that ASEAN can play is as a norm creator. ASEAN can do so through the formulation and adoption of mechanisms, which can be utilised by the member states to manage their disputes. ASEAN can also establish principles for how its member states should behave towards each other and this has been done through the ASEAN Concord I and the TAC of 1976 and the ASEAN Concord II of 2003. In this context the strong emphasis put on dispute settlement in the ASCPA of 2004, in the ASEAN Charter of 2007 as well as in the APSC Blueprint of 2009 is of relevance. This implies that in order to achieve peace and stability in Southeast Asia the member states of ASEAN must act in such a way as to peacefully manage the existing and potential inter-state disputes among them. Consequently, failure to do so can be attributed to the member states involved in the disputes and not to the Association as such. Furthermore, ASEAN can urge its member states to seek peaceful solutions to such disputes. However, ASEAN cannot force them nor directly intervene to try and halt a dispute unless the parties to the dispute ask ASEAN to intervene in such a manner. 4.0 The ASEAN Framework and Disputes Involving Non ASEAN Countries Three protocols amending the TAC are of importance in context of disputes and relations with non-Southeast Asian countries. The first protocol was adopted on 15 December 1987 in connection with the Third Summit Meeting of ASEAN in Manila. The second protocol was 18 adopted on 25 July 1998 in connection with the 31st AMM in Manila. The third protocol was signed on 23 July 2010 in connection with the 43rd AMM in Hanoi. In Article 1 of the first protocol the amendment deals with the provisions relating to which states can accede to the TAC and stipulates: “States outside Southeast Asia may also accede to this Treaty by the consent of all States in Southeast Asia which are signatories to this Treaty and Brunei Darussalam.”71 Article 2 contains an amendment to Article 14 in the TAC and relates to the formation of a High Council with representatives from all the signatories. The amendment is as follows: “However, this article shall apply to any of the States outside Southeast Asia which have acceded to the Treaty only in cases where that state is directly involved in the dispute to be settled through the regional processes.” In the second protocol the amendment to the TAC relates to Article 18, Paragraph 3 of the Treaty and it is amended as follows: “States outside Southeast Asia may also accede to the Treaty with the consent of all States in Southeast Asia, namely, Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao People’s Democratic Republic, Malaysia, the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand and the Socialist Republic of Vietnam.” In the third protocol the first amendment to the TAC also relates to Article 18, Paragraph 3 of the Treaty and is amended as follows: “This Treaty shall be open for accession by States outside Southeast Asia and regional organisations whose members are only sovereign States subject to the consent of all the States in Southeast Asia, namely, Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao People’s Democratic Republic, Malaysia, the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand and the Socialist Republic of Viet Nam.” The second amendment in the third protocol relates to Article 14, Paragraph 2 of the TAC and reads as follows: “However, this article shall apply to any of the High Contracting Parties outside Southeast Asia only in cases where that High Contracting Party is directly involved in the dispute to be settled through the regional processes.” These three protocols and the amendments in them imply that the TAC is open for accession also by non-Southeast Asian states, provided that the Southeast Asian signatories give their consent. The non-Southeast Asian states can also be represented in the High Council if they are directly involved in disputes to be settled through the “regional processes”. By adopting the amendments the ASEAN-members have agreed to expand the dispute management process and mechanisms of the TAC to countries outside the Southeast Asian region and to disputes involving not only Southeast Asian states but also other countries. The Rules of Procedure of the High Council are also relevant in this context. First, in Part III, Rule 3, Paragraph a, it is stated that the High Council shall comprise the ten member states of ASEAN. In Paragraph b, it is stated that the Council shall also comprise one representative at ministerial level from “each” of the High Contracting Parties that are not from Southeast Asia and “are directly involved in the dispute which the High Council takes cognisance of”. Furthermore, in Part IV – “Initiation of Dispute Settlement Procedure”, Rule 6, Paragraph 1, it is stated that the “dispute settlement procedure” of the Council “shall be invoked only by a High Contracting Party which is directly involved in the dispute in question”. Also in this context it is relevant to note the de facto “veto power” that is implied in Rule 9. All references made in Part IV of the rules of procedure are to High Contracting Parties as well as to the non-Southeast Asian countries which may become High Contraction Parties. The relevance of the adoption of the rules of procedure of the High Council in ASEAN’s external relations is more limited than att he intra-ASEAN level only to disputes that directly involve external powers. One possible area of relevance would be in the dispute situations in the South China sea involving one or more member states of ASEAN and China, e.g. the dispute situations in and around the Spratly archipelago which involves China, Taiwan, Brunei Darussalam, Malaysia, the Philippines, and, Vietnam. A key and necessary 20 development was China’s accession to the TAC on 8 October 2003. 77 This implies that China can be a member of the High Council if a dispute between China and an ASEAN member state is eventually brought to the Council. Thus, the High Council can potentially be used in relation to disputes in the South China Sea involving not only members of ASEAN but also those involving ASEAN members and China. 5.0 ASEAN and the South China Sea Situation ASEAN pursues a proactive role in response to developments in the South China Sea. This is reflected in its statements relating to developments in the area, through its dialogue with China, and through the ASEAN Regional Forum (ARF) which held its first working meeting in 1994. Among the ASEAN statements the most important one is the “ASEAN Declaration on the South China Sea” issued in 1992. The Declaration’s main feature is its emphasis on the necessity to settle disputes by peaceful means. In addition all parties concerned are urged to exercise restraint in order to create a positive climate for the future resolution of disputes in the area. The ASEAN-China dialogue relates to the overall relationship between the Association and China in political and economic fields. Gradually the two sides agreed to include developments in the South China Sea into the agenda of their dialogue process. Interestingly enough the ASEAN-China dialogue brings together the ASEAN member states with claims in the South China Sea alongside China. As the driving force behind and within the ARF, ASEAN has sought to put the South China Sea developments on the ARF agenda. This has eventually succeeded after China withdrew its earlier opposition to discussions on the South China Sea in the multilateral setting of the ARF. The ASEAN-China dialogue relating to the South China Sea was initially focused on the search for mutually agreeable mechanisms to manage the situation in the area. The two sides set up the “ASEAN-China Working Group on the Regional Code of Conduct on the South China Sea” in 2000. The issue was also addressed at various levels of the ASEAN- 21 China Dialogue. The difficulties in reaching an agreement on the content and scope of such mechanisms focused on how to reconcile an ASEAN proposal and a Chinese proposal. Within ASEAN the process of agreeing to a common proposal was a difficult one. There were indications of differences among ASEAN member states relating to the “scope of application” of such mechanisms, i.e. which areas of the South China Sea ought to be encompassed. Eventually the ASEAN members managed to reconcile their differences and so did ASEAN and China. This paved the way for the signing of the “Declaration on the Conduct of Parties in the South China Sea” (DOC) by the ASEAN member states and China on 4 November 2002. The intra-ASEAN dimension displays that in order to formulate an ASEAN policy towards the South China Sea the views and interests of the member states with claims in the South China Sea have to be reconciled, i.e. not only the four claimants to all or parts of the Spratly archipelago – Brunei Darussalam, Malaysia, the Philippines, and Vietnam – but also Indonesia who claims maritime zones in the South China Sea. In addition views and interest of the five member states with no claims in the South China Sea have to be taken into consideration. Another relevant dimension of the intra-ASEAN process relates to how the member states perceive China and its policies and actions. This was of particular relevance in the 1990s when tensions relating to the South China Sea between Vietnam and China and between the Philippines and China, respectively, caused considerable concern in the region. At the same time Cambodia and Thailand had good and close relations and no border disputes with China. Different perceptions of and relations with China within the Association complicate the process of formulating a clear-cut ASEAN policy towards China on the South China Sea, among other things. Recent developments have again displayed how bilateral tension with China relating to the South China Sea situation – in particular between the Philippines and China – can lead to public differences between member states of ASEAN, e.g. Cambodia and the Philippines in 2012, which had ramifications on ASEAN cohesion. The ASEAN-China dialogue relating to the South China Sea situation does provide a boost for confidence building measures and avenues for the parties to the disputes to talk. The DOC is the most important agreement reached thus far. The aim is to defuse tension and promote the peaceful management of the situation. Furthermore, the respect of the status quo is promoted. The agreement between the member states of ASEAN and China in July 2011 on the “Guidelines for the Implementation of the DOC” is a positive development. The on-going discussions within ASEAN as well as between ASEAN and China relating to a possible Code of Conduct (COC) for the South China Sea are further positive steps. A major challenge for ASEAN is how to respond to the periods of tension between its member states and China. In such situations ASEAN solidarity calls for other member states to support the so-called “front-line state”, but at the same time they do not want to jeopardise their overall relationships with China, which is of great importance both economically and geo-strategically. This dilemma also affects the responses and policies of the Association as a whole. 6.0 CONCLUSION As displayed in the overview of the key ASEAN documents non-interference is a cornerstone within the ASEAN framework for regional collaboration. Furthermore, the peaceful settlement of inter-states disputes and the prohibition of the threat or use of force are also fundamental aspects of the ASEAN framework As observed above, in order to properly understand and assess what ASEAN does and could possibly do in terms of conflict management it is necessary to clarify that ASEAN is not intended to formally act as a third-party mediator in the disputes involving its member states unless it is ascribed to do so or asked to do so by the member states. Instead the Association is intended to serve as a vehicle to promote better relations among its member states. This is done by creating conducive conditions for increased interaction through the overall co-operation carried out under the ASEAN-umbrella. Another role that ASEAN can play is through the formulation and adoption of mechanisms, which can be utilised by the member states to manage their disputes. ASEAN can also establish principles for how its 23 member states should behave towards each other and this has been done through the ASEAN Concord I and the TAC of 1976, through the ASEAN Concord II of 2003, through the ASCPA of 2004, and through the ASEAN Charter adopted in 2007. The envisaged APSC will further reinforce the existing principles and mechanisms as well as strive to develop new ones. It has been observed that in order to achieve peace and stability in Southeast Asia the member states of ASEAN must act in such a way as to peacefully manage the existing and potential inter-state disputes among them. Consequently, failure to manage inter-state disputes among the member states of ASEAN can be attributed to the states involved in the disputes and not to the Association as such. Furthermore, ASEAN can urge its member states to seek peaceful solutions to such disputes, but it cannot force them nor directly intervene to try and halt a dispute unless the parties to the dispute ask ASEAN to intervene in such a manner. The relevance of the regional mechanisms for conflict management as developed and formulated through collaboration within ASEAN would be considerably enhanced if the member states of ASEAN would more actively seek to utilise them when managing and settling disputes. The fact that the High Council has yet to be activated and that no dispute has been brought to it indicates that regional mechanisms for conflict settlement are after 45 years not yet the preferred option when the member states fail to reach a bilateral agreement in a dispute situation. To make regional mechanisms the preferred option would be a major boost for ASEAN’s efforts aiming at strengthening conflict settlement in the region as envisaged in the ASCPA and in establishing the ASEAN Community. As seen from the perspective of the ASEAN conflict settlement framework bilateral dispute settlement that is in line with the regional framework is not a sign of weakness of the ASEAN framework, but rather supportive of it. On the other hand if or when bilateral approaches fail the decision by the parties to such a dispute situation to bring the case to international jurisprudence, e.g. to the ICJ, without first fully utilising the regional mechanism and framework, e.g. the High Council, can be seen as weakening the relevance of the ASEAN dispute settlement framework. In the context of regional security the strong emphasis on non-interference, non-threat or use of force and peaceful settlement of disputes within the framework of ASEAN regional collaboration contribute to enhance regional security and stability. Non-interference reduces the risk of neighbouring countries intervening in disputes within other countries. The adherence to the prohibition of threat or use of force in inter-state relations diminishes the risk of militarised inter-state disputes and conflicts between the countries of the region. The stated preference for peaceful settlement of disputes further diminishes the risk of disputes and differences leading to militarised conflicts between the countries of the region. In relation to the South China Sea situation within the ASEAN dispute management framework the TAC is the key mechanism to maintain peace and stability in the South China Sea since both the ASEAN members and China are parties to it. The TAC provides three core principles for managing inter-state relations: non-interference in the internal affairs of other countries, peaceful settlement of disputes, and overall co-operation. In addition the potential to use the High Council in disputes involving China has been made possible through China’s accession to the TAC in 2003 ASEAN and China should strive to strengthen the existing mechanisms for managing the situation in the South China Sea. This can be achieved by moving beyond the DOC and develop new arrangements, e.g. an ASEAN-China Code of Conduct. Such a COC could encompass guidelines for self-restraint, co-operation, and the application of international law. The adoption of guidelines for the implementation of the DOC in 2011 is a positive step. The on-going discussions relating to a possible COC among the member states of ASEAN as well as between ASEAN and China are further positive steps. The major lesson from the process leading to the DOC is that ASEAN must reconcile into a unified position and then through negotiation with China reach an agreement on a joint COC. In other words the path to a future COC involves two processes: an intra-ASEAN one and an ASEAN external relations one. REFERERENCES For a more detailed overview of the conflict management framework of ASEAN see Ramses Amer, “The Conflict Management Framework of the Association of Southeast Asian Nations (ASEAN)”, in Conflict Management and Dispute Settlement in East Asia, edited by Ramses Amer and Keyuan Zou (Farnham and Burlington: Ashgate, 2011), pp. 39-62 (hereafter Amer, The Conflict Management) “The ASEAN Declaration (Bangkok Declaration) Bangkok, 8 August 1967”, from the website of the Association of Southeast Asian Nations (http://www.asean.org/news/item/the-asean-declaration-bangkokdeclaration) (accessed on 14 March 2013) Information in this derived from Ramses Amer, “The Dispute Management Approach of the Association of Southeast Asian Nations (ASEAN): What Relevance for the South China Sea Situation?”, in Non-Traditional Security Issues and the South China Sea: Shaping a New Framework for Cooperation, edited by Shicun Wu and Keyuan Zou (Farnham, Surrey and Burlington, VT: Ashgate, 2014), pp. 47–72. For a shorter analysis see Ramses Amer, “The South Chins Sea: Challenge for ASEAN”, Policy Brief, No. 150 (31 March 2014) (Nacka: Institute for Security & Development Policy). “Protocol Amending the Treaty of Amity and Cooperation in Southeast Asia, 15 December 1987”, from the website of the Association of Southeast Asian Nations (http://www.asean.org/news/item/protocol-amending-thetreaty-of-amity-and-cooperation-in-southeast-asia-philippines-15-december-1987) (accessed on 20 September 2014) (hereafter Protocol Amending). “Second Protocol Amending the Treaty of Amity and Cooperation in Southeast Asia, Manila, Philippines, 25 July 1998”, from the website of the Association of Southeast Asian Nations (http://www.asean.org/archive/ASEAN_CHINA_G5_part2.pdf) (accessed on 20 September 2014), pp. 146–147 (hereafter Second Protocol). “2010 Third Protocol Amending the Treaty of Amity and Cooperation in Southeast Asia”, from the website of the Center for International Law, National University of Singapore (http://cil.nus.edu.sg/2010/2010-thirdprotocol-amending-the-treaty-of-amity-and-cooperation-in-southeast-asia) (accessed on 20 Sepetmber 2014) (hereafter Third Protocol). The "ASEAN way" and Internal conflicts presentation http://www.academia.edu/3170571/The_ASEAN_way_and_Internal_conflicts_presentation ASEAN's limits in conflict resolution in the region by Prof Kriengsak Chareonwongsak Senior Fellow, Harvard University & President of Institute of Future Studies for Development http://news.ntu.edu.sg/SAFNTU/Documents/Panel%201%20-kriengsak@kriengsak.com

Wednesday, July 29, 2015

Jelapang FM

http://www.liveonlineradio.net/malaysia/jelapang-fm.htm

Friday, March 30, 2012

PAD 120: INTRODUCTION TO POLITICAL SCIENCE

Here are some selected past examination questions and suggested (specimen) answers for them. Read them carefully and try to master the art and technique of answering exam questions.
1. Define legitimacy.
Legitimacy may be defined as the acceptance of a governing regime (government) as an authority. In other
words, the legal right to rule a country is called legitimacy. A legitimate system of government is one
which is based on authority. It means that those subject to its rule recognize its right to make collective
decisions and implement laws, policies and procedures.
Legitimacy may also be defined as the extent to which the citizens obey, without questioning, the laws and
accept the policies, the procedures, acts, decisions, officials and the leaders of the government and the system,
structure and manner of administering the government. In other words, the widespread belief and feeling
among the majority of the population of a country that the government's rule is rightful or legal is known as
legitimacy. It must be noted that legitimacy is judged in the court of public opinion, not in a court of law.
Carlton C. Rodee defines legitimacy as "the extent to which citizens regard the State, its institutions, its leaders or
policies and programmes as morally right or acceptable."

2. Explain the term legitimacy.
Legitimacy is whether or not people accept the validity or authority of a ruling government. A government that is based on the "consent of the governed" is considered "legitimate." In other words, if the majority of the citizens of a country obey the laws of the State; accept the decisions, policies and programmes of government leaders; accept the institutions of the government as legal; and believe that the government has authority and that it properly should have the authority, then the government is regarded as legitimate. ("Legitimate" means lawful, legal, proper).
Legitimacy has to do with rights : whether a government has the legal right to rule; whether the leader has been duly installed; whether correct procedures have been followed in enacting a law. Legitimacy is also considered as the relationship between the rulers and the ruled (governed): the citizens of a country authorize and submit themselves to the law in return for protections and benefits from the State.
A government is legitimate if it obeys the laws it makes and when its authority its widely accepted. To be legitimate, the government must be supported by the majority of citizens. The government must be clean and honest, free from corruption and govern the country according to constitutional principles. If a government lacks legitimacy, its stability and effectiveness might suffer; massive civil disobedience and violent protests and demonstrations may happen and it may also collapse. Examples of governments that collapsed on account of lack of legitimacy are: the government of the Shah of Iran in 1979; the government under the rule of President Marcos in the Philippines; the government under the rule of President Ceausescu in Romania; the government under the rule of President Alberto Fujimori in Peru; and the government under President Suharto in Indonesia.
3. How does a government achieve legitimacy?
There are many ways by which the people's loyalty may be bound to a government so that it is generally considered legitimate:
a. First and foremost, a government may gain and retain its legitimacy from its people by providing for them the things they most want: internal security; security from external aggression (security of their country's territory (borders) against foreign invasion; protection from domestic disturbance; economic prosperity and development; high employment; equal justice to all; protection of minority rights; sound economic and social policies; good governance and so on. If the government can provide these things, its legitimacy will be greatly strengthened. If it cannot, it will lose its legitimacy.
b. Second, a government can also achieve legitimacy by existing a long time. Long-established regimes are generally well-respected by their citizens. Once a government has been around for a while, people become accustomed generally to obeying its laws. People expect to operate under some government or other, so whatever government is in place and has been obeyed in the past, it is likely to be regarded as legitimate - unless a particular crisis arises or some force (another State, perhaps) intervenes from outside. In other words, once a particular government has been in place for a while, so that the people have developed the habit of obeying it, it no longer has to perpetually justify its existence. Rather, the burden of proof lies with whoever would propose an alternative government. The existing government remains legitimate unless and until a compelling alternative comes along. The Congress government under Jawaharlal Nehru in India and the Barisan Nasional government in Malaysia are examples of this.
c. Third, many governments enhance their legitimacy by the ties that exist between themselves and the people because of the government leaders' past accomplishments (their historic role) or because of the religious and or ethnic identity or similarity between the government leaders and the people. This may be especially important in a new State, in which the government has not yet been in place long enough for the people to have developed the habit of treating it as legitimate and in which the many economic and social problems that plague most new States make it difficult for the government to achieve legitimacy through better governance and better policies. Many governments of new States are able to buy time by virtue of the status they acquired in leading the State into independence in the first place. For example, the Congress Party in India, the party of Julius Nyerere in Tanzania and the National Liberation Front in Algeria all had a breathing space in which their governments were accepted, simply because they had led the independence movements which had established their States in the first place. Religious and ethnic ties may also be used by a government to enhance its legitimacy. In Iran, the regime of the Ayatollah Khomeini used its ties to the dominant Shiite (Shia) Muslim sect to enhance its legitimacy.
d. Fourth, the structure of government can also contribute to its legitimacy. If people feel and are satisfied that they are fairly and adequately represented in the government (in the cabinet and the legislature) and have a say in choosing their representatives and in the formulation of public policies and programmes, they are more likely to obey. The procedures of democratic election are what give a government its legitimacy. Democratic governments are chosen by competitive elections in which all citizens vote to decide which of the various alternative leadership teams are to govern. Because the resulting government has won broader support than any alternative, it gains a strong base of legitimacy. It is the government "of the people." Legislatures filled by appointment or by rigged general elections do not contribute much to legitimacy.
e. Finally, governments try to strengthen legitimacy by the use of national symbols. The national flag, historic monuments, national day parades, military tatoo and emotional speeches are aimed at convincing citizens that the government is legitimate and should be obeyed.
4. Discuss the differences between authority and power?
a. Authority is power based on a general agreement that a person has the right to issue certain commands and that those commands should be obeyed whereas power is the ability to influence the behaviour of others in accordance with one's own objective or desire.
b. An important element of authority is legitimacy, but power is the ability to use influence, persuasion, threat or force to achieve one's own objectives.
c. Authority regulates behaviour by speech and words and reasoning, but power controls behaviour by coercion.
d. Authority is based on laws or the constitution of a country whereas power is based on force or military strength.
e. Authority possesses accountability and responsibility, but power lacks these.
5. Explain the merits and demerits of rigid and flexible constitutions.
a. A flexible constitution is one which can be amended easily whereas a rigid constitution is one which requires a special and cumbersome procedure to amend it.
b. The great merit of a flexible constitution is that it can be changed according to changing circumstances or to meet new requirements or to meet any emergency. However, if a constitution is too flexible, there is a danger of instability and uncertainty. The constitution becomes a plaything in the hands of dishonest and unethical politicians and leaders. They keep on changing it according to their whims and fancies and vested interests. Such a constitution can create uncertainty which is not good for the progress of the country. If the people lose their faith in their constitution, there would be chaos and confusion and revolution in the country.
c. The great merit of a rigid constitution is that it is definite, stable and certain. The people can refer to a single document which contains all the fundamental principles with regard to the structure, functions and powers of the government. It is easy for the citizens to understand a written document and there is no uncertainty with regard to its future. The interests and rights of all the people are protected and no unscrupulous politician or political party can change it overnight. To amend a rigid constitution, a stringent procedure is required. In the case of the United States of America, for example, a constitutional amendment can only be passed by a two-thirds majority of the Congress (both the House of Representatives and the Senate) and three-fourths of the state legislatures. In Malaysia, constitutional amendments require a two-thirds majority in parliament (both Dewan Negara and Dewan Rakyat). However, in the case of a flexible constitution, (as in the United Kingdom) the legislature can pass both ordinary and constitutional laws by a simple majority. No special procedure is required.
d. Unlike the flexible constitution, a rigid constitution cannot be changed easily to adjust itself to changing situations. On account of this, the progress of a nation can be affected.
6. What are the characteristics of a good constitution
A good constitution must have certain qualities. It must be definite. It must be written down in a single document so that the people an understand what the constitutional law of the country is.
It must be written in simple, non-technical and clear language for the people to understand it better.
It must not be either too brief or too long. If it is too long, it will be dificult for the people to read and
understand it.
However, it must cover all the important legal principles and provisions, such as the system
of government; the powers and functions of the three branches of government;
the rights and privileges of the both the majority and minority groups; the procedure
for the amendment of the constitution; and the areas of responsibility of both the central
and State governments. In a Federal form of government like ours, the powers and functions
of both the Central and State governments should be clearly stated so that disputes or
misunderstanding will not arise.
Furthermore, it should " neither be so rigid as to prevent change or so flexible as to encourage
tampering with basic principles." In a multi-racial and multi-cultural country, the constitution
should safeguard the interests and rights of all the citizens to ensure peace, stability and unity.
While the constitution should be stable, certain and durable, it must not be too rigid. It must go on
changing with changing times and requirements. Above all, a constitution should suit the social,
economic and political needs of the nation.
7. Explain the two types of democracy.
Democracy means rule by the majority with the protection of minority rights.
The two types of democracy are: (i) Direct or Pure democracy and (ii) Indirect or
Representative democracy.
In a direct democracy, all the people meet at one place and decide the matters that
concern them. This means that all people participate in the decison-making process in a
direct democracy.
In the small city-states of ancient Greece, the adult male citizens met together in the Assembly
and decided the important issues of the day.
Representative democracy refers to governance through elected representatives. The people elect
their representatives during a general election who then make decisions (enact laws) on their behalf.
Some examples of countries that practise representative democracy are Malaysia, India, Australia.
8. Explain the weaknesses of democracy.
Democracy is a government by the representatives of the people.
1. In a democracy, government is in the hands of the majority party and that party can can afford to
tyrannise over the people.
2. Democracy is a very expensive form of government. In a democracy everyone has to be cared for and it
requires a lot of money to satisfy the needs of all. Moreover, a lot of money has to be spent on electoral
campaigns and frequent elections.
3. A democratic government takes a lot of time to implement its plans and programmes. Democracy is
government by consultation and hence it takes a lot of time to arrive at decisions.
4. Bribery and corruption are the common abuses of democracy. Not only the votes are bought, even the
law-makers and administrators are bribed. Money plays an important part in politics and that lowers the
moral standards.
5. Democracy puts emphasis on quantity and not quality. It makes the decision of the majority the law
even if the majority is a small one. The views of the minority are ignored as democracy puts emphasis
on the majority views.
9. Explain the characteristics of the unitary system of government.
A unitary sstem is one where there is one set of central institutions which have ultimate political and
legal auhority within the territory. Examples are: Britain, France, Japan, China.
a. All governmental power is held by the central government in the state's capital.
b. The central government may create lower levels of goverment (such as local authorities or regional
governments) and give them more or less powers, but the central government can also take away those
powers and abolish the lower levels of government according to its wish.
c. The policies and laws of the government are uniform and apply to all citizens in the country.
10. Explain two (2) advantages / benefits of a unitary state.
a. The primary benefit of this system is the clear, hierarchical authority structure which eliminates
stalemates (kebuntuan) among the regional political units.
b. The centralisation of power and authority in a single , national government, encourages citizens to
identify with the country as a whole, rather than expressing divided loyalties to regional authorities.
11. Explain the functions of a State.
The functions of the state are the following:
a. To formulate and enforce laws and policies for the whole country.
b. To protect the state against the threat of attack by other nations or from internal subversion.
c. To provide various services for the welfare and well-being of its citizens.
d. To conduct diplomatic relations with other countries.
12. Explain the rationale for the separation of powers.
Separation of powers refers to the principle that each of the three branches of goverment, namely,
the legislature, the executive and the judiciary, has its own responsibilities, functions and powers
while being legally independent of and equal to others.
The rationale for the separation of powers are the following:
a. To protect democracy
b. To avoid abuse of power by the government
c. To protect the rights and freedom of the people.
d. To enable each branch of government to act as a check on the others

Lesson 1: Discussion of constitutionalism and its relationship to human rights

This lesson introduces the concept of constitutionalism, while making a distinction between adopting a constitution and genuine constitutionalism. The relationship between constitutionalism, human rights and the rule of law is also discussed.

What is constitutionalism?

For genuine democracies, constitutions consist of overarching arrangements that determine the political, legal and social structures by which society is to be governed. Constitutional provisions are therefore considered to be paramount or fundamental law. All other laws within a country must abide by and follow the principles of the constitution. Under these circumstances, if constitutional law itself is inadequate, the nature of democracy and rule of law within a country is affected. This will affect citizens' human rights, which can only be realized and protected under a rule of law framework.

The structure of modern nations has been shaped with government being divided into executive, legislative and judicial bodies, with the commonly accepted notion that these bodies and their powers must be separated. This is one of the most fundamental tenets of modern governance, and as such is a key characteristic of any constitution. Of course, the separation of powers does not mean these bodies function alone, rather they work interdependently, but maintain their autonomy. Other tenets include the idea of limited government and the supremacy of law. Together, these can be termed the concept of constitutionalism.

In other words, constitutionalism is the idea that government should be limited in its powers and that its authority depends on its observation of these limitations. In particular, these limitations relate to legislative, executive and judicial powers. A constitution is the legal and moral framework setting out these powers and their limitations. This framework must represent the will of the people, and should therefore have been arrived at through consensus.

If these are taken to be the basic tenets of constitutionalism, then not all states with constitutions will have embraced constitutionalism; authoritarian governments or military dictatorships do not fulfil the tenets of the supremacy of law or the separation of powers. The judiciary in Cambodia for instance, is highly subordinate to the executive, blurring boundaries between the two arms of government. The huge number of disappearances of alleged political activists in Pakistan is a clear violation of the rule of law. The message sent to society in these cases is clear: it is not the constitution that reigns supreme, but those in power. It is therefore important to distinguish between adopting a constitution and genuine constitutionalism. This distinction becomes particularly important when constitutions are adopted to protect the interests of the ruling regime. A constitution is not merely a document introduced by the state with the title of 'constitution'. Many authoritarian regimes introduce such documents to justify arbitrary rule. Thailand for instance, has had a new constitution virtually every time there is a change of power. A genuine constitution however, is an attempt to limit and reverse all forms of arbitrariness.

Democracy and constitutionalism

Authoritarian governments are by their very nature unconstitutional. Such governments think of themselves as above the law, and therefore see no necessity for the separation of powers or representative governance. Constitutionalism however, is primarily based on the notion of people's sovereignty, which is to be exercised--in a limited manner--by a representative government. The only consensual and representative form of governance in existence today, is democratic government consisting of multiple political parties, fair elections, freedom of opinion and expression, and the rule of law. In this way, there is a very important and basic link between democracy and constitutionalism.

Just as mere constitutions do not make countries constitutional, political parties and elections do not make governments democratic. Several Asian countries have been termed 'illiberal democracies', for while they have periodic elections, they are not governed by the rule of law and do not protect the rights and liberties of their citizens. India and Sri Lanka are both examples of such countries, where the politicization of public institutions is common, where politicians and government officials are deemed above the law and where there is significant violence against minorities and marginalized groups. Genuine democracies rest on the sovereignty of the people, not the rulers. Elected representatives are to exercise authority on behalf of the people, based on the will of the people. Without genuine democracy, there can be no constitutionalism.

Rule of law

Rule of law refers to the supremacy of law: that society is governed by law and this law applies equally to all persons, including government and state officials [See Lesson Series 40 for a detailed study of the rule of law and human rights in Asia]. There are two aspects to the relationship between constitutionalism and rule of law: not only is constitutionalism the institutional basis for rule of law in any society, it is also safeguarded by the rule of law. Following basic principles of constitutionalism, common institutional provisions used to maintain the rule of law include the separation of powers, judicial review, the prohibition of retroactive legislation and habeas corpus. The independence of law making bodies is established, as is independence for judges in articulating and interpreting laws. Genuine constitutionalism therefore provides a minimal guarantee of the justice of both the content and the form of law.

On the other hand, constitutionalism is safeguarded by the rule of law. Only when the supremacy of the rule of law is established, can supremacy of the constitution exist. Constitutionalism additionally requires effective laws and their enforcement to provide structure to its framework.

Process of constitution making

It is now clear that the constitution is an essential document, laying out the framework of a nation's political, economic and social structure. How should such an important document come into being? First, it is necessary to note that not all constitutions are written documents. The greatest example of a constitution that cannot be found in a written format is the British constitution, which has however, existed for many centuries. Modern constitutions though, tend to be found in written documents.

A framework for a country's governance and structure cannot be laid out without deep intellectual and societal agreements on political, legal and moral issues. In order to arrive at such agreements, there must be considerable public debate and discussion prior to the adoption of any constitution. Such discussion must take into account that all societies will have conflicting interests. While certain interests will inevitably predominate, the impartial protection of rights and liberties should ensure that such dominant interests do not harm others. Drafting a constitution is therefore very much related to democracy and the rule of law.

Modern constitutions have tended to be written in the aftermath of colonial or military repression. They therefore learn from the mistakes of history, and write into new constitutions numerous limits and obligations of government. The 1947 Constitution of India for instance, paid much attention to the rights of individuals to participate in political affairs, as well as the duties of the government in protecting these rights, in particular by limiting the powers of arrest and detention. This was a direct consequence of colonial history, which saw hundreds of political activists taken away and tortured.

Questions For Discussion

1.�� �In your opinion, what are the most important aspects of constitutionalism? Discuss these in relation to the constitution of your country.
2.�� �Discuss the relationship between democracy and constitutionalism. Are non-democratic governments constitutional?
3.�� �How would you explain to a human rights activist or a law student the relationship between human rights and constitutionalism?

Constitutionalism

1. "Constitutionalist" redirects here. For parties called Constitutionalist see Constitution Party.
Constitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"
A political organization is constitutional to the extent that it "contain[s] institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those that may be in the minority". As described by political scientist and constitutional scholar David Fellman:
Constitutionalism is descriptive of a complicated concept, deeply imbedded in historical experience, which subjects the officials who exercise governmental powers to the limitations of a higher law. Constitutionalism proclaims the desirability of the rule of law as opposed to rule by the arbitrary judgment or mere fiat of public officials…. Throughout the literature dealing with modern public law and the foundations of statecraft the central element of the concept of constitutionalism is that in political society government officials are not free to do anything they please in any manner they choose; they are bound to observe both the limitations on power and the procedures which are set out in the supreme, constitutional law of the community. It may therefore be said that the touchstone of constitutionalism is the concept of limited government under a higher law.

PAD 120

INTRODUCTION TO POLITICAL SCIENCE
DEFINITION
Political science may be defined as the systematic study of the state and government. This means that political scientists study the origin, structure and functions of the state and government; political institutions; political processes; various forms of government; the behaviour of individuals, groups, leaders and decision-makers; relations among nations; political theories; and the various activities of governments. Political science also deals with such fundamental values as equality, freedom, justice, power and sovereignty.
Other definitions of political science
1. Political science is an academic and research discipline that deals with the theory and practice of politics and the description and analysis of political systems and political behaviour. (Catlin)
2. Political science is the study of shaping and sharing of power. (Lasswell)
3. Political science is that part of social science which treats of the foundations of the State and the principles of government. (Paul Janet)
4. Political science deals with the associations of human beings that form political units, with the organization of their governments and with the activities of these governments in making and administering law in carrying on inter-state relations. (Gettell)
SCOPE
The scope of political science is very vast. “Scope” means the sub-fields or subjects or branches or topics that come under the field of political science. In other words, it refers to the contents or subjects or topics covered under the study of political science. Political science is generally divided and organized into six main fields, each representing a major subject area of teaching and research in institutions of higher learning: (i) state and government (ii) political theory (iii) comparative politics (iv) public administration (v) political behaviour (vi) international relations.
State and government.
Political science is the study of state and government. It deals with the nature (characteristics) and formation/origin (history) of the state, the various functions and forms of government. This field of study also focuses on the various political institutions such as the Executive, Legislature, Judiciary, the Cabinet, the civil service, local government, political parties, government agencies, public opinion, voting and elections and pressure groups. Political science also studies the nature of the relationship between the individual and the state.

Political theory.
Political theory involves the study of the political thought or ideas of the great political thinkers (philosophers) from ancient Greece to the present. We study the political thoughts of Aristotle, Plato, Thomas Hobbes, John Rawls, John Locke, Montesquieu, and Rousseau and others to understand their ideas about the state and government. Based on the political ideas of these great thinkers, political theory develops, formulates and interprets concepts such as freedom, democracy, liberty, equality, human rights, justice, power and sovereignty. Political theory also involves the development of models for government, such as participatory democracy or constitutional systems and the logic that political scientists use in their inquiries.
Comparative politics (government).
Comparative politics involves the study of the politics of different countries – i.e. structure and forms/ systems of government, constitutions, legal systems, powers of various branches of the government, political institutions and practices, etc). Some political scientists, known as area specialists, study a single country or a culturally similar group of nations or the countries of a particular area of the world, such as the countries of Southeast Asia . Area specialists have better knowledge of the language, history and culture of the country or group of countries they study. Other political scientists compare culturally dissimilar nations and investigate the similarities and the differences in the politics of these nations. Political scientists who undertake these comparisons are often motivated by the need to develop and test theories- for example, theories of why revolutions happen. This may lead them to discover commonalities between countries that are widely separated and appear very different. For example, political scientists have found many similarities between the transitions from autocratic rule to democracy in Latin America and Eastern Europe in the 1980 and 1990s.
Public administration.
Public administration refers to the various activities and operations carried out by the government. These include policy-making, enacting laws, providing public services such as education, law enforcement, national security, health care, financial administration, planning and implementation of development projects, maintenance of peace and order, local government administration, crime prevention, settlement of criminal and civil cases by the courts, etc. Political scientists interested in public administration study government agencies and their relation to other parts of government. Political scientists investigate how these public agencies work and try to devise methods of improving their effectiveness. For example, David Osborne and Ted Gaebler’s book Reinventing Government (1992) inspired many national, state and local governments to adopt more competitive, less bureaucratic, better ways of delivering quality services to the public (“doing more for less”).
Political behaviour.
Political behaviour involves the study of how people involve themselves in political processes and respond to political activity and events. This field emphasizes the study of voting behaviour (why do people vote, how do people vote and what wins elections), public opinion (people’s reactions to specific policies, issues and problems), study of political parties and pressure/interest groups and the behaviour of political leaders in certain situations.
International relations.
International relations is the study of the international system , which involves interactions ( i.e. political, economic, trade, diplomatic relations) between nations, international organizations (such as the United Nations and its specialized agencies, the European Union, ASEAN, OIC, OPEC, NATO, APEC, World Trade Organization (WTO) and other regional organisations) and multi/transnational corporations. This field of political science covers a wide range of subjects and include diplomacy, foreign policy analysis, international law, international organizations, methods of international disputes settlement, role of small, middle and big powers in the international system, peace and war studies and defence studies.
METHODS (Methodology) OF POLITICAL SCIENCE
Methodology is very important in carrying out a systematic study of the goals, processes and institutions of the State and political events, incidents, phenomena and behaviour of individuals in a state. A method is a way of investigation for arriving at a particular finding or result. In a study of any political phenomenon, the method adopted should be explicitly stated, or it must be readily ascertainable. This would help others to retrace the steps, verify the reported facts and findings and examine the validity of the generalisations made on the basis of these facts. The following are some of the common methods adopted in political science to study political issues or subjects.
Statistical or Quantitative method.
This is one of the most modern and most useful methods for studying political issues or phenomena and hence it is very popular these days. This method is particularly applied to the study of political parties, public opinion, comparative governments, international relations, voting behaviour, general elections, etc. Political scientists who favour quantitative research most often use statistical methods such as opinion surveys and aggregate-level analysis. Opinion surveys ask a representative sample of individuals a series of questions about their behaviour, attitudes about politics, reactions to certain specific issues, their social status and other individual characteristics and come out with some findings.. In some countries, like the USA and the United Kingdom , Gallup Polls or public opinion polls are held to find out the trends in public opinion. Political scientists also commonly employ aggregate-level statistical analysis, in which administrative entities such as electoral districts, states or countries compose the units of analysis. Such analysis can be used to test broad theories – for example, the relationship between a country’s level of prosperity and how democratic its government is. In addition, time series analysis can be used to track political relationships involving time, for example, the voting strength of the various parties and the amount of government spending on social programmes over a ten-year period. However, the statistical method must be used with great care. We must be careful in the collection, use and analysis of the statistics. There is the possibility of the data supplied not being exact or accurate. Wrong decisions may be taken or wrong conclusions may be reached on the basis of wrong or inaccurate data. Statistics may be manipulated to suit the interests of a certain group. Those may be distorted for electoral and political manoeuvring. Despite this, it cannot be denied that a knowledge of statistical principles and sampling method is useful for investigating political events and issues.
Comparative method.
The comparative method involves the identification of similarities and differences. In other words, the very essence of this method lies in comparing different historical facts and political events for the purpose of finding the causes responsible for them. Similar events may occur under different political conditions or vice versa. Prof. Gilchrist has given the example of Revolutions which have taken place at all times under various conditions. By using the comparative method we may be able to find out why revolutions occur ; what are the main reasons /causes/consequences of revolutions; and are the conditions, causes and consequences the same or different and under what conditions are they different. Moreover, theories about the causes of revolution can be developed and tested by comparing the details of a few important revolutions. We may take the example of the Russian Revolution of 1917. Political scientists compare it to the French Revolution of 1789. They not only try to explain the causes and consequences but also point out the general principles which may serve as a guide for the future. The comparative method can also be used to compare different constitutions, legal and political systems, forms of government and working of democracy in various countries.
Historical Method.
The historical method is as old as Aristotle, the father of political science. This method aims to gather facts from past history (from documents and interviews) and arrive at some generalizations about political institutions. Every political institution has a history of its own ; institutions grow and are not made; they are the product of history, experience and experimentation. Therefore, without a proper knowledge of the genesis (origin), evolution and growth of the political institutions, there cannot be any in-depth study of politics. In other words, in order to understand any political event, institution or process, we must study its beginning and development. It is only by knowing the past and the present that we can plan for the ideal institutions of the future. According to Sir Frederick Pollock, the historical method “seeks an explanation of institutions as they are, and are tending to be, more in the knowledge of what they have been and how they came to be what they are, than in the analysis of them as they stand.” The formation of Malaysia , the development of the cabinet system, the evolution and growth of the parliamentary and federal systems of government and the growth of nationalism and democracy and the origin and development of the party system are some of the political events that could be studied using the historical method. The advantage of the historical method is that it clearly explains how and why certain political ideas, events and institutions originated and developed gradually. It further gives us a sense of history, a historical perspective. The disadvantage of this method is that history, as the record of past events, only explains what happened in the past without offering any effective solutions as to how political institutions and processes could be improved. Every age or generation is faced with some problems peculiar to it. History cannot help us in tackling such practical problem situations in a rapidly changing modern society like ours. Moreover, as history does not deal with values and ethical codes, the historical method does not offer any ethical guidelines or prescriptions to improve political institutions and processes.
Observational method.
The observational method involves visits to the outside world (countries) of political life to observe at close range the actual working of political institutions, processes and phenomena and collect valuable first- hand data/information and analyse it to reach some exact conclusions. The conclusions reached should be based on factual information and in-depth observation. Subjective views and personal prejudices of the researcher should be avoided. This method is useful for studying general elections, constitutions, systems of government and for assessing the social, economic and political conditions of countries. The main advantage of the method of observation is that it is practical and realistic. The facts/ information collected by the researcher can be verified and its truthfulness can be ascertained. The researcher writes down what he observes and studies the actual situation. Another merit of this method is precision, provided the researcher is well-informed, knowledgeable, truly competent and objective in his assessment of the information and situation.
IS POLITICAL SCIENCE A SCIENCE?
Before we examine the claim of political science to be called a science, we should understand the meaning of "science." "Science" may be defined as “a body of systematized knowledge.” So a knowledge that has been accumulated by a systematic process is called a science. A systematic method or scientific method consists of the following steps: (i) formulation of the problem; (ii) observation; (iii) classification; (iv) hypothesis; (v) verification; and (vi) prediction. Whenever a physical or social phenomenon is systematically analysed for formulating certain general principles or laws, we may call this method a scientific method. A knowledge that has been gathered as a result of systematic method should be called a science. So it is neither laboratory experiments nor universally valid laws that make a science a science. But it is systematic study or scientific methodology that makes a science a science. Physical sciences like physics, chemistry, biology, etc follow this scientific method while studying physical phenomena. Social sciences like sociology, political science and economics also follow this scientific method while studying a social phenomenon.
For example, a political scientist may observe the voting behaviour in a particular constituency for the purpose of formulating certain general principles. Aristotle studied the working of 158 constitutions; Likewise, Lord Bryce compared the working of democracy in various countries and then reached his conclusions on the relative merits and demerits of democracy. The bicameral legislature experiment of Britain has encouraged many countries to adopt the system. The same can be said about the working of the two-party system and proportional representation. It has been found by experience that democracy is a better form of government than other systems. It is more permanent than most other forms of government and helps more in promoting the welfare and well-being of the common people. Dictatorship, autocracy and aristocracy have been experimented in different parts of the world in ancient and modern times, but none of them proved successful.
Prof. R.N. Gilchrist is of the opinion that general laws can be deduced from the information collected and these could be helpful in solving the actual problems of the government. Lord Bryce believes that political science is a science “in the sense that there is constancy and uniformity in the tendencies of human nature, which enables us to regard the acts of men at one time as due to the same which have governed their acts at previous times.”
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Constitutions
Every state must have its own constitution. It is the way in which the State organises itself and the functions of its government. The constitution, is therefore, a set of rules, either written or unwritten, that determine the structure of the State and government, the distribution of the powers of various organs of the government and the relations between the rulers and the ruled. The Oxford English Dictionary defines a constitution as 'the system or body of fundamental principles according to which a nation or state is constituted and governed.' A constitution is also defined as 'the fundamental law of a state', ' the collection of principles according to which the powers of the government, rights of the governed and the relations between the two are adjusted' and as 'a written instrument by which the fundamental powers of the government are established, limited and defined and by which those powers are distributed among the three branches of the government for their more safe and useful exercise for the benefit of the state.'

Purposes of constitutions
i. Constitutions establish a supreme law of the land. They state the fundamental laws of society and are not meant to be easily revised.
ii. They serve as a yardstick by which any activities of the government or the people are to be measured or evaluated.
iii. They indicate the values, ideas and goals that seem to best express the spirit of the national political culture.
iv. A constitution is also a blue print and a plan of government. It is a written description of who does what in government, defining the authority and limiting the powers of each branch and providing a mechanism for the resolution of conflicts.
v. A constitution also outlines the division of power between central and regional governments in a federal state. In a federal system of government, powers and responsibilities are divided between the national (central) government and several state or regional governments. Malaysia is a Federal State. Its constitution gives the central government control over certain areas of responsibility, such as defence, foreign affairs, finance, trade, education and health.
vi. Another role of a constitution is to give a government the stamp of legitimacy. Many nations in the world community will not even recognise a new state until it has adopted a written constitution. Constitutions proclaim the values of a new regime while also establishing a permanent outline for the organisation of government. As a symbolic statement of intentions with a practical outline of structure, a constitution helps to set the stamp of legitimacy on a new government. This is the main reason why almost every nation has adopted a constitution as soon as gaining independence.

Classification of constitutions
Constitutions have been classified as written (codified) , unwritten (uncodified) , rigid and flexible.
A written constitution is one in which most of the provisions are written down in a single document. Malaysia, India, the United States of America, Canada, etc., have written constitutions. Whenever there is a written constitution in a country, a distinction is made between constitutional law and the ordinary laws. There is a special procedure laid down for the amendment of the written constitution. The ordinary law can be enacted, amended and repealed by a simple process which is different from the one laid down for the constitution. All federal states have written constitutions. The great merit of a written constitution is that it is very definite. The people can refer to a document which contains all the fundamental principles concerning the structure and working of the government. It is easy for the masses to understand a written document. Moreover, as the powers of the various organs of the of government are clearly defined in the constitution, there are less chances of confusion and disputes. Even if a dispute arises, it can be referred to the judiciary, whose duty it is to decide it.
An unwritten constitution , on the other hand, is one in which most, but not all, the fundamental laws have been reduced to writing. An unwritten constitution consists largely of customs, usages and judicial decisions. It also consists of some written element which the legislature might enact from time to time. The best example of an unwritten constitution is that of the United Kingdom (England). The British constitution does not consist of a single document as ours does. Parts of the British constitution are in written form. They consist of court decisions, charters such as the Magna Carta and the English Bill of Rights and statutes (i.e. laws passed by parliament). However, an important part of the British constitution is unwritten. It consists not of documents but of certain customs, conventions and traditions about the government that the British people generally agree upon. For example, no written document spells out that the government is to be headed by a Prime Minister elected by Parliament. Rather, this has come about over the years as a result of tradition. Contrast this with the detailed way our (Malaysian) written constitution describes the office of Prime Minister and how it is to be filled.
A rigid constitution may be defined as one which cannot readily or easily be amended. This does not mean, of course, that it cannot ever be amended, but that any necessary amendments to the basic constitutional provisions may only be made by means of a special process or procedure provided by the constitution for that purpose. In the United States, for example, the method of proposing amendments to the constitution is by a two-thirds vote of both chambers of Congress (i.e. the Senate and the House of Representatives), and then ratification by three- fourths of the state legislatures (i.e. approval by 38 of the 50 states). In Sweden, constitutional amendments must be passed by two successive legislatures, with a general election in between. In Malaysia, constitutional provisions can only be amended by the approval of two -thirds of both houses of Parliament. The chief merit of a rigid constitution is that it is definite, stable and certain. The people know the constitutional law of the country and there is no fear regarding its future. No unscrupulous politician or political party can change it overnight. The various interests in the country and the fundamental rights of citizens are well-protected as these are enshrined in the constitution. A rigid constitution is absolutely essential in the case of a Federation. The demerit of a rigid constitution is that cannot be changed to adjust itself to changing situations or circumstances.
A flexible constitution is one which can be readily or easily amended without any special procedure. In Britain, for example, there is no special legal procedure to amend the constitution. Parliament has the power to pass/ amend constitutional laws in the same way as it passes the ordinary laws. This means that there is absolutely no distinction between the procedure of passing ordinary and constitutional laws. The British constitution is flexible in the sense that it can be amended by a simple majority vote of its Parliament. The great merit of a flexible constitution is that it can be amended according to changing situations and circumstances. However, if a constitution is too flexible, there is a danger of instability in the country. It becomes a plaything in the hands of unscrupulous politicians and parties. They keep on changing it according to their own whims and fancies and vested interests. Such a constitution can create uncertainty and instability in the country. This can hinder socio-economic development of a nation.
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Democracy
Democracy refers to any system of government in which rule is by the people. The term democracy comes from the Greek “demos” (meaning "the people") and “kratia” (meaning "rule") or, putting the two together, rule by the people. The key idea of democracy is that it is the people who hold sovereign or supreme power. Thus, government is conducted by and with the people's consent. Abraham Lincoln best captured this spirit in describing democracy as “government of the people, by the people, and for the people”. In short, democracy is a form of government in which the people rule themselves either directly or indirectly through their representatives.
Characteristics of democracy
Individual liberty.
Democracy requires that all individuals must have as much freedom as possible consistent with order. No individual, of course, can be completely free to do absolutely anything he or she wants. That would result in disorder or even violence. Rather, democracy requires that all persons be as free as possible to develop their potential and personalities. In Malaysia, the fundamental liberties of citizens are enshrined in articles 5 to 13 of the Federal Constitution.
Majority rule with minority rights.
Democracy requires that government decisions be based on majority rule, but with the rights of the minority protected. Since democracy means rule by the people, majority rule answers the question of how the government determines what the people want. In a democracy, people usually accept decisions made by the majority of the voters in a free election. Laws enacted in our legislatures represent the will of the majority of the legislators and are accepted as such by the people and public officials. Democracy requires that the majority not use its power to diminish or abuse/violate the rights of the minority. Further, the minority must respect the rights of the majority.
Free elections.
All genuine democracies have free and open elections. Free elections at regular intervals (say once in five years) give people the chance to choose their leaders and to voice their opinions on various issues. Free elections also help to ensure that public officials are responsive to the needs and wishes of the people. In a democracy, free elections means: (a) that all citizens have equal voting power. In other words, the votes of all persons carry the same weight - a principle often expressed in the phrase "one person, one vote." (b) that all candidates have the right to express their views freely, choose their preferred leaders, and voters have access to competing ideas or programmes. (c) that citizens are free to organise in support of candidates or issues, and (d) that citizens are able to vote freely by secret ballot, without coercion or fear of punishment for their voting decisions.
Competing political parties.
Rival political parties are an important element of democratic government. A political party is a group of individuals who organise to win elections, form a government and determine public policy. Rival parties help make elections meaningful. They give voters a choice among candidates representing different interests and points of view. They also help simplify and focus attention on key issues for voters. Finally, in democratic countries, the political party or parties that are out of power serve as the Opposition. That is, by criticizing the policies and actions of the party in power, they can help make those in power more responsive and responsible or accountable to the people.
Popular representation.
In representative democracies, the voters elect representatives to act as legislators (to enact laws) and to voice and protect their general interest. Each legislator usually acts for a given constituency, district or group of people.
Free press.
Authoritarian regimes or dictatorships cannot tolerate free and critical mass media; democracies cannot do without them. One of the surest ways of determining the extent of democracy in a country is to see how free its press is. The press provides citizens with facts (information), raises public awareness and keeps rulers responsive to people's demands, needs and wishes. Without a free and critical press, those in power can disguise wrongdoing and corruption and lull the population into passive support.
Limited government.
A democratic government is carried on according to the principles, rules and provisions laid down in the constitution. This means that the powers of the government are restricted by the constitution. In other words, the government cannot exercise its powers arbitrarily, or abuse its powers according to its own whims and fancies.
Independent judiciary.
In a democracy, the judicial branch of the government functions independently. In Malaysia. the Federal Court, as the highest (apex) court, resolves disputes between citizens , between citizens and the government and between the state and Federal Governments.
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SOVEREIGNTY
The term sovereignty is derived from the Latin word “supremitas” which means supremacy or supreme authority or absolute power.
DEFINITIONS
According to Bodin, “ Sovereignty is the supreme power of the State over its citizens unrestrained by law.”
Willoughby defines sovereignty as “ the supreme will of the state.”
The Microsoft Encarta Encyclopedia describes sovereignty as “ absolute political and military power embodied in a ruler or governmental body."
Grotius defined it as “ the supreme political power vested in him whose acts are not subject to any other and whose will cannot be overridden.”
Soltau describes sovereignty as the exercise of “final legal coercive power by the state.”
According to Laski, the sovereign is “legally supreme over any individual or group.” It possesses “supreme coercive power.”
Jenks defines sovereignty as “an authority which, in the last resort, controls absolutely the actions of every individual member of the community.”
Duguit says that sovereignty is the “commanding power of the state ; it is the will of the nation organized in the state; it is the right to give unconditional orders to all individuals in the territory of the state.”
Burgess describes it as “the unlimited and independent power of the state to command and compel obedience.”
Based on the above definitions, we could define sovereignty as the supreme and absolute authority of a state over its citizens and territory. Sovereignty means that a state is independent of other states; it can govern its own territory; declare war; enact and enforce any laws or policies within its own territory; it can compel or force its citizens to pay taxes or obey its laws and punish those who disobey its commands; it can have diplomatic and trade relations with any country; it is independent and no other state can control it or interfere in its internal affairs.
CHARACTERISTICS OF SOVEREIGNTY
The following are the characteristics of sovereignty: (i) permanence; (ii) exclusiveness; (iii) all-comprehensiveness (Universality); (iv) Inalienability; (v) Indivisibility; and (vi) absoluteness.
(i) Permanence. Governments may come and go, but the state remains for ever. As the state is permanent, so is its sovereignty. So long as the State lasts, sovereignty also lasts. The State and sovereignty cannot be separated from each other. Sovereignty continues or remains uninterrupted by changes in government in a State. When there is change of government or ruler, sovereignty shifts to the new government or ruler. But sovereignty as an attribute of the State continues. It is in this sense that sovereignty is claimed to be permanent.
(ii) Exclusiveness. Another characteristic of sovereignty is exclusiveness. It means that the State alone possesses supreme power and is legally competent to compel the obedience of its citizens. In other words, there cannot be more than one sovereign in a state claiming the legal obedience of the people. Acceptance of more than one supreme and ultimate power would affect the essential unity of the State.
(iii) All-Comprehensivenes. The all-comprehensive and universal character of sovereignty denotes that within a State, the authority of the sovereign must extend to all persons, associations and groups existing within the territory of the State. Hence, the commands of the sovereign are binding on all persons and groups. No one can be exempted or free from the all-embracing authority of the State. However, foreign diplomats and ambassadors enjoy immunity from the control of the State in which they reside. They are subject to the laws of their own states. But these extra-territorial privileges enjoyed by the diplomatic community under the provisions of international law is not a real limitation on the State’s sovereign power; for it is, after all, a matter of international courtesy and the sovereign may at any time withdraw the privileges granted to those who enjoy them.
(iv) Inalienability. Sovereignty is also inalienable. It cannot be transferred or parted with, without destroying sovereignty itself. In other words, no sovereign can claim to be sovereign after transferring its supreme powers to another person. However, the abdication of a monarch or sovereign or a change of government does not mean the alienation of sovereignty – in this case, sovereignty only shifts to a new bearer. When a state cedes a portion of its territory, it loses its sovereignty over the area ceded. For example, when the United States and its allies occupied Iraq , sovereignty shifted to them, but later sovereignty was transferred to the Iraqis soon after the elections.
(v) Indivisibility. Sovereignty cannot be divided. The reason is that if sovereignty is divided, more than one state would exist. Sovereignty is an entire thing- to divide it is to destroy it. It is the supreme power in a state and we cannot think of two or more states sharing sovereignty. In a Federal state, there is no division of sovereignty as sovereignty rests with the Federal government. The division, distribution, delegation or sharing of powers between the Central government and the state governments do not affect the idea of undivided sovereignty.
(vi) Absoluteness. Sovereignty is absolute and unlimited. This means that neither within the state nor outside it is there any power which is superior to the sovereign. Within the state, the sovereign can make any law it pleases. It can even change the constitution itself. No other authority within the state has this power. Externally, the state is not subject to the control or domination of another state. In other words, there is no authority outside the state to which a sovereign is obedient or dependent. The state can enter into any treaty or have relations with any other state it wishes.
TYPES / KINDS OF SOVEREIGNTY
Sovereignty has been classified into different types : (a) Internal sovereignty; (b) External sovereignty; (c) Popular sovereignty; (d) Legal sovereignty; (e) Political sovereignty; (f) Titular sovereignty; (g) De Jure sovereignty; and (h) De Facto sovereignty.
(a) Internal sovereignty. Internal sovereignty means that the state has complete legal and ultimate authority and control over all individuals and associations within its territory. The state has the authority to issue orders or commands to all citizens and associations in the state and use force, if necessary, to get people obey its orders or laws; it receives orders from none of them; its will is subject to no legal limitation of any kind; what the state proposes is right by mere announcement of intention. In other words, no individual or group has the legal right to act against the decisions of the state. The authority of the state is supreme in all its internal matters.
(b) External sovereignty. External sovereignty means that the state is legally independent of other states. It is not subject to the control or domination of foreign nations. No state can interfere in the internal affairs of another state. The state is free to conduct its own affairs according to its will.
(c) Popular sovereignty. Popular sovereignty means that the supreme power and the ultimate authority in the state rests with the people. They alone decide as to how the government should be run or administered. In other words, the government of a country should be carried on according to the public opinion prevailing in that country because the government exists for the good of the people. If the wishes of the people are ignored, there will always the possibility of a revolution. Moreover, there should not be unnecessary use of force by the state. The government should be held responsible to the people through periodical elections. In short, popular sovereignty means government is run according to the will of the people through the exercise of the right of voting. People can elect any leader or party they like to form the government. The government is formed by “the consent of the governed."
(d) Legal sovereignty. By legal sovereign we mean “the person or body in whom resides as of right the ultimate power of laying down the general rules.” It is , in other words, the sovereign whom the law recognizes as sovereign. For instance, in the United Kingdom the parliament is legal sovereign as it is the final and supreme law-making authority in that country. There is no other power or body of persons that can declare laws enacted by parliament (legislature) as ultra vires or invalid. Similarly, in Malaysia parliament is the legal sovereign. It alone declares in legal terms the will of the state through laws passed by it from time to time. Some writers interpret legal sovereignty as the ability of a state to make its own laws or amend or repeal its own laws without limitations imposed by any outside authority.
(e) Political sovereignty. In a democratic country, while the legal sovereign is the supreme law-making and law- enforcing authority, there is behind it the will of the people which is the ultimate and final source of all authority. It is the authority from whose verdict there can be no appeal. For example, while parliament may be the legal sovereign in Malaysia, the real power behind the parliament is the electorate. It is the power of the electorate that empowers parliament. The decision of parliament is always influenced by public opinion. It is for this reason that it is said that the electorate constitutes the political sovereign. Some writers identify political sovereignty with the mass of the population, some with public opinion, some with the electorate and some with groups who have the power to bring about changes in the government.
(f ) Titular sovereignty. The term "titular sovereignty" is used to denote a king or queen who has no real powers but one who symbolizes the sovereign power of the state. Perhaps the best example of a titular sovereign is the British Queen Elizabeth II. The monarch has only nominal powers but no real powers. All powers are exercised on her behalf by the Ministers who are responsible to the British parliament. The Queen is the constitutional monarch of England, having merely a titular position in the constitutional system. Yet all orders and commands are issued in the name of the Queen (Her Majesty's Government). In Malaysia, the Yang di-Pertuan Agong is also a titular sovereign. Under the Federal Constitution, he acts on the advice of the Cabinet. He has only nominal powers. Actual or real power is with the Cabinet.
(g) De Jure sovereignty. "De Jure" means "according to the law". De Jure sovereignty is based on law. The de jure sovereign is competent to issue the highest command of the state and it has the legal right to command obedience. The law of the land recognises only one authority, i.e. de jure sovereign. To put it differently, a de jure sovereign is one who is considered to be sovereign in the eyes of the law, (i.e. legal sovereign) although he may not exercise actual control over a territory or administer a government. The Yang di- Pertuan Agong is the de jure sovereign in Malaysia. Queen Elizabeth II is the de jure authority in the United Kingdom and Australia.
(h) De facto sovereignty. The term "de facto" means something that does not exist in the eyes of the law (not recognised by law). The de facto sovereign is one who possesses the actual power, but is not recognised by law. Sometimes it may so happen that a legal sovereign may be replaced by force (during a military coup) or otherwise (when a ruler is seriously ill, etc) by another ruler or authority who exercises sovereign rights without a legal basis. In such cases, the person is called de facto sovereign. For example, after the overthrow of Chiang Kai-shek in 1949, the Communists became the de facto sovereign of China. Other examples of de facto sovereignty are: Overthrow of Prime Minsiter Zulfikar Ali Bhutto by Gen. Zia Ul-Haq in Pakistan (1977); Overthrow of Prime Minister Nawaz Shariff by Gen. Pervez Musharaaf in Pakistan ( October 1999) that made Musharaaf the President of Pakistan; Overthrow of Mohammad Reza Shah Pahlavi (Shah of Iran) during the Iranian Revolution in 1979 that made Ayatollah Khomeini the Head of State; Crown Prince Abdullah bin Abdul Aziz taking over the control of government administration in Saudi Arabia following a stroke suffered by King Fahd bin Abdul Aziz in 1995 - Abdullah bin Abdul Aziz was appointed monarch following the death of King Fahd on 2nd August 2005. It must be noted that generally the de facto sovereign becomes the de jure sovereign in the long run (either by formal appointment or through a general election).
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Parliamentary Government
A parliamentary form of government is one in which the executive is responsible to the legislature. It is also called the cabinet system of government. In Malaysia, India, the United Kingdom, Canada, Australia, Japan, Switzerland, etc., we have a parliamentary form of government.
Characteristics
a. There is always a dual executive - one executive is nominal and the other is real. In Malaysia, the nominal executive is the Yang di-Pertuan Agong and the real executive is the cabinet. The nominal executive does not exercise any powers. He is required to act in accordance with the provisions of the constitution - i.e. he acts on the advice of the Prime Minister. All the powers of the government are enjoyed and exercised by the cabinet, which is responsible to the legislature and through it to the people. The nominal executive is the head of state whereas the real executive - the prime minister - is the head of government.
b. In parliamentary systems, voters elect only a legislature. The legislature then elects an executive from among its members.
c. The majority party in parliament forms the government. The prime minister who is the head of the largest party in parliament, names a team of ministers who are themselves members of the parliament. These ministers then guide the various ministries or departments of government that form the executive branch. The prime minister and the ministers are responsible or answerable to the parliament for all their actions.
d. The ministers are the members of the legislature as well as the executive heads of government departments. Thus they enjoy a dual position. As members of the majority party in parliament, they formulate public policy and are responsible for enacting laws. As members of the executive, they control the different departments of the government and enforce those laws and implement public policy. The theory of separation of powers, therefore, does not hold true in a parliamentary form of government. The ministers remain in office so long as the party to which they belong to enjoys the support and confidence of the majority members of the legislature. They have no fixed term of office. If they are defeated in the legislature, they have to resign.
Advantages of parliamentary government
The most important merit of a parliamentary form of government is the harmony and co-operation between the legislature and the executive. This is due to the fact that only the majority party in the parliament is allowed to form the cabinet. As the cabinet is always sure of its support in the legislature (because the executive and legislative branches are governed by the same party), it feels confident that whatever legislation (laws) it initiates, will be passed without any change. This accounts for the solidarity of the government and its stability. A stable government ensures efficiency, effectiveness and the speedy implementation of the policies which received the approval of the electorate at the time of the general election.
In a parliamentary government, responsibility of the government is continuous and immediate. The weaknesses and blunders of the government can be criticized and condemned without any loss of time . The legislature sits most of the time and the ministers too sit in the legislature. There is no difficulty in asking the ministers questions and supplementary questions. If the actions of the government are wrong, the prime minister and cabinet can be speedily ousted by a vote of no confidence in the parliament.
Parliamentary government is the best specimen of representative democracy as it recognises the ultimate sovereignty of the people and ensures ministerial responsibility. The elected representatives of the people are the trustees of the whole nation. If they act against public opinion, they may not be elected again. Their actions are always under scrutiny.
Another merit of parliamentary government is its flexibility and elasticity. Under this form of government, people can easily change the government without a bloody revolution and 'choose a ruler for the occasion' who may be specially qualified to manage a crisis situation. At the time of the Second World War, Chamberlain was replaced by Churchill as Prime Minister because national emergency demanded it and this change was brought about without any political upheaval in England.
One other advantage of parliamentary form of government is its high educative value. It cannot function without well-organised political parties. The aims of political parties are to mould and educate public opinion, win elections and form the government. They place before the people different manifestoes or programmes. For winning elections, the electorate must approve the programmes of the parties. All this makes the people politically conscious and vigilant.
A final merit of parliamentary government is that it is in the real sense a government by criticism. Whereas the majority party in the legislature forms the government, the minority party forms the opposition. The opposition criticises and acts as a check and balance on the government. There is a saying in England that the Prime Minister knows the Leader of the Opposition better than his wife! This explains how far the cabinet is alive to the criticism of the opposition.
Demerits of parliamentary government
If a parliamentary system has certain merits, it has its shortcomings too.
a. It violates the theory of separation of powers as it combines the executive and legislative functions in the same group of individuals. This leads to tyranny or 'cabinet dictatorship'. A party can get anything done or can rule as it pleases if it is backed by a majority in the parliament.
b. A parliamentary government is weak in times of war or an emergency situation. As the cabinet consists of large number of ministers, and there are 'many minds to be consulted', it cannot take prompt or quick action or make decisive decisions in times of national crisis.
c. The parliamentary system of government is unstable. The government has no fixed life. It remains in office only so long as it can retain its parliamentary majority which is subject to the whims and fancies of the representatives and they may frequently change their opinion. The uncertainty in the tenure of office does not encourage the party in power to adopt a far-sighted and consistent policy. There is hardly any continuity of policies in a parliamentary government, particularly in a coalition government or under a multi-party system.
d. The Opposition often opposes the policy and the bills introduced by the party in power irrespective of their merits. Political parties sometimes distort public opinion and do more harm than good. Irresponsible criticism by the opposition may pose a threat to national unity, stability and prestige.
e. A parliamentary government is ineffective and inefficient because it is a government by amateurs. The ministers in-charge of their departments know very little about their departments. Sometimes, following a cabinet reshuffle, they are transferred from one department to another. the result is that they do not have enough experience of the working of the departments which they head. Therefore, much cannot be expected from them in terms of efficiency or effectiveness in work performance.
f. In a parliamentary form of government, the cabinet system degenerates into a party government in which the political power is monopolised by the majority party. So long as parliamentary majority is assured it assumes dictatorial powers neglecting the interests and rights of the minorities. With the growth of rigidity in the party discipline, every member must obey the party whip, otherwise he is liable to party discipline, which may mean the end of his political career. Members, therefore, cannot be objective or independent. They are required to support their party blindly, much against their conscience or judgment.
In spite of these defects, and some of them are real, it cannot be denied that the parliamentary system of government is both responsible and responsive. There is no other form of government which fulfils these democratic ideals. It is for this reason that the Malaysian Constitution provides for such a system.
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Features of a Federation
A federation is a union among several States agreeing to form a new State either for political or economic reasons - i.e. to promote economic prosperity or to resist external aggression. They believe in the saying that 'unity is strength'. According to Freeman, a federation is the coming together of a number of States formerly separated and sovereign into some kind of arrangement to secure the common safety and prosperity. The United States of America was originally a union of the thirteen states. Now it is the union of fifty (50) States. Other examples of a federation are : Malaysia, India, Canada, Australia, Switzerland, etc.
The following are the distinguishing features (characteristics) of a federation:
a. Co-existence of two governments. In a federal system, the territory of the entire State is divided into a number of autonomous (independent) units. Each of these units is known as a State or province and has a regional government. Thus in a federation we have two layers or levels of government - i.e. a central government and several regional or state governments. In Malaysia (a union of thirteen states) the regional governments are called State Governments, in Canada as Provincial Governments and in Switzerland as Cantonal Governments.
b. Division of powers. This is the most important feature of a federation. Each of the two sets of governments in a federation (i.e. the Central government and the State governments) has specified powers to exercise. This allocation or division or sharing of powers between the central and state governments is enshrined in the constitution itself. In Malaysia, for example, the powers of the Federal Government is specified in the Federal List whereas the powers of the State Governments are clearly spelt out in the State List in order to avoid disputes. The general principle in the division of powers is that all powers which are of national importance, e.g., defence, foreign affairs, national finance, trade, external borrowing , education, etc., are assigned to the central government and matters of provincial or local interest like sewerage, land, local government affairs, entertainment , etc., are granted to state governments.
c. A written and rigid constitution. All federal states have a written constitution. This is because in a federal system there is sharing or division of powers, which must be laid down in clear, definite and precise terms. The constitution is not only a written one , it is also rigid to ensure that the central or regional governments do not alter the federal characteristics of the State as and when they like. Further, a federal constitution is supreme over the laws passed by both the central and regional governments. In case a law enacted by both the central and regional governments conflicts with the provisions of the federal constitution, the law in question would be invalid.
d. A federal judiciary. A federal government is like a contract or agreement. As such, there may be numerous occasions for conflicts between the states and the central government or among the states on matters or questions of jurisdiction, powers, functions or administrative relations. In order to decide such disputes, the federal constitution provides for a supreme court. The independence of this court is maintained by making the tenure of the judges permanent during good behaviour. In Malaysia, the highest (apex) court is known as the Federal Court.