SOURCES OF MALAYSIAN LAW

WRITTEN LAW

WRITTEN LAW

Written law in Malaysia comprises of:

The Federal Constitution 2) State Constitutions 3) Legislation 4) Subsidiary legislation

1)

THE FEDERAL CONSTITUTION

It

is the supreme law of the country. It applies to all States in the Federation. It laid down the powers of the Federal and State Governments. It also enshrines the basic or fundamental rights of the individual.

CONT
The

Constitution is divided into 15 Parts and 13 Schedules. Currently, there are 230 articles in the 15 parts, including those that have been repealed.

Part

I - The States, Religion and Law of the Federation Part II - Fundamental Liberties Part III - Citizenship Part IV - The Federation Part V - The States

CONT
Part

VI - Relations Between the Federation and the States Part VII - Financial Provisions Part VIII - Elections Part IX - The Judiciary Part X Public Services Part XI - Special Powers Against Subversion, Organised Violence, and Acts and Crimes Prejudicial to the Public and Emergency Powers

CONT
Part

XII - General and Miscellaneous Part XIIA - Additional Protections for States of Sabah and Sarawak Part XIII - Temporary and Transitional Provisions Part XIV - Saving for Rulers' Sovereignty, Etc. Part XV - Proceedings Against the Yang diPertuan Agong and the Rulers.

CONT
The

following is a list of the schedules to the Constitution.

First Schedule - Oath of Applicants for Registration or Naturalisation Second Schedule - Citizenship by operation of law of persons born before, on and after Malaysia Day and supplementary provisions on citizenship Third Schedule - Election and removal of the Yang diPertuan Agong and his deputy

CONT
Fourth Schedule - Oaths of Office of the Yang diPertuan Agong and his deputy Fifth Schedule - The Conference of Rulers Sixth Schedule - Forms of Oaths and Affirmations Seventh Schedule - Election and Retirement of Senators Eighth Schedule - Provisions to be inserted in State Constitutions

CONT
Ninth Schedule - Legislative Lists Tenth Schedule - Grants and Sources of Revenue assigned to States Eleventh Schedule - Provisions of the Interpretation and General Clauses Ordinance, 1948 (Malayan Union Ordinance No. 7 of 1948), applied for interpretation of the Constitution Twelfth Schedule - (Repealed) Thirteenth Schedule - Provisions relating to delimitation of Constituencies

ARTICLE 1 : THE FEDERATION AND STATES

(1) The Federation shall be known, in Malay and in English, by the name Malaysia. (2) The States of the Federation shall be Johore, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Sabah, Sarawak, Selangor and Terengganu. (4) The territory of the State of Selangor shall exclude the Federal Territory of Kuala Lumpur established under the Constitution (Amendment) (No. 2) Act 1973 [Act A206] and the Federal Territory of Putrajaya established under the Constitution (Amendment) Act 2001 [Act A1095] and the territory of the State of Sabah shall exclude the Federal Territory of Labuan established under the Constitution (Amendment) (No. 2) Act 1984 [Act A585], and all such Federal Territories shall be territories of the Federation.

ARTICLE 3 : RELIGION OF THE FEDERATION

(1) Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation. (2) In every State other than States not having a Ruler the position of the Ruler as the Head of the religion of Islam in his State in the manner and to the extent acknowledged and declared by the Constitution of that State,

(3) The Constitution of the States of Malacca, Penang, Sabah and Sarawak shall each make provision for conferring on the Yang di-Pertuan Agong the position of Head of the religion of Islam in that State.

Article 4 : Supreme Law of the Federation (1) This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

Article 5 : Liberty of the person (1) No person shall be deprived of his life or personal liberty save in accordance with law.

Article 6 : Slavery and forced labour prohibited (1) No person shall be held in slavery.

ARTICLE 32 : SUPREME HEAD OF THE FEDERATION, AND HIS CONSORT

(1) There shall be a Supreme Head of the Federation, to be called the Yang di-Pertuan Agong, who shall take precedence over all persons in the Federation and shall not be liable to any proceedings whatsoever in any court except in the Special Court established under Part XV. (2) The Consort of the Yang di-Pertuan Agong (to be called the Raja Permaisuri Agong) shall take precedence next after the Yang di-Pertuan Agong over all other persons in the Federation. (3) The Yang di-Pertuan Agong shall be elected by the Conference of Rulers for a term of five years, but may at any time resign his office by writing under his hand addressed to the Conference of Rulers or be removed from office by the Conference of Rulers,....

ARTICLE 40 : YANG DI-PERTUAN AGONG TO ACT ON

ADVICE
(1)

In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet,...

ARTICLE 43 : CABINET

(1) The Yang di-Pertuan Agong shall appoint a Jemaah Menteri (Cabinet of Ministers) to advise him in the exercise of his functions.

(2) The Cabinet shall be appointed as follows, that is to say: (a) the Yang di-Pertuan Agong shall first appoint as Perdana Menteri (Prime Minister) to preside over the Cabinet a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House; and (b) he shall on the advice of the Prime Minister appoint other Menteri (Ministers) from among the members of either House of Parliament;

ARTICLE 44 : CONSTITUTION OF PARLIAMENT

The

legislative authority of the Federation shall be vested in a Parliament, which shall consist of the Yang di-Pertuan Agong and two Majlis (Houses of Parliament) to be known as the Dewan Negara (Senate) and the Dewan Rakyat (House of Representatives).

ARTICLE 73 : EXTENT OF FEDERAL

AND STATE LAW

In exercising the legislative powers conferred on it by this Constitution

(a) Parliament may make laws for the whole or any part of the Federation and laws having effect outside as well as within the Federation;

(b) the Legislature of a State may make laws for the whole or any part of that State.

ARTICLE 159 : AMENDMENT OF THE CONSTITUTION

(3) A Bill for making any amendment to the Constitution shall not be passed in either House of Parliament unless it has been supported on Second and Third Readings by the votes of not less than two-thirds of the total number of members of that House. (4) (bb) subject to Article 161E any amendment made for or in connection with the admission of any State to the Federation or its association with the States thereof, or any modification made as to the application of this Constitution to a State previously so admitted or associated, (Amendments relating to Sabah and Sarawak). (5) A law making an amendment to the provisions of Part III, shall not be passed without the consent of the Conference of Rulers.

STATE CONSTITUTIONS
Each

State possesses its own constitution. General provisions in the State Constitutions are enumerated in the Eighth Schedule of the Federal Constitution and include matters concerning the Ruler, the Executive Council, the Legislature, the Legislative Assembly, financial provisions, State employees, and amendment to the Constitution.
According

to Article 71 of the Federal Constitution, if such essential provisions are missing, or if any provision is inconsistent with them, Parliament may make provision to give effect to them or to remove any inconsistencies, as the case may be.

LEGISLATION
Legislation

is a law enacted by a body constituted for this purpose. Laws are basically legislated by Parliament at federal level and by the various State Legislative Assemblies at state level. Laws that are enacted by Parliament after 1946 but before Malaysias Independence in 1957 called Ordinances. Laws those made after 1957 called Acts. Laws made by the State Legislative Assemblies (except in Sarawak) are called Enactments. Laws in Sarawak are called Ordinances.

CONT
Under

Article 150 (1) of the Federal Constitution, the Yang di-Pertuan Agong YDPA is empowered to proclaim a state of emergency if he is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect. types of law will be called ordinances.

These

ARTICLE 74 : SUBJECT MATTER OF FEDERAL AND STATE LAWS

(1)

Without prejudice to any power to make laws conferred on it by any other Article, Parliament may make laws with respect to any of the matters enumerated in the Federal List or the Concurrent List (that is to say, the First or Third List set out in the Ninth Schedule). Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List.

(2)

NINTH SCHEDULE - LEGISLATIVE LISTS

List

I - Federal List

List

I of the Ninth Schedule enumerates the Federal Parliaments legislative power.

1. External affairs, 2. Defense of the Federation or any part thereof, 3. Internal security, 4. Civil and criminal law and procedure and the administration of justice, 5. Federal citizenship and naturalization; aliens.

CONT
6. The machinery of government, 7. Finance 8. Trade, commerce and industry, 9. Shipping, navigation and fisheries, 10. Communications and transport, 11. Federal works and power, 12. Surveys, inquiries and research, 13. Education,

CONT
14. Medicine and health, 15. Labour and social security, 16. Welfare of the aborigines, 17. Professional occupations, 18. Holidays other than State holidays; standard of time. 19. Unincorporated societies. 20. Control of agricultural pests; protection against such pests; prevention of plant diseases,

CONT
21. Newspaper, publications, publishers, printing and printing presses, 22. Censorship, 23. Theatres; cinemas; cinematograph films; places of public amusement, 24. Federal housing and improvement trusts, 25. Co-operative societies, 26. Prevention and extinguishment of fire, 27. All matters relating to the Federal Territory.

LIST II - STATE LIST

List II of the Ninth Schedule enumerates State legislative authorities legislative power.

1. Except with respect to the Federal Territories of Putrajaya, Kuala Lumpur and Labuan, Islamic law and personal and family law of persons professing the religion of Islam, 2. Except with respect to the Federal Territories of Putrajaya, Kuala Lumpur and Labuan, land matters 3. Except with respect to the Federal Territories of Putrajaya, Kuala Lumpur and Labuan, agriculture and forestry, 4. Local government outside the Federal Territories of Putrajaya, Kuala Lumpur and Labuan,

CONT
5. Except with respect to the Federal Territories of

Putrajaya, Kuala Lumpur and Labuan, other services of a local character, 6. State works and water, 7. Machinery of the State Government, 8. State holidays, 9. Creation of offences in respect of any of the matters included in the State List or dealt with by State law, 10. Inquiries for State purposes, 11. Indemnity in respect of any of the matters in the State List or dealt with by State law. 12. Turtles and fishing.

LIST IIA - SUPPLEMENT TO STATE LIST FOR STATE OF SABAH AND SARAWAK
13. Native law and custom, 14. Incorporation of authorities and other bodies set up by State law, 15. Ports and harbours, 16. Cadastral land surveys, 17. Libraries, museums, ancient and historical monuments and records and archaeological sites and remains, other than those declared to be federal by or under federal law. 18. In Sabah, the Sabah Railway.

LIST III - CONCURRENT LIST

List III of the Ninth Schedule enumerates both Federal Parliament and State legislative authorities concurrent legislative power.

1. Social welfare, 2. Scholarships, 3. Protection of wild animals and wild birds and National Parks, 4. Animal husbandry, prevention of cruelty to animals, veterinary services, animal quarantine,

CONT
5. Town and country planning except in the federal capital, 6. Vagrancy and itinerant hawkers. 7. Public health and prevention of diseases, 8. Drainage and irrigation, 9. Rehabilitation of mining land and land which has suffered soil erosion, 9A. Fire safety measures and fire precautions in the construction and maintenance of building,

LIST IIIA - SUPPLEMENT TO CONCURRENT LIST FOR STATE OF SABAH AND SARAWAK
10.

Personal law relating to marriage, divorce, guardianship, maintenance, adoption, legitimacy, family law, gifts or succession testate and intestate, 11. Adulteration of foodstuffs and other goods, 12. Shipping under fifteen registered tons, including the carriage of passengers and goods by such shipping, fishing and fisheries, 13. The production, distribution and supply of water power and of electricity generated by water power,

CONT
14. Agricultural and forestry research, control of agricultural pests, and protection against such pests, prevention of plant diseases. 15. Charities and charitable trusts and institutions in the State, 16. Theatres; cinemas; cinematograph films; places of public amusements, 17. Elections to the State Assembly held during the period of indirect elections, 18. In Sabah until the end of the year 1970 (but not in Sarawak), medicine and health.

ARTICLE 75 : INCONSISTENCIES BETWEEN FEDERAL AND STATE LAWS

If

any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void.
any matter not stated in any of these lists falls within the authority of the states. (Residual power)

However,

CONT
Under

Article 161 (1) of the Federal Constitution, Laws have been passed before the independence shall be the existing laws until repealed by the authority having power to do so under this Constitution, continue in force on and after Merdeka Day, with such modifications as may be made therein under this Article and subject to any amendments made by federal or State law. The legislative power of federal and states legislatures are not absolute. They enact laws within the limits prescribed by the Federal and State Constitutions.

SUBSIDIARY LEGISLATION
Subsidiary

legislation is defined under Section 3 of the Interpretation Acts 1967 as:

any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Ordinance, Enactment or other lawful authority and having legislative effect.
Subsidiary

legislation is made by persons or bodies under powers conferred on them by the Acts of Parliament or Enactments of State Assemblies.

DELEGATION OF LEGISLATIVE POWER

Delegation of power to legislate is normally confined to matters of details as the legislature has neither the time nor the technical knowledge to enact laws on every detail. The advantage of subsidiary legislation becomes apparent in the event of a sudden emergency caused by either political, economics or natural calamities when quick measures are required to meet the contingency. The criticism against the delegation of subsidiary legislation is that too much of legislative power is place in the hands of non-elected and faceless civil servants who are not directly not accountable to either Parliament or the people. Nonetheless, if a subsidiary legislation is made in contravention of either a parent Act or the Constitution is void.

CONTROL OF SUBSIDIARY LEGISLATION

Accordingly,

some mechanisms are imposed to control over the enactment of subsidiary legislations as follows:

Consultation; Publicity; Parliamentary control; and Judicial review.

CONSULTATION
Consultation

is made with the interest groups before the legislation is passed although it is informal in most of the cases. It would be unwise for a minister to make regulations without giving opportunity to discuss the proposal to the people who will be affected by that law. Some specific Acts makes the consultation even mandatory and failure to comply may render the regulations void as being procedurally ultra virus.

PUBLICITY
Since

ignorance of law is not an excuse, on the other hand, the publicity to the public is also important. In Malaysia, it is general practice that subsidiary legislation be published in the Gazette and will come into force on the date of publication or such other date as may be specified in the legislation itself. If it is not Gazetted, considered invalid.

PARLIAMENTARY CONTROL
The

parent Act which authorizes the making of subsidiary legislation is enacted by the legislature. Thus, in theory, the legislature can always exercise control over the delegate by repealing the provision of the Act itself. In practice, however, this type of control is seldom exercised because if an attempt is made by the opposition to repeal a parent Act, the government will use its parliamentary majority to quash it.

JUDICIAL REVIEW
The

court also reviews the validity of subsidiary legislation by applying the doctrine of ultra virus. Under this doctrine, any subsidiary legislation may be declared void if it is made in excess of statutory authority conferred by the parent Act, or a particular mandatory procedure prescribed by the patent Act has not been followed, or it is contrary to the Constitution. Thus, a minister or the local authority does not possess unlimited powers.

GAZALI V. PUBLIC PROSECUTOR [1964] MLJ 156

The

Licensing Board, under section 118 (5) of the Road Transport Ordinance 1958, was required to give preference to an application from a Malay. The Board, in approving an application from a Malay went on to attach a condition to the licence that only a Malay driver shall be employed to ply the vehicle. The appellant was charged with breach of a condition attached to his licence which prohibited his taxi from being driven by a person other then a Malay. The Court held that the condition imposed by the Board was ultra vires its powers under the Ordinance.

PORT SWETTENHAM AUTHORITY V. T W WU AND COMPANY (M) SDN BHD [1978] 2 MLJ 137
A

consignment of 93 cases of pharmaceutical goods was shipped on board the vessel Sansei Maru for carriage from Hong Kong to Port Kelang (Port Swettenham) in Malaysia. Upon arrival, all cases were passed into the custody of the Port Authority (the defendants). By 15 April 1970 only 29 of 93 cases could be found. The balance of 64 cases weighing about 5.65 tons had disappeared. The defendants at first contended that the 64 cases had been short-landed and therefore had never been in their custody.

CONT
When

the Court rejected the argument based on the findings proving that all cases were loaded, then, the defendants relied strongly upon a by-law, Section 91(1) of the Port Swettenham Authority ByLaws 1965 which provides that:

The Authority shall not be liable for any loss of goods from any cause unless such loss has been caused solely by the misconduct or negligence of the Authority or its officers or servants.

CONT
The

Port Authority prescribed such by-law in exercise of the powers conferred by Section 29 (1) of the Port Authorities Act 1963 which provides that:

The authority may with the approval of the Minister make by-laws for (g) limiting the liability of the authority in respect of any loss, damage or injury to any person, occurring without the actual fault or privity of the authority (whether in any vessel operated or maintained by them or on any wharf, quay or other part of the port);

CONT
The defendants relied on the by-law mainly for the proposition that if the goods were stolen, they would be exempt from liability because the loss would have been caused partly by the actual thieves and therefore not solely by the fault of the Authority. The Privy Council held that any by-law which purports to limit the Authoritys liability in respect of a loss occurring with the actual fault of the Authority would be ultra vires; and that is precisely what by-law 91(1) does. Yet again, the by-law would also be ultra vires because it does not only limit, it wholly excludes, the defendants liability for the loss of any goods caused by their own misconduct or negligence; and s 29 (1) (g) of the Act of 1963 confers no power to exclude but only to limit liability.

SUB-DELEGATION
Sub-delegation

occurs when a statue vests powers in one authority and this authority transfers or delegates this powers to another.

The

first authority is the delegate of the original power while the second authority is the subdelegate of the first.

M RATNAVALE V. GOVERNMENT OF THE FEDERATION OF MALAYA [1963] MLJ 393

The

Court held that the effect of Section 2 of the Delegation of Powers Ordinance 1952 which authorized the High Commissioner to delegate any of his statutory powers to any other officer by notification in the Gazette.
the absence of such notification in the Gazette, the act of sub-delegation was not complete and, thus, the delegation through a document not published in the Gazette was void.

In

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