MALAYSIAN LEGAL SYSTEM

Lecture 4 :
Sources of Law - 1

FACULTY OF LAW
2017/2018
 Federal Constitution
Written Law
State Constitution
The law that is contained in a formal
document and which has been passed by a
person or body that is authorised to do so Legislation

Subsidiary Legislation

Sources of Law Judicial decisions

Unwritten Law
The law that has not been formally enacted
English Law

Customary Law

Islamic Law
WRITTEN LAW
 i. Federal Constitution
1. The Federal Constitution is the supreme law of
Malaysia
• Article 4 of the FC stipulates that where any
law passed after Merdeka Day which is
inconsistent with the constitution shall be
void, to the extent of its inconsistency
• Article 162(6) of the FC stipulates that any
pre-Merdeka law may be applied with such
modifications as may be necessary to bring it
into accord with the Constitution
• Article 75 of the FC provides that 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.
2. Federal Constitution stipulates the powers of the Federal and State
Governments and provides for a democratic system of government.

3. It also establishes a constitutional monarchy and the protection of

fundamental rights of the individual.

4. To ensure that the Federal Constitution is not easily amended, a

special majority of two-thirds of the total number of members of
the legislature is required for an amendment. (in contrast to
normal laws which can be amended by a simple majority)
5. As Malaysia is a federation with a strong central government at its
core with 13 state governments, the powers are divided between the
federal government and the state governments in accordance with
Part VI of the Federal Constitution.
6. Part IV addresses the issue of relations between the Federation and
the States.
7. According to Article 71 of the FC, the Federation is required to
guarantee the sovereignty of the Malay Sultans / Ruler in their
respective States.
8. Each State, irrespective of whether it has a Sultan as its Ruler, has its
own State constitution.
 ii. State Constitution
• For uniformity, all State constitutions must have a standard set of essential provisions as
enshrined in the 8th Schedule of the FC.
• The provisions are among others:
a) The establishment of a State Legislative Assembly, consisting of the ruler and
democratically elected members, which sits for a maximum of five years.
b) The appointment of an executive branch, called the Executive Council, by the
Ruler from the members of the Assembly. The Ruler appoints as the head of the
Executive Council (the Menteri Besar or Chief Minister) a person whom he
believes is likely to command the confidence of the majority of the Assembly.
The other members of the Executive Council are appointed by the Ruler on the
advice of the Menteri Besar.
c) The creation of a state level constitutional monarchy, as the ruler is a required to
act on the advice of the Executive Council on almost all matters under the State
constitution and law
d) The holding of a state general election upon the dissolution of the assembly.
e) The requirements for amending state constitutions – two-thirds absolute
majority of the members of the Assembly is required.
iii. Legislation
• Legislation is the law enacted by the legislature
(primary legislation), and by bodies and person
authorized by the legislature (delegated/
subsidiary legislation).

• In Malaysia, the power to enact law is vested in:

I. Parliament (Federal Level)
II. State Legislative Assembly (State Level)
• With regard to the legislative power of the Federation and the States,
Article 74(1) provides that Parliament may make laws with respect to
any of the matters enumerated under the Federal List or the
Concurrent List of the Ninth Schedule.

• Article 74(2) further provides that the Legislature of a State may make
laws with respect to any of the matters enumerated in the State List
or the Concurrent List of the Ninth Schedule
FEDERAL LIST STATE LIST
CONCURRENT LIST (State Legislature)
(Parliament)
(Parliament &
State Legislature) Subject matter
Subject matter e.g. Islamic law relating
e.g. armed forces, to succession, testate
criminal, police Subject matter and intestate, betrothal,
investigation, civil and e.g. scholarships, marriage, divorce,
criminal law protection of wild dower, maintenance,
procedure, animals, culture and adoption; State Holidays
citizenship, finance sports, Town and Country Malay reservations land,
Planning *land tenure
• Notwithstanding the division of legislative powers, according to Article
76 of the FC, Parliament may make laws on any matter in the State List
if (only) :

a) for the purpose of implementing any treaty, agreement or

convention between the Federation and any other country,
or any decision of an international organization of which
the Federation is a member

b) for the purpose of promoting uniformity of the laws of two

or more States

c) if so requested by the Legislative Assembly of any State

 Explanation

Acts • Laws enacted by the Parliament after Merdeka Day

• There are 4 types of Acts:
1. the Principal Act, which the most common
2. the Amendment Act, which make changes to the Principal Act
3. the Revised Act, which results from changes (restricted to technical,
grammatical and typographical changes that do not affect the substance
of the law); and
4. the Consolidated Act, which brings together two or more Acts into one.

Ordinances • Laws enacted by the federal legislature between 1 April 1946 - 10 September 1959.
• Laws promulgated by the Yang Di-Pertuan Agong during an emergency proclaimed
under Article 150 of the Federal Constitution are also known as ordinances.
• Similarly, laws passed by State Legislative Assembly of Sabah and Sarawak are also
called ‘Ordinances’

Enactments Enactments are laws enacted by State Legislative Assemblies (except Sabah and
Sarawak)
Legislative Process

• Article 44 of the FC vests the legislative authority of Malaysia in

Parliament comprising of Yang di-Pertuan Agong, Dewan Negara and
Dewan Rakyat.

PARLIAMENT

YDPA DEWAN NEGARA DEWAN RAKYAT

 DEWAN RAKYAT DEWAN NEGARA
222 elected members 70 members
i. 44 Senators appointed by the YDPA
ii. 26 State Senators (2 from each State;
appointed by the State Assemblies)

Represents electoral constituencies Serve the interest of the States, minorities

and sectoral group

members are elected every 5 years and The term of office of a Senator is 3 years
there is no bar to the number of terms and can be renewed only once.
they may serve
 Procedure of enacting legislation

• Proposal
Pre Parliamentary Stage
• Meeting between government
authorities
• Drafting of Bill
• Bill taken to the Parliament

Parliamentary Stage First Reading

(Dewan Rakyat)

Second Reading

Committee Stage

Third Reading

Bill passed by Dewan Rakyat

 Parliamentary Stage Bill passed by Dewan Rakyat is brought to Dewan
(Dewan Negara) Negara

First Reading

Second Reading

Committee Stage

Third Reading

Bill passed by Dewan Negara

Post - parliamentary Stage Royal Assent

Publication
Bill
• A bill is a law in draft; where it becomes law after following certain procedures.
• 3 types of Bill :
1. Public Bill - Introduced by Ministers. Relates to matters of government
policy and having a general application over the entire nations. This is
the most common type of Bill in Malaysia.
2. Private Bill - Initiated by an individual e.g. NGOs, or any private citizen
(people who have no locus in Parliament). They draft the Bill, advertise
a statement of its general nature in the Gazette and in one newspaper
at least a month before introducing the Bill in the parliament through
any member of the parliament
3. Hybrid Bill- Introduced either by Ministers or private individuals.
Prejudicially affects individual rights or interests (affects a certain
group of people in a society)
Pre-Parliamentary stage
• Drafting of the Bill.
• If proposed by the government, the Bill will be drafted by the Drafting
Division, Attorney General’s Chambers.
• Bill is taken to Parliament by the Minister concerned to fix the date
for First Reading.
• Clerk of the House will fix date for First Reading
Parliamentary stage
First Reading
• Minister will read out the short title of the Bill to introduce
the Bill to members of the House.
• The Bill would be circulated for the purpose of giving notice
that the Bill will be debated later during Second Reading.
• The Bill will be gazetted (made known to the public).
• Parliament sets date for Second Reading
Second Reading
• The most crucial stage.
• The Bill will be discussed / debated extensively.
• At the end of the discussion, members will be required to vote in favour
of, or against the Bill.
• Once the required votes are obtained, the Bill shall move to the next
stage

Vote:
 simple 2/3 majority of the members present for Ordinary Bills. If 2/3
majority is not obtained, the Bill is rejected.
 If the bill is proposing to amend the Constitution, 2/3 majority of all
members of both Houses (all members must present) is required
Committee stage
• The Bill is discussed in an informal manner.
• Members of the House become the members of the Committee.
• The House may also appoint an ad hoc committee to discuss the Bill
(usually when it involves technical matters)
• The committee will make amendment as they think fit.
• At the conclusion of the Committee stage, the Bill is reported to the House.
Further amendment may be proposed. The Bill may be re-committed to the
Committee and later re-report to the House
Third Reading
• The final stage before the Bill is deemed passed by that House.
• Usually does not involve much debate.
• Members are invited to vote for or against the Bill once again.
• Once the required votes are obtained, the Bill is considered/deemed
passed by Dewan Rakyat.
• The Bill will be forwarded to the Dewan Negara where a similar
procedure will be followed. The Senate has no power to reject the Bill.
But the Senate may delay sending the Bill back to the Dewan Rakyat
Royal Assent
• The Bill will be presented to the YPDA for Royal Assent by affixing the
public seal.
• Article 66(4) of the FC: “The YDPA shall within thirty days after a Bill is
presented to him assent to the Bill by causing the Public Seal to be affixed
thereto.”
• Article 66 (4A): “If a Bill is not assented to by the YDPA within the time
specified in Clause (4), it shall become law at the expiration of the time
specified in that Clause in the like manner as if he had assented thereto.”
Publication

• Article 66 (5) of the FC provides that every Bill assented to by the

YDPA or as provided in Clause (4a) must be published in Warta Kerajaan
prior to enforcement.
• The Parliament has the power to postpone the operation of the law or
to make laws with retrospective effect.
 iv. Subsidiary legislation

• Also known as Delegated legislation / Subordinate legislation /

Secondary legislation
• Refers to the rules, regulations, by-laws, orders and other instruments
made by a person or body in accordance with the powers delegated to
him/it under an enabling legislation / parent act.
• Such legislation is an increasingly important source of law because
Parliament and the State Legislatures lack the time and expertise to
deal with specific technical details
Section 3 of the Interpretations Act 1948 & 1967
“subsidiary legislation” means any proclamation, rule,
regulation, order, notification, by-law or other
instrument made under any Act, Enactment, Ordinance
or other lawful authority and having legislative effect”
 “There is nothing to prevent Parliament from delegating power to
legislate on minor and administrative matters and for this very reason,
we have in addition to statutes, innumerable subordinate or subsidiary
legislation having the force of law. Without these subordinate or
subsidiary legislation, the Government machinery will not be able to
function effectively”.

-Per HashimYeop Sani J in S Kulasingam v Commissioner of Land,

Federal Territory [1982] 1 MLJ 204
 Parliament

Passed the Parent Act

Enabling Act / Parent Act

e.g. Employment Act 1955

Gives the power / enables minister to

make subsidiary legislation

Minister
(not a legislature but executive)

Makes subsidiary legislation

Subsidiary legislation
e.g. the Employment (Termination and
Lay-Off Benefits) Regulation 1980