5. Written Law

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SOURCES

OFMALAYSIAN LAW

WRITTEN LAW


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WRITTEN LAW

Written law in Malaysia comprises of:

1) The Federal Constitution

2) State Constitutions

3) Legislation

4) Subsidiary legislation


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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 StateGovernments.

It also enshrines the basic or fundamental rights ofthe individual.


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CONT

The Constitution is divided into 15 Parts and 13Schedules. Currently, there are 230 articles in the15 parts, including those that have been repealed.

Part I - The States, Religion and Law of theFederation

Part II - Fundamental Liberties

Part III - Citizenship

Part IV - The Federation

Part V - The States


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Part VI - Relations Between the Federation and theStates

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 CrimesPrejudicial to the Public and Emergency Powers


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Part XII - General and Miscellaneous

Part XIIA - Additional Protections for States ofSabah and Sarawak

Part XIII - Temporary and Transitional Provisions

Part XIV - Saving for Rulers' Sovereignty, Etc.

Part XV - Proceedings Against the Yang di-

Pertuan Agong and the Rulers.


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CONT

The following is a list of the schedules to theConstitution.

First Schedule - Oath of Applicants for Registration or

Naturalisation

Second Schedule - Citizenship by operation of law ofpersons born before, on and after Malaysia Day

and supplementary provisions on citizenshipThird Schedule - Election and removal of the Yang di-

Pertuan Agong and his deputy


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Fourth Schedule - Oaths of Office of the Yang di-Pertuan Agong and his deputy

Fifth Schedule - The Conference of Rulers

Sixth Schedule - Forms of Oaths and AffirmationsSeventh Schedule - Election and Retirement of

Senators

Eighth Schedule - Provisions to be inserted in StateConstitutions


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Ninth Schedule - Legislative Lists

Tenth Schedule - Grants and Sources of Revenueassigned to States

Eleventh Schedule - Provisions of the Interpretation

and General Clauses Ordinance, 1948 (MalayanUnion Ordinance No. 7 of 1948), applied forinterpretation of the Constitution

Twelfth Schedule - (Repealed)

Thirteenth Schedule - Provisions relating todelimitation of Constituencies


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ARTICLE 1 : THE FEDERATIONAND 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 theFederal Territory of Kuala Lumpur established under theConstitution (Amendment) (No. 2) Act 1973 [Act A206] andthe Federal Territory of Putrajaya established under theConstitution (Amendment) Act 2001 [Act A1095] and theterritory of the State of Sabah shall exclude the FederalTerritory of Labuan established under the Constitution(Amendment) (No. 2) Act 1984 [Act A585], and all suchFederal Territories shall be territories of the Federation.


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ARTICLE 3 : RELIGIONOFTHE FEDERATION

(1) Islam is the religion of the Federation; but other religionsmay be practiced in peace and harmony in any part of theFederation.

(2) In every State other than States not having a Ruler theposition of the Ruler as the Head of the religion of Islam in hisState in the manner and to the extent acknowledged anddeclared by the Constitution of that State,

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


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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 inconsistentwith this Constitution shall, to the extent of theinconsistency, be void.

Article 5 : Liberty of the person

(1) No person shall be deprived of his life or personal libertysave in accordance with law.

Article 6 : Slavery and forced labour prohibited

(1) No person shall be held in slavery.


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ARTICLE 32 : SUPREME HEADOFTHE FEDERATION, ANDHIS

CONSORT

(1) There shall be a Supreme Head of the Federation, to be

called the Yang di-Pertuan Agong, who shall take precedenceover all persons in the Federation and shall not be liable to anyproceedings whatsoever in any court except in the SpecialCourt established under Part XV.

(2) The Consort of the Yang di-Pertuan Agong (to be called theRaja Permaisuri Agong) shall take precedence next after theYang 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 anytime resign his office by writing under his hand addressed to theConference of Rulers or be removed from office by theConference of Rulers,....


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ARTICLE 40 : YANGDI-PERTUAN AGONGTOACTONADVICE

(1) In the exercise of his functions under thisConstitution or federal law the Yang di-PertuanAgong shall act in accordance with the advice of theCabinet or of a Minister acting under the generalauthority of the Cabinet,...


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ARTICLE 43 : CABINET

(1) The Yang di-Pertuan Agong shall appoint a Jemaah Menteri

(Cabinet of Ministers) to advise him in the exercise of hisfunctions.

(2) The Cabinet shall be appointed as follows, that is to say:

(a) the Yang di-Pertuan Agong shall first appoint as PerdanaMenteri (Prime Minister) to preside over the Cabinet a memberof the House of Representatives who in his judgment is likelyto 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 Houseof Parliament;


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ARTICLE 44 : CONSTITUTIONOF PARLIAMENT

The legislative authority of the Federation shall bevested in a Parliament, which shall consist of theYang di-Pertuan Agong and two Majlis (Houses of

Parliament) to be known as the Dewan Negara(Senate) and the Dewan Rakyat (House ofRepresentatives).


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ARTICLE 73 : EXTENTOFFEDERALAND

STATELAW

In exercising the legislative powers conferred on it by thisConstitution

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

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


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ARTICLE 159 : AMENDMENTOFTHE CONSTITUTION

(3) A Bill for making any amendment to the Constitution shall not

be passed in either House of Parliament unless it has beensupported on Second and Third Readings by the votes of notless than two-thirds of the total number of members of thatHouse.

(4) (bb) subject to Article 161E any amendment made for or inconnection with the admission of any State to the Federation orits association with the States thereof, or any modification madeas to the application of this Constitution to a State previously soadmitted 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 ofRulers.


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STATE CONSTITUTIONS

Each State possesses its own constitution.

General provisions in the State Constitutions areenumerated in the Eighth Schedule of the FederalConstitution and include matters concerning the Ruler,the Executive Council, the Legislature, the Legislative

Assembly, financial provisions, State employees, andamendment to the Constitution.

According to Article 71 of the Federal Constitution, ifsuch essential provisions are missing, or if any provisionis inconsistent with them, Parliament may makeprovision to give effect to them or to remove any

inconsistencies, as the case may be.


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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 Assembliesat state level.

Laws that are enacted by Parliament after 1946 butbefore 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.


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Under Article 150 (1) of the Federal Constitution,the Yang di-Pertuan Agong YDPA is empowered toproclaim a state of emergency if he is satisfiedthat a grave emergency exists whereby the

security, or the economic life, or public order in theFederation or any part thereof is threatened, hemay issue a Proclamation of Emergency makingtherein a declaration to that effect.

These types of law will be called ordinances.


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ARTICLE 74 : SUBJECTMATTEROFFEDERALANDSTATELAWS

(1) Without prejudice to any power to make lawsconferred on it by any other Article, Parliament maymake laws with respect to any of the mattersenumerated in the Federal List or the Concurrent List

(that is to say, the First or Third List set out in theNinth Schedule).

(2) Without prejudice to any power to make laws

conferred on it by any other Article, the Legislature ofa State may make laws with respect to any of thematters enumerated in the State List (that is to say,the Second List set out in the Ninth Schedule) or the

Concurrent List.


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NINTH SCHEDULE - LEGISLATIVE LISTS

List I - Federal List

List I of the Ninth Schedule enumerates the FederalParliaments 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 theadministration of justice,

5. Federal citizenship and naturalization; aliens.


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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,


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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 againstsuch pests; prevention of plant diseases,


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21. Newspaper, publications, publishers, printing andprinting presses,

22. Censorship,

23. Theatres; cinemas; cinematograph films; placesof 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.


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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,


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5. Except with respect to the Federal Territories of

Putrajaya, Kuala Lumpur and Labuan, other services ofa 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 mattersincluded 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.


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LIST IIA - SUPPLEMENTTO STATE LISTFOR STATEOFSABAHAND SARAWAK

13. Native law and custom,

14. Incorporation of authorities and other bodies setup by State law,

15. Ports and harbours,16. Cadastral land surveys,

17. Libraries, museums, ancient and historical

monuments and records and archaeological sitesand remains, other than those declared to befederal by or under federal law.

18. In Sabah, the Sabah Railway.


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LIST III - CONCURRENT LIST

List III of the Ninth Schedule enumerates both FederalParliament and State legislative authorities concurrent

legislative power.

1. Social welfare,

2. Scholarships,

3. Protection of wild animals and wild birds and NationalParks,

4. Animal husbandry, prevention of cruelty to animals,veterinary services, animal quarantine,


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5. Town and country planning except in the federalcapital,

6. Vagrancy and itinerant hawkers.

7. Public health and prevention of diseases,

8. Drainage and irrigation,

9. Rehabilitation of mining land and land which hassuffered soil erosion,

9A. Fire safety measures and fire precautions in theconstruction and maintenance of building,

L IIIA S C L


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LIST IIIA - SUPPLEMENTTO CONCURRENT LISTFORSTATEOF SABAHAND 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, includingthe carriage of passengers and goods by suchshipping, fishing and fisheries,

13. The production, distribution and supply of waterpower and of electricity generated by water power,


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14. Agricultural and forestry research, control of

agricultural pests, and protection against suchpests, prevention of plant diseases.

15. Charities and charitable trusts and institutions inthe State,

16. Theatres; cinemas; cinematograph films; placesof 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.


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ARTICLE 75 : INCONSISTENCIESBETWEENFEDERALAND STATELAWS

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.

However, any matter not stated in any of these listsfalls within the authority of the states. (Residual

power)

CONT


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Under Article 161 (1) of the Federal Constitution,

Laws have been passed before the independenceshall be the existing laws until repealed by theauthority having power to do so under thisConstitution, continue in force on and after Merdeka

Day, with such modifications as may be madetherein under this Article and subject to anyamendments 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 theFederal and State Constitutions.


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SUBSIDIARY LEGISLATION

Subsidiary legislation is defined under Section 3 ofthe Interpretation Acts 1967 as:

any proclamation, rule, regulation, order, notification,

by-law or other instrument made under anyOrdinance, Enactment or other lawful authority andhaving legislative effect.

Subsidiary legislation is made by persons or bodiesunder powers conferred on them by the Acts ofParliament or Enactments of State Assemblies.

DELEGATION OF LEGISLATIVE POWER


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DELEGATION OF LEGISLATIVE POWER

Delegation of power to legislate is normally confined tomatters of details as the legislature has neither the time northe technical knowledge to enact laws on every detail.

The advantage of subsidiary legislation becomes apparent inthe 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 isthat too much of legislative power is place in the hands ofnon-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.


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CONTROL OF SUBSIDIARYLEGISLATION

Accordingly, some mechanisms are imposed tocontrol over the enactment of subsidiarylegislations as follows:

Consultation;

Publicity;

Parliamentary control; and Judicial review.


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CONSULTATION

Consultation is made with the interest groups beforethe legislation is passed although it is informal inmost of the cases.

It would be unwise for a minister to make

regulations without giving opportunity to discuss theproposal to the people who will be affected by thatlaw.

Some specific Acts makes the consultation evenmandatory and failure to comply may render theregulations void as being procedurally ultra virus.


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PUBLICITY

Since ignorance of law is not an excuse, on theother hand, the publicity to the public is alsoimportant.

In Malaysia, it is general practice that subsidiarylegislation be published in the Gazette and willcome into force on the date of publication or suchother date as may be specified in the legislation

itself. If it is not Gazetted, considered invalid.


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PARLIAMENTARY CONTROL

The parent Act which authorizes the making ofsubsidiary legislation is enacted by the legislature.

Thus, in theory, the legislature can always exercisecontrol 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 governmentwill use its parliamentary majority to quash it.


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JUDICIAL REVIEW

The court also reviews the validity of subsidiarylegislation by applying the doctrine of ultra virus.

Under this doctrine, any subsidiary legislation maybe declared void if it is made in excess of statutory

authority conferred by the parent Act, or a particularmandatory procedure prescribed by the patent Acthas not been followed, or it is contrary to theConstitution.

Thus, a minister or the local authority does notpossess unlimited powers.

G P P [1964] MLJ 156


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GAZALIV. PUBLICPROSECUTOR[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 Malaydriver shall be employed to ply the vehicle.

The appellant was charged with breach of a conditionattached 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 viresits powers under the Ordinance.

PORT SWETTENHAM AUTHORITY V T W WU AND


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PORTSWETTENHAMAUTHORITYV. T W WUAND

COMPANY(M) SDNBHD[1978] 2 MLJ 137

A consignment of 93 cases of pharmaceutical goods wasshipped on board the vessel Sansei Maru for carriagefrom Hong Kong to Port Kelang (Port Swettenham) inMalaysia.

Upon arrival, all cases were passed into the custody ofthe Port Authority (the defendants).

By 15 April 1970 only 29 of 93 cases could be found. Thebalance of 64 cases weighing about 5.65 tons had

disappeared.

The defendants at first contended that the 64 cases hadbeen short-landed and therefore had never been in theircustody.


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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 By-Laws 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 theAuthority or its officers or servants.

CONT


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The Port Authority prescribed such by-law in exercise

of the powers conferred by Section 29 (1) of the PortAuthorities 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 anyloss, damage or injury to any person, occurring without

the actual fault or privity of the authority (whether inany vessel operated or maintained by them or on anywharf, quay or other part of the port);

CONT


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The defendants relied on the by-law mainly for the propositionthat if the goods were stolen, they would be exempt from

liability because the loss would have been caused partly bythe actual thieves and therefore not solely by the fault of theAuthority.

The Privy Council held that any by-law which purports to limit

the Authoritys liability in respect of a loss occurring with theactual fault of the Authority would be ultra vires; and that isprecisely what by-law 91(1) does.

Yet again, the by-law would also be ultra viresbecause it

does not only limit, it wholly excludes, the defendants liabilityfor the loss of any goods caused by their own misconduct ornegligence; and s 29 (1) (g) of the Act of 1963 confers nopower to exclude but only to limit liability.


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SUB-DELEGATION

Sub-delegation occurs when a statue vestspowers in one authority and this authority transfersor delegates this powers to another.

The first authority is the delegate of the originalpower while the second authority is the sub-delegate of the first.


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M RATNAVALEV. GOVERNMENTOFTHEFEDERATIONOF

MALAYA[1963] MLJ 393

The Court held that the effect of Section 2 of theDelegation of Powers Ordinance 1952 whichauthorized the High Commissioner to delegate anyof his statutory powers to any other officer bynotification in the Gazette.

In the absence of such notification in the Gazette,the act of sub-delegation was not complete and,thus, the delegation through a document notpublished in the Gazette was void.


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