s.

The
made by the Assistant Land Administrator
was perfectly lawfut and the
ity had
amount appropriate.

3.8 LEGISLATION
ke the
lease.
The topic wittbe structured as follows:
mitted
:t, the I Definition
rds as I
Parliament
I
Law-making process
I
Subsidiary Legislation
legeri
rngl- 3.8.1 Definition
ise of
rip of
Legisration can be defined as raw
enacted by the registature and any
;ition. bodies
or persons so authorised by the regisrature. rn
Maraysia, the power to enact
rnd F
' laws at federal level is vested in
Parliament and the power to enact
on in state laws
is vested in state Legislative Assembly.
Under the Federal constitution,
was
Legislative rists are provided which
entire what each courd regisrate.
Land

;ition
Laws enacted by Parliament are
called Acts and faws enacted by the
r the state
Legisrative Assembries are cailed
Enactments. Emergency raws promurgated
q. ft.
by the Yang di-Pertuan Agong under
Article 150 of the Federat constitution
ven'
are called Ordinances

3.8.2 Parliament
the
rtely
According to Articre 44(1) parriament
consist of the yang di-pertuan
rtor. Agong
and two Majris (Houses of parriament,
namery Dewan Negara (senate)
ven and
Dewan Rakyat (House of Representatives).
tto
red
There are basically four topics of
Bills:
)ny
ble
(a) Pubric Biils - these are conceming nationar defence,
pubric order and
tad
taxation.
ard
(b) Private Birs - these dears with matters of rocaror private concern.

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 (c) Private Membe/s Bilt- Bills introduced by private members of Parliament.
(d) Hybrid Bill - Bills of public matters that also adversely affect private
bodies or persons.

3.8.3 Law-making Process

A. Pre-parliamentarv Staqe

A Bill may be proposed in many ways. lt may be recommended by the

government or a Royal commission or from institutions or pressure
groups. After a series of discussion and consultations the drafted proposal

will be sent to the Parliamentary Draftsperson in the Attorney-General's

Chambers to be put into legal language and form. The proposal becomes
a "Bill". A government Billgenerally must be approved by the Cabinet.

B. Parliamentary Procedure

The legislative procedure or the law-making process of laws in Parliament

is mentioned in Article 66 - 68 of the Federal Constitution.

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 Pre-parliamentary Stage

:
I Dewan Rakye ,

First Reading

t
Seoond Reading
by the
+
ressure
Comrnittee Stage
roposal
rne:alq +

,"oL' Third Reading

et.
+

Dewan Negara

I
First Reading

l
Second Reading

I
Third Reading

I
Committee Stage

+
Third Reading

I
Royal Assent

J
Publication

Figure 3.4 Legislative process in Parliament

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 Under Article 66(1) the power of Parliament shall be exercised by Bills passed

by both Houses and assented to by the Yang dl-Pertuan Agong.

A Government Bill will be introduced into Parliament by the Minister

responsible for the matter. A bill can begin from the Dewan Rakyat or Dewan
Negara. The Bill goes to 4 stages namely First Reading, Second Reading,
Committee Stage and Third Reading (see Figure 3.4).

First Readinq

At this stage the Minister merely presents the Bill, whereby the titte will be
read out by the cJerk of the Dewan.

Second.Reading

The Bilt must be printed and circulated. The Minister will present an outline of
principle of the Bill. The House will debate on the principtes. The Bill will have
to be voted upon to proceed to the committee stage.

Committee Staqe

The House will generally resolve into a committee to discuss the details of the
Bill, in a less formal manner. The order of discussion however is fixed i.e.
clauses in the order they appear, schedules and preambles, if any.
Amendments can.be proposed. At the end of the session, the Minister moves
a motion to report the Bill to the Dewan. lf the motion is accepted the Dewan
.resumes sitting.

Third Readinq

The Bill is review again. Debates will centred on general principles

substantive amendments are no longer allowed except with permission of the
speaker to correct errors or oversights. A vote is taken and if passed he Bill is
sent to Dewan Negara.

r
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 Dewan Neoara
passed

The Bill goes through the same stages and if there are amendments made to
the Bill, the Billwilt be returned to the Dewan Rakyat.
Minister
Dewan Any disagreement between the two Dewans will be resolved by the Joint
eading, Committee of both Dewan. The Dewan Negara has no power to vote, reject
or insists on its amendments to a Bill passed by Dewan Rakyat. Dewan

Negara may merely delay the passage of a Bill - and twelve months if it is a
non-Money Bill.

will be Roval Assent

When the Bill is passed by both Dewan, it is presented to the Yang di-Pertuan
Agong for his assent. Under Articte 66(4), the Yang di-Pertuan Agong shall
within thirty days assent the Bitl by causing the Public Seal to be affixed
line of thereto.
I have

lf the Bitl is not assented within the time specified, it shall become law in the
like manner as if he had assented thereto.

Publication
lf the
J i.l Article 66(5) provides a Bill become law on being assented to by the Yang di-
any. Pertuan Agong but no law shall come into force until it has been published.
OVES Publication is done in the Warta Kerajaan Malaysia (Federal Gazette). An Act
rwan comes into force on a prescribed date and if no date is prescribed, the date
following the date of its publication. The Malay Text is the authoritative text
unless otheruvise prescribed.

ln summary, legislations are widely acceptable as a source of law, because it

cles is published and an easy from of reference..Amendments of legislation are
the done by the specified tegislative body and in accordance to the amendment
ill is procedure. Laws are generally amended if its obsolete, or to fulfil the need of
the society.

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3.8.4 Subsidiary Legislation

Subsidiary legislation is defined in the lnterpretation Act, 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".

This type of legislation is becoming increasingly important as the business of

government gets more complicated and extensive. Further, modern
governments are multi-functional and modern legislatures work under severe
limitations. The legislature dos not have time to discuss details of the law; it
confine itself to broad principles in the law and policies underlying the bills.
Parliament and the State Assemblies may confer or delegate some of their
legislative powers to administrative authorities or bodies, usually yang di-
Pertuan Agong, a Minister or a local authority such as a Town Board.

For instance, the lnsurance Act, 1963 (Revised 1972) enacted by Parliament
and under Section 45 of the Act, power in conferred on ihe Minister to make
regulation for carrying into effect the objects of this Act, and for prescribing
anything which under this Act is to be prescribed. Under Section 107(1 ) of the
Private Healthcare Facilities and Services Act 1998, the Minister may make
such regulations as appears to him necessary or expedient for carrying out
the provision of this Act.

Other reasons why the legislature had to delegate its law-making power are
as following:

(1) The legislative has insufficient time to enact allthe details in every aspect,
as required in a modern society;and
(2) Such modern legislation at times is highly technical and is the best Ieft to
experts or administrators on the job who are well versed with the
iechnicalities involved.
(3) Cunent needs of legislation to overcome unforeseen contingencies or
emergency situation.

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t-
One of the important advantages of subsidiary legistation is its flexibility in
circumstances which demand this flexibility such as currency control, import
duties and etc. [n such situations it may be essential for a Minister or the
relevant authority to act quickly but with the same authenticity as the
r other Legislature. A ministerial regulation can be easily rescinded by him if it
lawful becomes impractical oroutdated. This power originally conferred by Section
23 of the lnterpretation and General Clauses Ordinance 1948 is provided for
in the Eleventh Schedule of the Federal Constitution. lt states:
ess of
odern "Where an Ordinance or Enactment confers power on any authority to
evere make subsidiary legislation, such subsidiary legislation may at any
aw; it time be amended, varied, rescinded or revoked by the same authority
bihr, and in the same manner by and in which it was made, or if that person
their or authority has been unlawfully replaced by another person or
rg di- authority, by that other person or authority."

Controls over Subsidiary Leoislation

ment
nake There [s need to protect the public from abuse of the apptication of subsidiary
ibing legislation by the administrative authorities for example, Iack of prior
f the discussions, consultation and excessive of the power delegated necessitates
rake controls over subsidiary legislation.
out

The main controls are as below:

are (a) Judicial Control

The courts have control over subsidiary legislation through judiciat review.
ect, The court by the application of the doctrine of ultra vires may declare any
regulation as void if made in excess of statutory authority conferred by the
tto parent Act or did not follow a particular procedure prescribed by the
the parent Act or if it is substantively contrary to the Constitution.

or ln Ghazali v. Public Prosecutor (1964) MLJ 156, where under Section

118(5) of the Road Traffic Ordinance 1958, the Licensing Board attached
a condition to the licences issued to Malays that only a Malay driver

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 should be employed to drive such a vehicle. The High Court held that the
Board acted ultra vires in imposing the said condition as it had no power
to do so. The authority of the Minister was limited to issuing directives on
policy to be followed in determining applications, not matters arising
thereafter. After giving preference to a Malay for issue of a licence, the
Board's power is exhausted. The court held "no rule, regulation or by-law
made under statutory powers must go beyond or repugnant to the
enactment under which they are made."

ln City Council of George Town v. Government of Penang (1907) 1

MLJ 169, the petitioners applied to the Federal Court for a declaration
that the city council of George Town (Transfer of Functions) order 1966
were void by virtue of Article 75 of the Constitution of Malaysia on the
ground that they were inconsistent with the Local Government Election
Act 1960 (Act lll1960) of the Federation. An application was made by the
respondents to dismiss the petition on ground that the Federal court has
no jurisdiction in the matter. lt was held that Article 128(1)(a) of the
Federal constitution gave the Federal court exclusive jurisdiction to
determine "any question whether a law made by Partiament or the
Legislature of a state is invalid on the ground that it makes provision with
respect to a matter with respect to which Parliament or as the case may
be the legislature of a state has no power to make laws. Since a state law
is invalidated to the extent of any inconsistency there with a Federal law
by Article 75, not withstanding ever that the state law may be within the
competency of he State Legislature, an order will be made to invatidate
the inconsistent state enactments.

In The Gheng Peh v. Public Prosecuter (1979) 1 MLJ 51, the accused
was charged under the [ntemal Security Act 1960 and was tried under the
Essential (Security Cases) (Amendment) Regulations 1975. The Federal
Court found him guilty and sentenced him to death. The accused
appealed on three grounds:

o the validity of the Essential (Security Cases) (Amendment)

Regulations 1975
r the validity of the declaration of Emergenqy on May lSth 1969
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 lat the . the decision of the Attorney-General to change him under the lnternal
power
Security Act 1960.
/es on

rrising The Privy council held that the appellant was correctly charged but the
e, the regulations under which he was tried vires the Federal Constitution and
ly-law therefore his trial was a nullity. The conviction and sentence were set
o the aside and the case was remitted to the Federal Court for consideration as
to whether a new trial be ordered.

671 1
The Federal court ordered a retrial and. further hetd that though the
ration
regulations were ultra vires, it is open to Parliament to validate them with
1 966 retrospective effect; by virtue of the Emergency (Essential powers) Act
n th=' 1979 (Act 216) the Essential (Security Cases) Regulations were validated
rction
and enforced.
y the
t has ln Major Phang Yat Foo v. Brigadier Generat Dato'yahya bin yusof
f the (1990) 1 MLJ 252, the respondent, the convening authority of a court-
nto martial, purporting to act under r.63(3) of the Armed Forces (Court-
the Martial) Rules 1970, disapprove_d of and dissolved, the decision of the
with court-martial and made an order for a fresh court-martial to be convened
may and for the application to be retried on the same charges. ln an
r law application by the application for an order or certiorari to quash the
law respondent's decision and an order prohibiting the respondent from thus
r thr proceeding, the High court ruled that r. 63(3) was void to the extend that
date it confers jurisdiction on the convening authority to approve or disapprove
a decision of a court-martial contrary to Section 119 of the Armed Forces
Acl 1972 (Act 77). That section authorizes the Minister of Defence to
rsed
make only rules of procedure relating to investigation and trial of offences
the by court martial.
eral

sed (b) Consultation

ln Malaysia there is no general statutory provision in making prior

:nt) consultation a formal requirement for the making of subsidiary legislation.
However, enabling Acts may make prior consultation mandatory, for
example Section 36(1) or the Financial Procedure Act 1957 (Act 61)

I ss
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 (Revised 1972) which empowers the Yang di-Pertuan Agong to make
regulations after consulting the Commodity Trading Commission.

(c) Publication

Similarly, there is no general statutory provision requiring the publication

subsidiary legislation in Malaysia. Particular enabling statutes may require
publication mandatory and non-compliance would render the subsidiary
legislation void. Under section 19(1) of the lnterpretation Acts 1948 and
1967, subsidiary legislation commences on the date prescribed, or where
no date is prescribed, the date immediately following the date of its
publication in the Gazette Supplemenf. Under section 1g(2), the
subsidiary legislation 'shall come into operation immediately on the
expiration of the day preceding (its) commencement'.

(d) Legislative Control - Lavinq Procedures

Law-making is generally the function of the legislature. lf the legistature

has delegate part of its legislative powers to the executive, it has a duty to
ensure that the power is properly conducted by its agent. The main
measures taken are to ascertain a system of supervision over subsidiary
legislation. The main ways are imposing laying procedures.

The legislature may require that the legislation be laid before the House in
draft form so that the House know what the executive proposes to do.
There are three taying procedures used in Malaysia

(i) A simple laying formula states:

"any rules made under this section shall be laid before each
House of Parliament"

Another variation of such formula is in Section 36(2) of the Financial

Procedure Act 1957 which states:

100 Malaysian Legal System

l make "Regulations made under this section shall when made have full

force and effect and shal[ be ]aid before the Dewan Rakyat as
soon as possible after they are made"

These examples of laying procedure are informational in nature and is

Iication only directory and failure to lay the regulations before Parliament does
require not affect their Parliament does not affect their validity, though it
rsidiary amount to a technical breach of the statute.
18 and
where (ii) The second form of laying procedure rgquires a negative resolution,
of its for example, Section 19(3) of the Control of lmported Publications Act
), the 1958 states:
)Il 'tnd
"All regulation made by the Minister under this section shall be
published in the gazette and, as soon as possible, thereafter,.shall
be laid before the Dewan Rakyat, and if at the next meeting of the
Dewan Rakyat after the Regulations are so laid the Dewan Rakyat
slature passes a resolution annulling the regulations or any part thereof,
Juty to the whole or part, as the case may be, of the regulations shall be
r ffiain void, but without prejudice to the validity of anything previously
sidiary done there under or to the making of any new regulations, as from
the date of notification in the gazette of the passing of the
resolution."
,US{

to do. The laying procedure is subject to annulment or a negative vote on the

floor of the House. The regulations are effective as soon as made and
must be laid before the House. When the resolutlon is passed, the
disapproved portion automatically become void. The Minister can
make fresh regulations. The void regulations did not affect the validity
each of anything done previously under the regulations in question.

The "annualment" procedure in Dewan Rakyat is very important move

ancial of the parliamentary supervision over regulation-making power of the
executive. The House has a right to annual the regulations mace,.

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D
IGIFE-::rf;{f,_+aE.-

(iii ) "Aff irmatlve resolution" layin g procedu re

Section46(2) of the Exchange Control Act 1953 states: To ass

books:
"All such regulations shall be iaid before the Dewan Rakyat as
soon as practicable after they are made but shall not continue in
force thereafter unless approved by resolution of the Dewan".

The House must study the regulations before approving the laid. The
House has authority to modify the regulation the time period to Iay the
order before the House is fixed and the regulation cases to be effective
unless ii is confirmed by the House. Under this procedure, it is the
obligation of the govemment to bring forward a resolution to confirm the
regulations. The government must find time to discuss the regulatlons in
the House, if not passed the regulations automatically came to an end.

CHECKLIST

At this point you should be able to:

Identifo unwritten and written sources of law

Analyse the importance and the application of each source of law.

EXERCISE

(a) English Law plays an important part in our ldgat system. Explain to what extent
English law is applied in our country. l

(b) Elaborate on customary law as an important of law in Sabah and Sarawak-

(c) Discuss the apptication of lslamic law [n
(d) The Federal Constitution is an important source law. Discuss.
(e) Judicial decision made by the superior courts binding upon the lower courts.
Elaborate how the doctrine of stare decisis is appli in Malaysia.

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