Law445 Chapter 4

PREPARED BY:
MUHAMMAD FIKRI BIN OTHMAN

UITM SAMARAHAN II
MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 1
(1) Federal Constitution &
State Constitution
(2) Legislation
(3) Subsidiary Legislation

(a) Federal Constitution
 The Federal Constitution is the supreme
law of the land by virtue of Article 4 of the
Federal Constitution.
 Article 4 states that any laws passed after
Merdeka Day which is inconsistent with
this Constitution shall to the extend of
inconsistency, be void.

 The Federal Constitution enshrines the basic or
the fundamental rights of the individual. These
rights written in the Constitution can only be
changed by a two-thirds majority of the total
number of members of the legislature. This is
in contrast to normal laws which can be
amended by a simple majority.
 Supreme law of the federation; it is the
fundamental law of the land, a kind of ‘higher
law’ which is used as a yardstick with which to
measure the validity of all other laws.

(b) State Constitution
 There are also Constitutions of the States
comprising the Federation, which forms
part of written law in Malaysia.
 The State Constitution contains provisions

which are enumerated in the 9th Schedule
to the Federal Constitution. Some of these
provisions include matters concerning the
Ruler, the Executive Council, the
Legislature, etc.

 The supremacy of the Federal Constitution is set
out in Articles 4(1) and 162(6) and section 73 of
the Malaysia Act 1963.
 Article 4 states that;
 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 4(1) refers only to laws made after
Merdeka Day.
 Laws made before Merdeka Day are dealt with in
Article 162.
 Article 162(6) – pre-Merdeka laws shall be
applied by a court or tribunal with such
modifications as may be necessary to make
them accord with the FC.
 Therefore, under Article 4(1) any post-Merdeka
law which is inconsistent with the FC shall be
declared void to the extent of the inconsistency
 Article 162(6) – any pre-Merdeka law which is
inconsistent with the FC shall be continued
with the necessary modifications to render it
consistent with the FC.

 Section 73 of the Malaysia Act 1963 (as
affected by Article 159A of the FC) refers to
pre-Malaysia laws in force on 16 September
1963 in a state which joins Malaysia on that
date.
 The section saves from automatic repeal all
pre-Malaysia laws enacted by the state
legislature, including those whose subject
matter became a federal matter on that date.
 Such laws shall continue to apply only within
the state concerned.

 Supremacy of the Constitution is maintained
by giving to the courts the right to review
legislative and executive acts.
 When a legislative or executive violates the
constitutions, the court may declare it ultra
vires and void.
 Legislation may be invalidated on one of the
following grounds;
 It relates to matter concerning which the relevant
legislature has no power to make law;
 It has not been enacted in accordance with the
procedure prescribed in the constitution; or

 It is inconsistent with any provision of the
constitution; or
 In the case of state law, it is inconsistent
with federal law.
 Constitutional supremacy purports to
apply in Malaysia.

 Yang diPertuan Agong(YDPA) - Art 32-37
 Supreme Head of the Federation who is elected
by the Conference of Rulers
 5 years
 May resign at any time by writing to the
Conference of Rulers
 If YDPA is charged with offence under Special
Court – cease to exercise the function of YDPA.
 Timbalan YDPA- elected by the Conference of
Rulers and exercise the function and have
privileges of the YDPA during vacancy and
YDPA unable to exercise his function.

 Any action by or against the YDPA or Ruler of a
State in his personal capacity shall be brought in a
Special Court under Part XV of the Federal
Constitution
 Shall not absent from the Federation more than 15
days except on State visit to another country.
 Supreme Commander of the Armed Forces of the
Federation.
 Has power to grant pardons, reprieves and
respites for all offences tried by court-martial
and all offences committed in the Federal
Territories of Kuala Lumpur and Labuan.

 Conference of Rulers – Art 38
 Consists of Their Royal Highness of Rulers and
the YDP Negeri of States not having a Ruler.
 Functions – elect the YDPA and Timbalan
YDPA
 Appoint member of the Special Court
 Agree or disagree to the extension of any
religious acts, observances or ceremonies to
the Federation.
 Deliberate on questions of national policy and
other matter that it thinks fit.
 Executive and Cabinet – Art 39-43C
 Executive – vested in the YDPA and
exercisable by him or Cabinet or any Minister
authorised by the Cabinet.
 YDPA shall act in accordance with the advice
of the Cabinet or a Minister acting under the
General authority of the Cabinet.
 Discretion of YDPA;
 Appointment of the Prime Minister
 Withhold consent to a request to dissolve
Parliament
 Request a meeting of Conference of Rulers
 YDPA shall appoint the Cabinet of
Ministers to advice him
 On advice of PM, YDPA shall appoint other
Ministers from among members of either
House of Parliament.
 Cabinet – responsible to Parliament if the
PM ceases to command the confidence of
the majority of the members of the House of
Representatives.
 Appointment of any Minister may be
revoked by the YDPA on the advice of PM.

 Parliament
 Federal Legislature- consists of the YDPA and
2 Houses which are House of Representatives
(Dewan Rakyat) and Senate (Dewan Negara).
YDPA
Dewan Negara
PARLIAMENT
(Senate)
House of
Parliament Dewan Rakyat
(House of
Representative)

 House of Representatives consists of 222
elected members
 Who are they?
 House of Representatives must not less
than 21 years old.
 To pass the proposed law via 3 readings
(present, debate & vote). Once the bill is
passed, the bill will be sent to Dewan Negara.

 Senate consists of elected and appointed i.e 2
members elected from each state, 2 members for
the Federal Territory of KL and Labuan, appointed
by YDPA and 40 members appointed by YDPA.
 The terms of office of Senators – 3 years and shall
not affected by a dissolution of Parliament.
 A member of the Senate shall not hold office for
more than 2 terms either continuously or
otherwise.
 Parliament may increase or decrease the number
of member of Senate.
 Member of Senate must not be less than 30 years
old.
 Provided in Article 5 – 13 of the FC.
 Article 5(1) provides;
“No person shall be deprived of his life or personal
liberty save accordance to law.”
 Case: Aminah v Superintendent of Prison,
Pengkalan Chepa, Kelantan (1968) 1
MLJ 92;
› When a person arrested he must informed as soon
as may be of the grounds of his arrest and shall be
allowed to consult and be defended by a legal
practitioner of his choice.

 Case : Ooi Ah Phua v Officer-in-charge,
Criminal Investigation, Kedah/Perlis (1975)
2 MLJ 198;
› Appellant applied for habeas corpus and alleged that
the right to consult and be defended by counsel
commenced immediately after arrested.
› High court dismissed.
› Federal Court dismissed the appeal
› Held: the right of an arrested person to consult his
lawyer begins from the moment of arrest but cannot be
exercised immediately.
› A balance has to struck between the right of the
arrested person and the duty of the police to protect the
public from the wrongdoers.

 Case : Saul Hamid v Public Prosecutor
(1987) 2 MLJ 736.
 Mohamed bin Abdullah v Public Prosecutor
(1980) 2 MLJ 201; absence of the counsel did not
vitiate the trial.
 Article 7 provides protection against retrospective
criminal law and repeated trials.
 No person shall be punished for an act or omission
which was not punishable by law when it was done or
made and no person shall suffer greater punishment
for an offence than was prescribed by law at the time
it was committed.

 Case : Loh Kooi Choon v Government of
Malaysia (1977) 2 MLJ 187
 Public Prosecutor v Mohd Ismail (1984) 2
MLJ 219.
 Article 8(1) provides all person are equal
before the law and entitled to the equal
protection of the law.
 No discrimination against citizens on ground
of religion, race, descent or place of birth etc.

 Article 9 provides that no citizen shall be
banished or exclude from the Federation.
 Except for security of the Federation or any part
thereof, public order, public health or the
punishment of offenders.
 Article 10 provides for freedom of speech,
assembly and association.
 Article 11 covers freedom of religion.
 Freedom of religion does not authorise acts
contrary to any general law relating to public
order, health or morality.

 Case : Teoh Eng Huat v Kadhi, Pasir Mas &
Anor (1990) 2 MLJ 300
› Held: a non-Muslim parent or guardian has the right to
decide the choice of various issues affecting an infant's
life until he or she reaches the age of majority (18
yeras).
 Case: Daud bin Mamat v Majlis Agama Islam
(2001) 2 MLJ 390
› Held : the jurisdiction of the Syariah Court.
 Case: Lina Joy v Majlis Agama Islam Wilayah
& Anor (2004) 2 MLJ 119
› Held: freedom of religion under Article 11(1) is subject
to Article 11(4) and 11(5) because issue of apostasy or
change of religion is directly connected with the rights
and obligations of the person as a Muslim and this is
falls under the jurisdiction of Syariah Court.

 Article 12 – rights in respect of education.
 There shall be no discrimination against any
citizen on the grounds of religion, race or place
of birth.
 Article 12(2) – every religious group has the right
to establish and maintain institutions for the
education of children in its own religion.
 Article 12(3) – no person shall be required to
received instruction in or to take part in any
ceremony or act of worship of a religion other
than his own.

 Article 12(4) – religion of a person under the
age of 18 years shall be decided by his/her
parents or guardian.
 Case: Chang Ah Mee v Jbtn Hal Ehwal
Agama Islam, Majlis Agama Islam, Sabah
and Ors (2003) 5 MLJ 106
 Case: Shamala Sathiayaseelan v Dr
Jeyaganesh C. Mogarajah & Anor (2004)
2 MLJ 648.
 Article 13- rights to property.
› No person shall be deprived of property save in
accordance with law.

 Basically rule of law refers to the fact that
no one is above the law.
 Bracton- “the King himself ought not to be
subject to man but subject to God and the
law, because the law makes him King.”
 In Entick v. Carrington, the term rule of
law was used to show that the executive
cannot act arbitrarily.

 In 1885, Dicey- proposes that rule of law connotes
3 basic concepts:
› Absence of arbitrary powers
› Equality of law
› The rights of an individual must be
determined by law i.e. judicial decisions. The
constitution is judge-made.
 In 1945 – concept of rule of law was applied in
enhancement of human rights.
 1948, 1950 & 1959 – applied in UNDHR,
European Convention of Human Rights &
International Commission of Jurist respectively.

 Rule of law – has been applied to ensure
justice.
 This concept is not just to guarantee
fundamental liberties but to control the
acts of the government so that it will
responsible to its acts.

 The doctrine which originated from
“Montesquieu”
 Montesquieu- the powers of governments are 3
kinds;
› Legislative
› Executive
› Judicial
 Each power should be exercised by a separate
body or organ with no overlapping or co-
ordination.
 A complete separation of powers is not practice in
Malaysia.

 Federal legislative powers are vested in
Parliament
 The Federal executive powers are
vested in the YDPA, the PM and
Cabinet.
 Federal judicial power is vested in the
superior courts.

GOVERNMENT
OF MALAYSIA
EXECUTIVE
LEGISLATIVE JUDICIARY
(YDPA, PM &
(Parliament) (Courts)
Cabinet)

 Article 44 of the FC - legislative authority of
the Federation shall be vested in a
Parliament.
 Function – to enact/pass laws/regulations
YDPA
Dewan Negara
PARLIAMENT
(Senate)
House of
Parliament Dewan Rakyat
(House of
Representative)

 Bills passed by both Houses will be presented to
the YDPA for his assent within 30 days.
 No law however shall come into force until it has
been published/gazzetted.
 Parliament may delegate its legislative power to
ministers or other authorities to make subsidiary
legislation.
 Through delegation of powers, the minister or
executive can be involved in making laws. In
Malaysia, the Executive are also members of
parliament and they exercised both legislative and
executive functions.

 Article 39 – the executive authority of the
Federation shall be vested in the YDPA
and exercisable by him or the Cabinet or
any Minister authorised by the Cabinet,
but Parliament may by law confer
executive functions on other person.
 YDPA in exercising his power shall act in
accordance with the advice of the Cabinet
or of a Minister acting under the general
authority of the Cabinet.

 Functions of the executive – to govern the country
according to law, including the framing
administrative policies regarding all matters of
government e.g. public health, internal security,
housing, education, the welfare of citizens,
supervision of defence, order and justice and
finance.
 Collectively responsible to Parliament during
Parliamentary sessions, they can be called upon by
the opposition to answer the questions regarding
any form of administration or abuse of powers by
any of the ministers.

 Article 122 – Chief Justice of the Federal
Court, the President of Court of Appeal and the
Chief Judges of the High Courts shall be
appointed by the YDPA, acting on advice of the
PM after consulting the Conference of Rulers.
 Judge generally independent.
 Judge will make his judicial decision based on
the evidence produced in courts by the counsel
of both parties.

 The judge will abide by the rules of procedure
and must give grounds for their decisions.
 The judge cannot be sued for making a wrong
decision.
 The unsatisfied party can always appeal to the
court above.
 Generally the grounds of appeal by unsatisfied
parties are;
› Error of law;
› Appeal against the sentence passed.

 The court may punish for contempt of court.
 2 types of contempt of court;
› Civil contempt
› Criminal contempt
 Civil contempt – acts of disobedience of
courts' order or judgments.
 Criminal contempt – contempt done in front
of judge in the vicinity of the court. Eg –
arguing with the judge, using foul language
in court.

 Legislation refers to law enacted by a body
constituted for this purpose. In Malaysia, laws
are legislated by the Parliament at the Federal
level and by various State Legislative
Assemblies at the state level.
 Laws that are enacted by the Parliament after
1946 but before Malaysia’s Independence in
1957 are called Ordinance, but those made
after 1957 are called Acts. On the other hand,
laws made by the State Legislative Assemblies
(except Sarawak) are called Enactments. The
laws in Sarawak are called Ordinances.

 Parliament and State legislature are not supreme.
 They have to enact law subject to the provisions set out in
the Federal and State Constitutions.
 Parliament – enact law as enumerated in List I of the 9th
Schedule. Eg – matters pertaining to internal security,
external affairs, civil and criminal law, finance, trade,
commerce and industry, education
 State – List II of the 9th Schedule. Eg – matters pertaining
to land, local government, Syariah law
 Matters not enumerated in any of the lists are within the
authority of the State.
 Concurrent list – scholarship, drainage, national park

PARLIAMENT STATES LEGISLATIVE
ASSEMBLIES
Enacts law at Federal level Enacts law at State level
Within limits prescribed by Within limits prescribed by
Federal Constitution State Constitution
Law enacted before 31.08.1957 Law enacted by State
are called Ordinance Assemblies are called
Enactment except Sarawak
laws are called Ordinance
Law enacted after 31.08.1957
are called Acts
Parliament can enact laws in State Legislative Assembly
matters listed in list I of the can enact law in matters listed
Nine Schedule in11/7/2018
ListFUU II of the Nine Schedule
MUHAMMAD FIKRI BIN OTHMAN-
44
 There are few steps to be taken before a
Bill could become a law and enforceable

LEGISLATIVE PROCESS IN MALAYSIA
FIRST READING SECOND READING A COMMITTEE OF
The Bill must printed out HOUSE
When a Bill is first
1 and circulated. Members
introduced in one of the two debate the Bill. The Bill will
have to be voted upon to Considers the Bill in
houses, only the title is
proceed to the committee detail and may amend
actually read by the clerk of
any part of it. The
the Dewan. After the Bill is stage.
passed at this stage, the text Committee then submits
is printed and distributed. 2 a report on the Bill to the
house. If the report is
approved, the Bill goes
OTHER HOUSES on to a third reading in
the House.
ROYAL ASSENT When a Bill has been
passed by one House, it is 3
When the Bill has passed both sent to the other house, THIRD READING
Houses in accordance with Art. where it follows a similar The Bill is review again.
68 FC, it is sent to the YDPA for pattern. If the second Debate takes place and
the Royal Assent. YDPA shall house amends the Bill, the amendments may be put to
within 30 days assent the Bill. Bill must be returned to a note. The House then
The Bill then becomes a law the first house for its either passes or defeats the
upon publication. approval. Bill by voting.
5 4
46

 Publication:
 Article 66(5) of the FC- a Bill become law on being
assented to by the YDPA.
 No law shall come into force until it has been
published.
 Publication is done in the Warta Kerajaan (Federal
Gazette).
 Legislation as a source of law:
 It is published and easy form of reference
 Amendments done by the specific legislative body.
 Legislation as a source of law has become more
important than case-law or precedents.
 Increasingly used as a means of repealing,
amending, enacting or codifying the law.
 Interpretation Act 1948 and 1967:
Subsidiary Legislation means any proclamation,
rule, regulation, order, notification or other
instrument made under any Ordinance,
enactment or other lawful authority and having
legislative effect.
 Subsidiary Legislation is very important as
legislation by the Parliament and the State
Legislatures may be insufficient to provide the
laws required to govern everyday matters.
Subsidiary legislation deals with the details
about which legislature has neither the time nor
the technical knowledge to enact laws.
 Legislaturemerely lays down the basic and main
laws, leaving the details to persons or bodies to whom
they delegate their legislative power.
 Such persons or bodies include the YDPA, Ministers
and local authorities.
 Subsidiary legislation made in contravention of either
a parent Act or the Constitution is void.
 Exception- Article 150 on proclamation of emergency .

 Case : Eng Keock Cheng v Public
Prosecutor [1966] 1 MLJ 18
Federal Court held: subsidiary legislation
may still be valid, notwithstanding that it is
inconsistent with the Constitution. Subject to
certain exceptions set out in Article 150,
Parliament has, during an emergency, power
to legislate on any subject and to any effect,
even if inconsistencies with Article of the
Constitution are involved.

 The legislature had to delegate its law-making
power;
› Legislative has insufficient time to enact all
the details in every aspects as required in a
modern society;
› Best to left to the expertise or administrators
who are well versed with the technicalities
involved;
› To overcome unforeseen contingencies or
emergency situation.
 Advantage – its flexibility in circumstances
which demand flexibility, e.g. currency control,
import duties and etc.
 Controls over Subsidiary Legislation
• To protect abuse of the application of subsidiary
legislation by the administrative authority.
• (a) Judicial control:

• Court control over subsidiary legislation through
judicial review.
• 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
parent Act or did not follow a particular procedure
prescribed by the parent Act or if it is
substantively contrary to the Constitution.

 Case: Ghazali v Public Prosecutor (1964) MLJ 156
Held: the Licensing Board acted ultra vires in
imposing the said condition as it had no power to do
so.
 (b) Consultation:
• No general statutory provision in making prior
consultation a formal requirement .
• However, enabling Acts may make prior consultation
mandatory, for example Section 36(1) of the Financial
Procedure Act 1957 that empowers the YDPA to make
regulations after consulting the Commodity Trading
Commission.
 (c) Publication:
• No general statutory provision.
• Enabling statutes may require publication mandatory
and non-compliance would render the subsidiary
legislation void.
 (d) Legislative Control- Laying Procedures:

• If legislature delegate its legislative power to the
executive, it has duty to ensure that the power is
properly conducted.
• Main measures taken are to ascertain a system of
supervision over subsidiary legislation.
• 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.
• laying procedures used in Malaysia:-
(i) Simple laying formula states;
• “any rules made under this section shall be
laid before each House of Parliament”.
• This examples is informational in nature and
is only directory and failure to lay the
regulations before Parliament does not affect
their validity.

(ii) Negative resolution:-
• E.g. Section 19(3) of the Control of Imported
Publications Act 1958.
• Laying procedure 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 resolution is passed, the disapproved
portion automatically become void.
• The Minister can make fresh regulations.
• The void regulations did not affect the validity of
anything done previously under the regulations in
question.
• House has a right to annul the regulations made.
(iii) Affirmative resolution laying procedure:-
• The House must study the regulations before
approving the laid.
• The House has authority to modify the
regulation the time period to lay the order
before the House is fixed and the regulation
cases to be effective unless it is confirmed by
the House.
• Obligation of the government to bring forward
a resolution to confirm the regulations.
• Government must find time to discuss the
regulations in the House, if not passed, the
regulations automatically came to an end.


Law445 Chapter 4

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Law445 Chapter 4

Uploaded by

Copyright:

Available Formats

PREPARED BY:

MUHAMMAD FIKRI BIN OTHMAN

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 2

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 4

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 5

 The State Constitution contains provisions

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 6

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 8

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 9

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 10

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 11

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 12

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 13

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 16

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 17

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 18

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 20

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 21

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 22

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 23

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 24

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 25

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 26

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 27

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 28

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 29

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 30

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 31

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 32

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 33

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 34

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 35

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 36

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 37

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 38

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 39

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 40

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 42

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 43

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 45

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 46

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 50

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 51

• (a) Judicial control:

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 53

 (d) Legislative Control- Laying Procedures:

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 56

MUHAMMAD FIKRI BIN OTHMAN-FUU 11/7/2018 58

You might also like