Sources

Of
Constitutional law
 Sources

Muslim
Law

Unwritte Written
n Law Law

Sources of law=By this expression is understood the authority from which the laws
derive their force.
Generally it can be said Source= where the law get its authority
Written Law
Federal Constitution

State Constitution

Legislation

Subsidiary/Delegated Legislation
 Federal Constitution
• This is the supreme law of the land and any law
passed after the Merdeka Day which is inconsistent
with this Constitution shall, to extent of inconsistency ,
be void.
Article 4(1) of Federal Constitution
• Any court or tribunal applying the provision of any existing law
has not been modified on or after Merdeka Day under this
Article or otherwise may apply it with such modifications as
may be necessary to bring it into accord with provisions of this
constitution
Article 162(6) of Federal Constitution
Federal constitution is regarded as the most
important sources of the written law. Thus that
is why it is placed in the first rank in the
pyramid of written laws hierarchy.
• Constitutional supremacy is maintained by
giving to the superior courts the power and
duty to invalidate any legislative or executive
act that violates any of the 1-183 Articles and
13 schedules.
 The State Constitution
• Each state of the federation possesses its own
basic charter. But because of Article 71(4) of
the Federal Constitution , it is mandatory for
each State Constitution to contain certain
essential provisions. These provide for Rulers
to act on advice and for the existence of an
Executive Council and a single chamber and
an elected state legislature
 Legislation
• It refers to law enacted by a body constituted
for this purpose.
• Legislation is the law enacted by the
legislature , and by bodies and persons
authorized by the legislature
• Legislation enacted by the legislature is
referred to as primary legislation , that made
under power delegated by the legislature is
called delegated or subsidiary legislation
• In Malaysia , primary legislations are legislated
by the:
- Parliament = at federal level
(federal legislation)
- State Legislative Assemblies – at State level
(state legislation)
 Federal Legislation
• Federal legislation is the laws enacted by parliament
and they are called Acts. (Principal Act, Amendment Act,
Revised Act, Consolidated Act)
 Authority to frame ordinary Acts of parliament is derived from
Articles 73 to 79 and Schedule Nine of FC
 Authority to frame laws against subversion (Internal Security Act
1960 and the Dangerous Drugs ( special preventive measures)
Act 1985 derived from Article 149
 The power to frame legislation to combat an emergency is
contained in Article 150.Emergency Act 1979
• A special type of law is an Act to amend the Constitution that
can be legislated under the special procedures of Articles 151,
161e and 2(b)
• But those laws enacted by the federal
legislature between 1 April 1946 and 10
September 1959 are called Ordinances
• Laws promulgated by YDPA during an
emergency proclaimed under Article 150 of FC
are also called Ordinances
 Procedure
• The procedure for enactment of an Act of
parliament is a simple majority of the
members present and voting in both house of
parliament and the assent of the Yang di-
Pertuan Agong : Article 62(3)
• This simple majority procedure is , however , not
applicable to a number of legislative measure.
 Bills to amend the constitution generally require special
majorities and in some cases , the consent of persons
or authorities outside of Parliament is
mandatory.Depending on which part of the
Constitution is to be amended , different procedures
apply and these are prescribed by Articles 159 and 161E
 A law altering the boundaries of a state must be
enacted in accordance with special procedural
prescriptions of Article 2(b). The consent of the state
concerned and of the Conference of Rulers is required.
 Under article 66(4A) The YDPA can be bypassed in
legislative procedure.
 Article 68 permits the Dewan Rakyat and The YDPA
to enact legislation without consent of the Dewan
Negara
 Under Article 76(1) the Federal parliament has
power to legislate on topic in State list in certain
cases. But, subject to some exceptions, a law made
pursuance of Article 76(1) does not come into
operation in any State unless it has been adopted
by a law made by the legislature of that state.
 Under Article 38(4) no law directly affecting the
privileges and powers of Rulers shall be passed
without the consent of the Conference of Rulers
 Malay reserve land cannot be de-reserved except
by State and approved by a special majority
resolution of each House of the parliament:
Article 89(1)
 Draft Orders relating to delimitation of electoral
constituencies require the votes of not less than
one-half of the total number members of the
Dewan Rakyat : Schedule 13 , sections 10-11
 State legislation
• In our federal system state assemblies have the
power to frame enactments on 13 topics in the
state list and 12 topics in the concurrent list
• All state enactments are subject to the FC and
to the state’s own constitution and there are
several instances of state legislation being
invalidated by the courts on constitutional
grounds
 Legislation
Arts 74 , 95B & Schedules 9-10
FEDERAL LIST STATE LIST CONCURRENT LIST
External affairs State government Planning
Defence Islamic law Soil erosion
Internet Security Malay custom Scholarship
Civil law Islam
Administration of justice Public health
Local government Social welfare
Citizenship
Land
Machinery of government National parks & wildlife
Riverine fisheries
Finance and taxation Drainage & Irrigation
Trade and taxation
Forestry
Trade and industry Roads & Bridge
Public nuisance SABAH & SARAWAK
Shipping and fisheries ( CONCURRENT)
Energy,Transport Agriculture and housing
Education and health Malay reservation Personal law
Labour and professionals Water Some fisheries
Social Security SABAH & SARAWAK STATE Some shipping
Aborigines Native law, posts, harbours, Some energy
Water supply, rivers and canals libraries , immigration elections
 Subsidiary Legislation
• Also known as subordinate and delegated legislation
• In Malaysia , section 3 of the Interpretation Acts 1948
and 1967 (Act 388)(Consolidated and Revised 1989)
defines such legislation as ‘any
proclamation,rule,regulation,order,notification,by-law,
or other instrument made under any Act , Ordinance or
other lawful authority and having legislative effect.
• The federal and state assemblies are the primary but
not the sole law-making authorities in their jurisdiction.
So, subsidiary legislation is made by person or bodies
under powers conferred on them by Acts of Parliament
or State Assemblies via an enabling or parent statute
• A vast amount of legislation is made outside legislative
halls by delegates.
• Such legislation is limited to the subject matter
authorized by the parent law and is open to review by
the courts by many grounds
• Example:
- Person/body : Minister of Communications
- Parent Act : Communications & Multimedia Act 1998
- Subsidiary Legislation : Communications & Multimedia
( Licensing ) Regulations 1999
Unwritten
UnwrittenLaw
Law
 SYARIAH LAW
• Islam in the official religion of the federation-Art. 3
• Syariah Law apply to all Muslims in designated by the
Constitution in Schedule 9, List i and ii.
• It is administered by a separate system of courts –
Syariah Court.
• The power of enacting legislation on Islamic matters has
been assigned by the Constitution to State Assemblies
as well as to the Federal Parliament in specific areas.
• Its sources are derived from Al-Quran, Al-Hadith, Ijma
and Qiyas.
Hierachy of Syariah Court

Syariah Court of Appeal

Syariah High Court

Syariah Subordinate Court

 ENGLISH LAW
• Art 160 of FC – the common law in so far as it
is in operation in the federation or any part
thereof.
• It is the common law of England and the rules
of equity and in prescribed circumstances,
English Statutes.
 JUDICIAL DECISION
1.Doctrine of Judicial Precedent or Binding
Precedent.
• The doctrine is actually a system which
provides for consistency and certainty in
decisions.
• A judge`s decision in an earlier and similar
case constitutes a precedent and it must be
followed.
The system of court
 Judicial Precedent
• Precedent -> a judgment or decision of a court of
law cited as an authority for the legal principle
embodied in its decision.
• Doctrine of judicial precedent ->
• Doctrine of stare decisis aka “let the decision stand”
I. Horizontaly-Inferior courts are bound by superior court
decision in like cases
II. Vertically-Superior courts are generally bound by their
own decision and have the jurisdiction to overrule
principles of law laid down by courts of inferior
jurisdiction
• In operating the doctrine of binding
precedent, a judge may formulate an original
precedent; overrule an earlier precedent; or
creatively interpret an existing one.
 Application
• Chang Ming Tat FJ
PP v Datuk Tan Cheng Swee & Anor [1980] 2 MLJ 276
“it is however necessary to reaffirm the doctrine of stare
decisis which the High Court and other inferior courts in
a common law system such as ours to follow similarly.”
• Lord Gardiner
precedent creates certainty & therefore it is important
for the development of law. However to be too attached
to this doctrine of binding precedents & its result in
injustice in certain cases. Therefore in certain cases we
may deviate from following the binding precedents
 Non-application
• Circumstances
I. Judge may ignore or overrule precedent laid down
by a lower court where the case is on appeal.
II. They may refuse to apply to earlier precedent if it
is arrived at per incuriam.
III. They may distinguish the case when they find
there are materials differences in facts between a
case before them and the case laying down a
precedent.
 Advantages.
• It leads to an element of certainty in the law.
• The law is able to grow as the needs of society
alter.
• The law is flexible in that new rules arise out of
concrete facts or situations.
Disadvantages.
• The law become rigid to some extends.
• To prevent rigidity, courts tend to distinguish
cases based on the facts.
• The development of law through new
precedent, keen to be slow and irregular.
2. The judge may uphold the supremacy of the Constitution
by examining the constitutionality of parliamentary and
state enactments. The judge may declare the statute null
and void ab-initio (from the day it was enacted.
3. The judge may modify a pre-Merdeka law under
Art.126(6) to make it fall in line with the supreme
constitution.
4. The judge may interpret an existing statute creatively.
5. The application of the doctrine of ultra vires permits
tremendous judicial creativity.
6. The import of the rules of natural justice into statutory
contexts permits the courts to apply common law
standard of procedural fairness to situation when the
stated law is either silent or procedures or the prescribed
procedure is found wanting.