LAW 245 Malaysian Legal System - Chapter 4-LAW 245 Malaysian Legal System - Chapter 4

LAW 245
MALAYSIAN LEGAL SYSTEM
-CHAPTER 4-
PREPARED BY:
MUHAMMAD FIKRI BIN OTHMAN
UITM SAMARAHAN II
MUHAMMAD FIKRI BIN OTHMAN-FUU 12/04/2020 1
WRITTEN SOURCES
(1) Federal Constitution & State

Constitution
(2) Legislation
(3) Subsidiary Legislation

(1)
FEDERAL
CONSTITUTION
&
STATE
CONSTITUTION
FEDERAL CONSTITUTION & STATE
CONSTITUTION
(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.

Federal Cont…
 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.

State Const
(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 CONCEPT OF SUPREMACY
 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.

Concept of Supremacy…
 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.

IMPORTANT FEATURES
 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.
Important Features…
 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).
PARLIAMENT
YDPA House of Parliament

 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.

FUNDAMENTAL LIBERTIES
 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.

Fundamental Liberties…
 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.

RULE OF 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.

Rule of Law…
 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…
 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.

SEPARATION OF POWERS
 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.

Separation of Powers…
 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.

Separation of Powers…
GOVERNMENT OF MALAYSIA
LEGISLATIVE EXECUTIVE JUDICIARY

(Parliament) (YDPA, PM & Cabinet) (Courts)

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

Parliament…
 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.

EXECUTIVE
 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.

Executive…
 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.

JUDICIARY
 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.

Judiciary…
 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.

Judiciary…
 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.

(2)
LEGISLATION

LEGISLATION
 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.

Legislation…
 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
Legislation…..
PARLIAMENT STATES LEGISLATIVE
ASSEMBLIES
Enacts law at Federal level Enacts law at State level
Within limits prescribed by Federal Within limits prescribed by State
Constitution Constitution
Law enacted before 31.08.1957 are Law enacted by State Assemblies
called Ordinance 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 can
matters listed in list I of the Nine enact law in matters listed in List II
Schedule of the Nine Schedule
12/04/2020 44
MUHAMMAD FIKRI BIN OTHMAN-FUU
LEGISLATIVE PROCESS
(How Bill Become Law)
 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
1 and circulated. Members
When a Bill is first
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
When a Bill has been the House.
ROYAL ASSENT
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.

(3)
SUBSIDIARY
LEGISLATION

 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.
 Legislature merely 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.

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LAW 245

MALAYSIAN LEGAL SYSTEM

(1) Federal Constitution & State

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 The State Constitution contains provisions which

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 It is inconsistent with any provision of the

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YDPA House of Parliament

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LEGISLATIVE EXECUTIVE JUDICIARY

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 There are few steps to be taken before a Bill

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• (a) Judicial control:

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 (d) Legislative Control- Laying Procedures:

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