Bab 3

SOURCES OF LAW:
WRITTEN LAW
NURUL AQMAL ROSLAN_AQMALROSLAN@UITM.EDU.MY 11/2/2022 1

SOURCES OF LAW
▪ Sources refers to :-
i. Historical sources: factors that influence the development of law

although they are not recognised as law.
ii. Places: where the law is found (eg: statute, law reports, decisions of
law)
iii. Legal source: the legal rules that make up the law.
▪ Sources of Malaysian Law refers to the legal rules that make up the law of
the country.
NURUL AQMAL ROSLAN _ AQMALROSLAN@UITM.EDU.MY 11/2/2022 2
Federal
Constitution
State
WRITTEN Constitution
LAW
Legislation
SOURCES OF
MALAYSIAN Subsidiary
LAW Legislation
UNWRITTEN
LAW
English Law
Judicial
Precedent
ISLAMIC
LAW
Customary
Law
NURUL AQMAL ROSLAN _ AQMALROSLAN@UITM.EDU.MY 11/2/2022 3

WRITTEN SOURCES
1. Federal Constitution & State

Constitution
2. Legislation
3. Subsidiary Legislation

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.
◼ 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 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;
o 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;
o It relates to matter concerning which the relevant legislature
has no power to make law;
o It has not been enacted in accordance with the procedure
prescribed in the constitution; or
o It is inconsistent with any provision of the constitution; or
o In the case of state law, it is inconsistent with federal law.
◼ Constitutional supremacy purports to apply in Malaysia.

◼ Article 159 + Article 161E mentioned that the constitution can
be amended as long as the procedure set out in the Constitution
is followed.
◼ There are four methods by which constitution can be amended:
• Amended by a bill which receives the support of the
votes of not less than 2/3 of the total no. of
members of each House of Parliament in its 2nd &
Requiring 3rd reading at the Parliament. Requirement for most
Special provision.
• E.g. – Required for bills to amend legislation passed
Majorities under Article 10(4) which allows the Parliament to
make law laws regarding the so-called “sensitive
Issues”.
Requiring • Some provision in addition to the special majorities cannot
Consent of be amended without the consent of the COR
Conference of • E.g.- Matter included under A.37(4) which directly affects
Ruler the privileges, position, honour or dignities of the Rulers.
Reservation of quotas for Malay and Native of Saba &
Sarawak under A.153
• Certain provision that requires the consent of YDPN of
Requiring Sabah & Sarawak
Consent of Sabah • E.g.- Matter include under A.161E (citizenship , jurisdiction
& Sarawak of HC, religion, language, special treatment of natives, right
& power of gov. regarding entry)
• Certain provision can be amended by ordinary law which
does not require special majority, but only simple majority.
Not Requiring • E.g.- Admit state to Federation, alter boundaries or change
Special Majorities Federal Capital, such as under A.154, 154(4). Restrict
movement within the Federation, as stipulated under
A.9(2)(3), 10(2)(3).
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: YDPA
▪ 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.

IMPORTANT FEATURES:
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.

IMPORTANT FEATURES:
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;
o Appointment of the Prime Minister
o Withhold consent to a request to dissolve Parliament
o Request a meeting of Conference of Rulers

IMPORTANT FEATURES:
EXECUTIVE AND CABINET – ART 39-43C
▪ 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.

IMPORTANT FEATURES: 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 18 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.

IMPORTANT FEATURES:
FUNDAMENTAL LIBERTIES
▪ Provided in Article 5 – 13 of the FC.

▪ Article 5(1) provide:
o “No person shall be deprived of his life or personal liberty save accordance to law.”
▪ Article 5(2) provide: Arrested person to known the ground of the arrest
▪ Aminah v Superintendent of Prison, Pengkalan Chepa, Kelantan (1968) 1 MLJ 92;
When a person arrested, he must be 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.
◼ Yit Hon Kit v Minister of Home Affaits [1998] 2 MLJ 638; A delay of 57 days between
arrest and the supply of the grounds of arrest was held to be contrary to Article 5.
◼ Chong Kim Loy v T.Men. Hal Ehwal Dalam Negeri ; oral communication would be
sufficient but be made clear that although such may not be in detail “enough must be
made to known to him”.
IMPORTANT FEATURES:
FUNDAMENTAL LIBERTIES – A.5
▪ Article 5(3) provide: the right to legal representation

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

IMPORTANT FEATURES:
◼ Ramli Bin Salleh v Yahya Bin Hashim [1973] 1 MLJ 54; The court rule
that it is for the police to show that affording the right to counsel
would impede investigation and that the police must not delay or
obstruct the meeting with lawyer on arbitrary or fanciful grounds.
◼ Mohamed bin Abdullah v Public Prosecutor (1980) 2 MLJ 201; absence
of the counsel did not vitiate the trial.
◼ Article 5(4) provide: the right to be produce before Magistrate within
24 hours of the arrest.
◼ Article 6 provides that no person shall be held in slavery and all
formed of force labour are prohibited except relating to national
service or work incidental with imprisonment imposed by court.

IMPORTANT FEATURES:
◼ Article 7(1) provides safeguards against backdated legislation or
retrospective effect on criminal law:
o The parliament cannot create new offences and give it retrospective effect
o The increase for the punishment for a penalty cannot done respectively
◼ PP v Mohamed Ismail (1984), the court refuse the PP request to apply the
new law which put the mandatory death sentence as the only punishment
for drug trafficking because the increase for the punishment was done after
the commission of the offence.
◼ Article 7(2) mentioned that no person should be placed under the peril of
penalties more than once on the same occasion, based on the same fact.
(double jeopardy).
◼ PP v Teh Ceng Poh (1979), there is no double jeopardy when the accused is
charged with the different offence although the new charge is based on the
same facts.

IMPORTANT FEATURES:
FUNDAMENTAL LIBERTIES
◼ Article 8(1) provides all person are equal before the law and entitled to the equal
protection of the law.
o 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.
o 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.
o This right is not absolute where there are various laws which effectively have
either restricted or taken away the rights such as Sedition Act 1948, Printing
Presses and Publication Act 1984, Official Secrets Act 1972 and
Communication and Multimedia Act 1998.
IMPORTANT FEATURES:
◼ Article 11 covers freedom of religion.
o Freedom of religion does not authorise acts contrary to any general law
relating to public order, health or morality.
◼ Teoh Eng Huat v Kadhi, Pasir Mas & Anor (1990) 2 MLJ 300, 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).
◼ Lina Joy v Majlis Agama Islam Wilayah & Anor (2004) 2 MLJ 119, 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.
◼ Halimatussadiah & Meor Atiqurrahman, involve the question on whether the
authority can restrict the attire of the public servants or students.
IMPORTANT FEATURES:
◼ Article 12 covers rights in respect of education.

o 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.

IMPORTANT FEATURES:
◼ Teo Eng Huat v Kadhi Pasir Mas, Kelantan and Anor (1990), High Court held
that father’s right to decide the religion and the upbringing of the infant
(under 18) is allowed “subject to the condition that it does not conflict with
the principles of the infant’s choice of religion guaranteed to her under the
FC”. In other words, the infant has a right to choose her own religion if she
does it on her own free will. (in this case the infant revert to Islam when she
already 17 years and 8 months)
◼ Indra Gandhi Mutto v Jabatan Agama Islam Perak and Anor (2018), where her
ex-husband’s unilateral conversion of their three children to Islam in 2009,
before he went to the Syariah Courts to obtain custody over them. Federal
court decide that consent must be acquired from both parents for the best
interest in the child, who will subject to new and different set of personal
laws when religion is change.

IMPORTANT FEATURES:
◼ Article 13 provide for the rights to property.

o No person shall be deprived of property save in accordance with law.
o In the case of acquisition or use by public authorities, the owner of the
property should receive adequate compensation.
◼ Ketua Polis Negara v Gan Bee Huat (1998), the seizure of property under
the drug law passed under the constitutional provision to combat
subversion does not attract protection under A.13nand thus not entitled
for compensation.
◼ Pengarah Tanah & Galian, Wilayah Persekutuan v Sri Lempah Enterprise ,
the grant of planning permission with condition that the owner surrenders
the perpetual ownership of the land was held to be bad in 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.
◼ In 1885, Dicey- proposes that rule of law connotes 3 basic concepts:
o Absence of arbitrary powers
o Equality of law
o The rights of an individual must be determined by law i.e. judicial
decisions. The constitution is judge-made.

RULE OF LAW
◼ 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 be responsible
to its acts.

SEPARATION OF POWERS
◼ The doctrine which originated from “Montesquieu”

◼ Montesquieu- the powers of governments are 3 kinds;
o Legislative
o Executive
o 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.
GOVERNMENT
OF MALAYSIA
EXECUTIVE
LEGISLATIVE JUDICIARY
(YDPA, PM &
(Parliament) (Courts)
Cabinet)

PARLIAMENT
◼ 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)

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/gazetted.
◼ 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.
◼ 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.
◼ 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.
JUDICIARY
◼ The unsatisfied party can always appeal to the court above.

◼ Generally, the grounds of appeal by unsatisfied parties are;
o Error of law;
o Appeal against the sentence passed.
◼ The court may punish for contempt of court.
◼ 2 types of contempt of court;
o Civil contempt – acts of disobedience of courts' order or judgments.
o 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

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.
◼ Parliament and State legislature are not supreme.
◼ They have to enact law subject to the provisions set out in the
Federal and State Constitutions.

LEGISLATION
◼ 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 are
called Ordinance called Enactment except Sarawak laws
are called Ordinance
Law enacted after 31.08.1957 are called
Acts
Parliament can enact laws in matters State Legislative Assembly can enact
listed in list I of the Nine Schedule law in matters listed in List II of the
Nine Schedule
LEGISLATIVE PROCESS
(HOW BILL BECOME LAW)
◼ There are few steps to be taken before a Bill could become a law and
enforceable
FIRST OTHER ROYAL
A
READING HOUSES ASSENT
SECOND COMMITTEE THIRD
When a Bill is OF HOUSE READING When a Bill When the Bill
READING has been
first Considers the The Bill is has passed
The Bill must passed by one both Houses in
introduced in Bill in detail review again.
printed out House, it is accordance
one of the two and may
and Debate takes sent to the with Art. 68
houses, only amend any
circulated. place and other house, FC, it is sent to
the title is part of it. The
Members amendments where it the YDPA for
Committee
actually read then submits a
follows a the Royal
debate the may be put to similar
by the clerk report on the Assent. YDPA
Bill. The Bill a note. The pattern. If the
of the Dewan. Bill to the shall within 30
will have to House then second house
After the Bill house. If the days assent the
be voted upon either passes amends the Bill. The Bill
is passed at report is
to proceed to or defeats the Bill, the Bill then becomes a
this stage, the approved, the
must be
the committee Bill goes on to Bill by voting. law
text is printed returned to the
stage. a third reading upon
and first house for
distributed. in the House. publication.
its approval.
LEGISLATIVE PROCESS
(HOW BILL BECOME LAW)
◼ Publication:
o Article 66(5) of the FC- a Bill become law on being assented to by the
YDPA.
o No law shall come into force until it has been published.
o Publication is done in the Warta Kerajaan (Federal Gazette).
◼ Legislation as a source of law:
o It is published and easy form of reference
o Amendments done by the specific legislative body.
o Legislation as a source of law has become more important than case-law or
precedents.
o 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
SUBSIDIARY or other instrument made
LEGISLATION 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
o 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;
o Legislative has insufficient time to enact all the details in
every aspects as required in a modern society;
o Best to left to the expertise or administrators who are well
versed with the technicalities involved;
o 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.
iv. 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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SOURCES OF LAW:

NURUL AQMAL ROSLAN_AQMALROSLAN@UITM.EDU.MY 11/2/2022 1

i. Historical sources: factors that influence the development of law

NURUL AQMAL ROSLAN _ AQMALROSLAN@UITM.EDU.MY 11/2/2022 3

1. Federal Constitution & State

NURUL AQMAL ROSLAN_AQMALROSLAN@UITM.EDU.MY 11/2/2022 4

NURUL AQMAL ROSLAN_AQMALROSLAN@UITM.EDU.MY 11/2/2022 5

◼ The Federal Constitution is the supreme law of the land by virtue of

▪ There are also Constitutions of the States comprising the

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◼ Supreme Head of the Federation who is elected by the

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▪ Any action by or against the YDPA or Ruler of a State in his

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▪ Consists of Their Royal Highness of Rulers and the YDP Negeri

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▪ Executive – vested in the YDPA and exercisable by him or

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▪ YDPA shall appoint the Cabinet of Ministers to advice him

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▪ Federal Legislature- consists of the YDPA and 2 Houses which

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▪ Provided in Article 5 – 13 of the FC.

▪ Article 5(3) provide: the right to legal representation

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◼ Article 12 covers rights in respect of education.

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◼ Article 13 provide for the rights to property.

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◼ In 1945 – concept of rule of law was applied in enhancement of

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◼ The doctrine which originated from “Montesquieu”

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◼ Federal legislative powers are vested in Parliament

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◼ The unsatisfied party can always appeal to the court above.

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◼ Legislation refers to law enacted by a body constituted for this

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◼ Parliament – enact law as enumerated in List I of the 9th

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PARLIAMENT STATES LEGISLATIVE

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◼ Case: Ghazali v Public Prosecutor (1964) MLJ 156

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◼ (d) Legislative Control- Laying Procedures:

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• When the resolution is passed, the disapproved portion

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