SOURCES FROM WRITTEN LAW

         

 2. SOURCES FROM WRITTEN LAW

Sources from written law are Constitution, legislations and subsidiary legislations. The constitution is either federal Constitution or State constitution.

2.1 Federal Constitution

The Federal Constitution is the supreme law of Malaysia, any law passed after Merdeka Day   which is inconsistent with the Constitution is, to the extent of the inconsistency, void - Article 4 (1) of FC. The Malaysian parliament’s law making is limited by constitutional provisions; however its actual power should not be underestimated. It has capacity to amend the constitution. In Malaysia, constitutional amendment does not require the conduct of a referendum.

The Federal Constitution establishes a constitutional monarchy and a federal system of government. Under the federal system, there is a division of legislative powers between the central parliament and the state assemblies.

The Federal Constitution also provides that Islam be the religion of the federation but guarantees the freedom of religion.

2.2 State Constitutions

All the thirteen States comprising the federation have individual constitutions which provide for a single chamber Legislative Assembly in each State.

2.3 Legislations/ statutes

Legislation refers to laws made by a person or body which has the power to make law. In Malaysia, both Parliament and the State Legislative Assemblies possess authority to enact laws in their respective areas. Laws made by Parliament may extend throughout the country and extra-territorially while laws enacted by a state Assembly can only apply to that state.

The following nomenclature is used in reference to specific pieces of legislation.

Act - A federal law made by Parliament although those made between the period  of the Malayan Union in 1946 and 10^th September 1959 are called Ordinances.

Enactment - A state law made by a State Legislative Assembly with the exception of Sarawak where it laws are called Ordinances.

Ordinance - A law made by the Yang Di Pertuan Agong during a proclamation of an emergency when Parliament is not sitting concurrently.

2.4 Subsidiary law / delegated legislation.

Subsidiary laws are rules and regulations enacted by an authority under powers conferred on it by a statute. There are federal and state subsidiary legislation. The use of rules and regulations is for the purpose of implementing a statute and to provide details of the Parent statute.

Reasons for delegation:

•          Insufficient laws to deal with everyday matters

•          Economize the legislative time of legislature

•          Lack of expertise in technical matters

•          Delegated legislation is more flexible and elastic

However, all the above laws must be in accordance with / does not contravene the supreme law of the land i.e. the Federal Constitution

If the law goes against the Constitution - ultra vires , the effect is the law is void and not applicable.