UNDERSTANDING LEGISLATION AS A SOURCE OF LAW

LEGISLATION AS A SOURCE OF LAW

1. INTRODUCTION

Legislation - refers to laws formally 'enacted' by a legislature. Legislature is an officially elected or otherwise selected body of people vested with the responsibility and power to make laws for a political unit, such as a state or nation or other governing body. Such laws are also termed as 'statutory laws'. Legislation is carried out by Parliament at federal level and by the various State Legislative Assemblies for their respective states.

‘Statute' is used to refer to a single law, legislation may refer to a single law, or the collective body of enacted law. 

Before an item of legislation becomes law it may be known as a 'Bill', which is typically also known as 'legislation' while it remains under active consideration. 

1.1 Nature of Legislation

Legislation derive their authority from the "legitimate authorities and institutions of the State i.e. the Parliament

Difference between legislation and common law – the former emanate from the direct, conscious and deliberate law making activity of the State, whereas common law "grows or develops through time", almost authorless, by a succession of courts' decisions. 

The pattern in modern common law legal systems appears to be that principles of law are born out of the common law and equity but the detail of such law is embodied in a statute.

Hence – legislations are:

• Creative and dynamic
• Can be without referring to or falling back upon already existing principles
• Can embody new radical law
• Can be abolished or speedily amendment
• Efficient agent of law reform

1.2 Power to Make Law

In Malaysia – vested in the legislative arm of the Parliament (Federal Government) and State Legislative Assembly (State Government)

Article 44 of FC - "The legislative authority of the Federation shall be vested in a Parliament, which shall consist of the Yang di-Pertuan Agong and two Majlis (Houses of Parliament) to be known as the Dewan Negara (Senate) and (Dewan Rakyat (House of Representatives)."

Article 73 declares: "In exercising the legislative powers conferred on it by this Constitution - 

·         Parliament may make laws for the whole or any part of the Federation and laws having effect outside as well as within the Federation; 

·         the Legislature of a State may make laws for the whole or any part of that State. 

Federal and states legislature are not supreme. They enact laws within the limit prescribed by the federal and state Constitutions and the subject matters for legislation are divided between them. The divisions are:

Parliament	List I Ninth Schedule
States Legislatures	List II
Concurrent Jurisdiction	List III

Parliament and State Legislative Assembly are also conferred the power to delegate this law-making authority to other bodies or agencies

• Therefore, the legislation which is enacted by the legislature (Parliament and State Legislative Assembly) is referred to as 'primary legislation', while that emanates from such bodies and agencies is called 'delegated legislation' or 'subordinate legislation' or 'subsidiary legislation'. 
• Any legislation introduced must be within the limits and in the manner determined by the Federal Constitution and State Constitution respectively. 
• Any law passed by Parliament or State Legislative Assembly which is of general application is absolutely binding on all persons within the sphere of Parliament's or Assembly's jurisdiction. 

1.3 Functions of Legislation

1. Revision of law
2. Consolidation of enactments
3. Codification
4. Collection of revenue /monetary control
5. Implementation of treaties – incorporation
6. Social legislation
7. Public policy and response to pressure group

1.4 Forms of Legislation

Laws enacted by Parliament are called Acts (also referred to as 'statutes')

Laws enacted by the Federal legislature between 1 April 1946 and 10 September 1959 are called Ordinances. 

Law enacted by the State Legislative Assemblies are referred to as Enactments, except in Sarawak where they are known as Ordinances.

Laws promulgated by the Yang di-Pertuan Agong during an emergency proclaimed under Article 150 of the Federal Constitution are also called Ordinances.

Acts of Parliament are of four types:

• Principal or Primary Act, which is the most common – this is an Act passed by Parliament that is complete in itself and has been enacted for a particular purpose.
• Amendment Act, which makes changes to the provision/s within the Principal Act;
• Revised Act, which results from changes (restricted to technical, grammatical, and typographical changes that do not affect the substance of the law)made by the Commissioner of Law Revision under powers conferred upon him in the Revision of Laws Act 1968. Example: Civil Law Act 1956 (Act 67) (Revised 1972); and 
• Consolidated Act, which brings together in a single Act, two or more Acts on a specific subject-matter which had been passed over a period of time; e.g. the Interpretation Acts 1948 and 1967 (Act 388) (Consolidated and Revised 1989). The statute law in relation to the given matter is, therefore, readily accessible in one Act.