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
- Revision
of law
- Consolidation
of enactments
- Codification
- Collection
of revenue /monetary control
- Implementation
of treaties – incorporation
- Social
legislation
- 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.
UNDERSTANDING LEGISLATION AS A SOURCE OF LAW
Reviewed by Kamaruddin Mahmood
on
11:11:00 PTG
Rating:

Tiada ulasan: