T3 - Sources of Law and

How Legislation are passed

MEANING OF SOURCES
The word sources has several meanings:-
Historical sources: - factors that have influenced
the development of law although they are not
recognized as law. These include religious
beliefs, local customs and opinion of jurists
Legal sources : legal rules that make up the law
Places where the law can be found for example,
statutes, law ports and text books
Sources of Malaysian Law means the legal
sources i.e. the legal rules that make up the law
in Malaysia
What is this?
It is a basic doctrine in modern democratic
government
Montesqieu, The Spirit of Laws (1748):
The powers of government are to be separated into 3
parts, namely:-
1. Legislative - responsible for making laws
2. Executive - to govern, enforce and policies the laws
3. Judiciary to adjudicate or interpret the laws
1. Legislative - responsible for making laws
Parliament and State Legislative Assemblies
Parliament comprises of:
Dewan Negara Elected by State Legislature or appointed by
Yang di-Pertuan Agong Senator
Dewan Rakyat - Elected by people YB

2. Executive - to govern, enforce and policies the laws
Cabinet comprises of Prime Minister and other Ministers
Supreme policy-making body in Malaysia

3. Judiciary to adjudicate or interpret the laws
Courts:-
Superior Courts - Federal Court, Court of Appeal, High Court
Subordinate Courts - Session Court, Magistrate Court and etc
Check and balance mechanism
Lord Acton: Power tends to corrupt, and
absolute power corrupts absolutely.
Illustration, says, if all the 3 powers
centralised into the cabinet:-
They can set policy to impose death penalty on
smoking (Executive function);
They will make law to that effect (Legislative function);
They will be the one who sentenced death penalty on
you (Judiciary).
Conclusion: Is such separation important?
Malaysian law can be classified
into:-
a) Written law; and
b) Unwritten law.


Sources of law can be categories into 2:

1. Written Law which consist of
I. Federal Constitution
II. State Constitution
III. Legislation
IV. Subsidiary legislation and
V. Syariah Law

2. Unwritten Law consist of
I. Principles of English Law
II. Judicial Decisions and
III. Customs




It is the most important source of law
It refers to:-
1. Federal Constitution and State Constitutions.
2. Legislation enacted by Parliament and State
Assemblies. (Acts, Ordinance and Enactment)
3. Subsidiary legislation made by persons or bodies
under powers conferred on them by Acts of
Parliament or State Assemblies. (eg Rules,
Regulations, By-laws, etc.)
Generally, they are:-
1. Parliament
Laws made by Parliament are called Acts.
2. State Assemblies
Laws made by the State Legislative Assemblies
(except in Sarawak) are usually called Enactments.
The laws in Sarawak are usually called Ordinances.
3. Persons or bodies under powers conferred
on them by Acts of Parliament or State
Assemblies
They are usually known as Rules, Regulations, By-
laws and etc
Malaysia is a Federation of 13 States with a written
constitution, the Federal Constitution.
The Federal Constitution is the supreme law of
Malaysia.
Lays down the powers of the Federal and State
Governments
Preserves the basic or fundamental rights of the
individual.
These rights written into the Constitution can only
be changed by 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.


Article 4(1) of the :
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
It applies to all the States in Malaysia.
It set out the powers of the Federal and State
Government.
The FC also enshrines the fundamental rights of
the individual.
These fundamental rights can only be changed by
2/3 majority of the total numbers of legislature.
These fundamental rights include:-
right to be informed of the grounds of arrest as soon as
may be;
right not to be detained for more than 24 hours without
an order for remand from Magistrate;
protection against retrospective criminal law and etc
Art 7(1): No person shall be punished for an
act which was not punishable by law when it
was done or made.
This is also known as protection against
retrospective criminal law.
Illustration:
Ali ate some cake on 29.09.10
Parliament enacts law to prohibit and punish the
eating of cake on 30.09.10 and this law (Anti-Cake
Act 2010) is to be applied retrospectively (ie back
dated).
Is Anti-Cake Act 2010 a valid law?

States in Malaysia, for example: Selangor,
Penang, Johor, Sabah, Sarawak and etc.
This mean besides the Federal Constitution
which applies to all states in the Federation,
each state also possesses its own
constitution regulating the government of
that State.
Include matters concerning the Ruler, the
Executive Council, the Legislature, the
Legislative Assembly, financial provisions,
State employees and amendment of the
Constitution.


Refers to laws enacted by the Parliament at
federal level and the State Legislative
Assemblies at state level
In Malaysia, laws are enacted by Parliament at
federal level and by the various State
Legislative Assemblies at state level.
They have to enact laws subject to the
provisions set out in the Federal Constitution.
III. Legislation
Ordinance = Laws that are enacted by
Parliament after 1946 but before Malaysias
Independence in 1957. / The laws in Sarawak
Acts = Laws that are made after 1957
Enactments = Laws made by the State
Legislative Assemblies (except Sarawak)


Meaning of subsidiary = secondary
Subsidiary legislation also known as
delegated legislation
Usually made by Minister or someone who
authorised under the parent act.
Section 3 of the Interpretation Acts 1948
and 1967 defines subsidiary legislation as:
any proclamation, rule, regulation, order,
notification, by-law or other instrument made
under any Act, Enactment, Ordinance or other
lawful authority and having legislative effect.

Concept of parent and subsidiary legislation.
Parent act also known as enabling act
For example:

Employment Act
1955
Employment
(Termination
and Lay-Off
Benefits)
Regulations
1980
Parent Act
(made by
Parliament)
Subsidiary
Legislation
(made by
Minister)
i. Orders in council. This is the highest form of
delegated legislation, many Acts of
Parliament being brought into operation in
this way. The power to make the Order being
contained in the Act.

ii. Rules and regulations. A statue may
authorize a minister or a government
department to make a wide variety of rules
and regulations. These rules, Orders in
Council are collectively known as statutory
instruments (SIs).

iii. By Laws. These are rules made by local
authorities. Their operation is restricted to
the locality to, which they apply.

ADVANTAGES DISADVANTAGES
1. Saves limited time in Parliament;
2. Allow rapid change;
3. MPs lack detailed or technical
knowledge. E.g. Specific details in
Abortion Act, Road Traffic detail
4. Quick response to new
developments, e.g. Foot and Mouth
outbreaks. The Prevention of
Terrorism (Temporary Provisions) Act
allows the quick addition of new
prohibited groups.
5. Enables minor changes to statutes,
e.g. Variations in sentences,
approval of motor vehicle changes.
6. Model bylaws available from
Whitehall.
1. implies that Parliament has
insufficient time to scrutinize it.
Parliament is not reviewing
legislation properly.
2. Sub-delegation of powers a further
problem (although not for EU
statutory instruments), which causes
complexity and confusion.
3. Sheer volume causes complexity - it
is impossible for anyone to keep
abreast of all delegated legislation.
4. Lack of publicity, not known about
by the public (and often lawyers).
5. It is undemocratic as most
regulations are made by civil servant
or other unselected people, except
for local authority bylaws made by
elected councilors
V. Syariah Law/ Islamic Law
Article 3 (1) of the Federal Constitution
provides that Islam is the religion of the
federation.
Islamic law is only applicable to Muslims as
Article 11 of the Federal Constitution
guarantees every persons right to profess
and practice his religion
Islamic law is administered in each state
according to the Administration of Muslim
Law Enactments or Ordinance.
It governs Muslims family law (marriage,
divorce, right to custody), and some aspects
of personal law (e.g. wills, inheritance) and
other offences that are not covered by the
Penal Code (e;g. Khalwat).
Administered in Syariah Courts that possess
civil jurisdiction in proceeding parties who
are Muslims and limited criminal jurisdiction.



What is unwritten law?
The unwritten law comprises the following (in
descending order of importance):
1. Judicial decisions of the Superior
Court;
2. English Law;
3. Customary Law.
I. Judicial Decisions
Definition: A judge has to follow what earlier
courts have decided in a similar situation
(precedent). However, a higher appeal court
may overturn precedents.
A judge is subjected to the rule of stare
decisis that is to stand by cases already
decided. This doctrine is also known as the
doctrine of judicial precedent or binding
precedents.
Judges and magistrates are not bound by
decisions regarding the same or similar facts
by another court if the decisions were made
outside their hierarchy, at the same level or
below their level

In Malaysia, the law is to be found not only in
legislation (ie: written law) but also in cases
decided by the superior courts.
Only the decisions of superior courts are
source of law, as it is these courts that decide
on matters of law, whereas subordinate court
generally decide on matters of fact.
What is superior court? What is subordinate
court?


Superior Courts are:-
1. Federal Court;
2. Court of Appeal;
3. 2 High Courts namely - High Court
of Malaya and High Court of Sabah
and Sarawak.
Subordinate Courts include:-
1. Session Court;
2. Magistrate Court;
3. Penghulu Court (in West
Malaysia)
It is generally recognised that judges do make law
though not in the same manner as the legislature.
Judges make laws in 2 ways:-
1. Applying an established rule or principle to a
new situation or a set of facts.
2. Interpreting laws enacted by the legislature.

This occurs most frequently in areas where statutory law has
made very little impact such as the law of tort.
Illustration:
Tort of negligence
Donoghue v Stevenson [1932] AC 562
Ms. Donoghue, drank ginger beer given to her by a friend, who
bought it from a shop. The beer was supplied by a manufacturer
named Stevenson. While drinking the drink, Ms. Donoghue
discovered the remains of a decomposed snail. She then sued
Stevenson for damages ($) as a result of Stevensons negligence.
Example: Ali, drank milk given to him by his friend, Mutu, who
bought it from a supermarket. The milk was manufactured by Ah
Chongs Food Sdn Bhd. Ali has discovered a decomposed rat in
the milk. He then sue Ah Chongs Food Sdn Bhd for negligence in
KL High Court.
The KL High Court will then apply the principle established in
Donoghue v Stevenson in Alis case and may held in favour of Ali.
Statute laws are rarely self-contained or self-
explanatory and courts are frequently called upon:-
To decide what the laws mean; and
How the laws are to be applied to particular situations.
Illustration:
Smith v Hughes [1960] 2 All ER 859
Under the Street Offences Act 1959, it was an offence for
prostitutes to "loiter or solicit in the street for the purposes
of prostitution".
The accused were calling to men in the street from balconies
and tapping on windows.
They claimed they were not guilty as they were not in the
street.
The judge held that they were guilty as the intention of the
Act was to cover the mischief of harassment from
prostitutes.
Precedent = a superior courts decision
The Hierarchy of Precedent
1. Federal Court
2. Court of Appeal
3. High Court
Illustration:
General rule: Federal Court held A; Court of Appeal,
High Court, Session Court and Magistrate Court must
held A and not others.

English Law means:-
1.Common Law
2.Equity
3.English Statues
1. Common Law
based on customs common throughout England
It is an unwritten law (not made by Parliament)
Based on the decisions/precedents of the superior courts
Available as of right
Only available remedy is damages ($$)
2. Equity
It was first developed by Lord Chancellor (the Kings right hand)
By way of petition to King decided based on fairness and not
on precedents.
Supplemental to common law, use to correct its defects and
reduce its harshness
Not available as of right, it must come with clean hand (not due
to your own fault) + courts discretion
Equitable remedy Injunction. This is an order of the court
directing someone to stop doing something or to do some
particular thing.
3. English statutes
Laws enacted by the British Parliament.



II. Customary Law
Also known as adat law consists of customs
and traditions of the local people.
Among the known adat law in West Malaysia
includes Adat Pepatih and Adat Temenggong.
Native customary laws in East Malaysia are
the basic law of the state

It mainly relates to family matters. For example,
marriage, divorce and inheritance.
For example, Chinese Customary Law:
Choo Ang Chee v Neo Chan Neo and Ors (1908) 12 SSLR
120 the six widows case
The Court held that Chinese marriages under customary law
is polygamous. (in this case, 6 wives/widows)
However, many customs have been given way to statute
law enacted by the Parliament.
Law Reform (Marriage And Divorce) Act 1976 (Act 164)
provides that polygamy is an offence.
Example of law reports:-
Malaysia/Singapore
Malayan Law Journal (MLJ)
Current Law Journal (CLJ)
Singapore Law Reports (SLR)
UK
QB (Queen's Bench Division)
Ch D (Chancery Division)
Specialised Law Reports (eg. Tax)
Simons Tax Cases (STC)
Civil Action Criminal Action
Contract dispute, tort and etc. Theft, murder, computer crimes and etc.
Summons/Suits Prosecute/Prosecution
Plaintiff Public Prosecutor/Deputy Public
Prosecutor
Defendant Accused
Liable Guilty
Plaintiff v Defendant
(Ben Hon v Ali)
Public Prosecutor v Accused
(PP. v Ali)
v = and v = against
Civil Action Criminal Action
Standard of proof: Balance of
probabilities
Standard of proof: Beyond reasonable
doubt
Remedies: Damages ($$), injunction,
specific performance and etc
Sentences: Death penalty, imprisonment,
fine
Bona fide Good faith
Mala fide Bad faith

The Malaysian Legal System, Wu Min Aun,
1999, 2
nd
Ed.
An Introduction to the Malaysian Legal
System, Wan Arfah Hamzah & Ramy Bulan,
2003.
Tun Mohamed Suffians An Introduction to
the Constitution of Malaysia, Tunku Sofiah
Jewa & others, 2007, 3
rd
Ed.
General principles of Malaysian law, Lee Mei
Pheng, 2
nd
Ed.