Malaysian Legal System

Sources of Malaysia Law

Federal Constitution

The doctrine of the supremacy of Parliament does not apply in Malaysia. Here we have a
written constitution. The power of parliament and State Legislature in Malaysia is limited
by the Constitution, and they cannot make any law they please.
Ah Thian v Government of Malaysia [1976] 2 MLJ 112
Discuss the above statement.
In Malaysia, the Federal Constitution is the supreme law of the federation. It
is the fundamental law of the land, and used as a benchmark with which to
measure the validity of all other laws. Any law inconsistent with the Federal
Constitution may be challenged in court.
The supremacy of the Federal Constitution is set out in Articles 4(1) and
162(6) and s.73 of the Malaysia Act 1963. Article 4(1) states that the
Federal Constitution prevails over other laws in Malaysia, and any law that is
not consistent or against the Federal Constitution is deemed void. Article 4(1)
only refers to laws made after Merdeka Day. Laws made before Merdeka Day
are dealt with in Article 162. Under Article 162(6), pre-Merdeka laws shall be
applied by a court or tribunal with such modifications as may be necessary to
make them in accordance with the Federal Constitution. S.73 of the Malaysia
Act 1963 (As affected by Article 159A of the Federal Constitution) 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 preMalaysia laws enacted by the state legislature, including those whose
subject-matter became a federal matter on that date. Such laws, however,
shall continue to apply only within the state concerned.
In the case of Loh Kooi Choon v Government of Malaysia, Raja Azlan Shah FJ
stated that the Constitution is the supreme law of the land and
embodying 3 basic concepts: the individual has certain fundamental
rights upon which not even the power of the State may encroach; the
distribution of sovereign power between the States and the Federation; and
no single man or body shall exercise complete sovereign power, but that
it shall be distributed among the Executive, Legislative and Judicial
branches of government.
The supremacy of the Constitution suggests that Malaysia has a limited
Parliament. The implications of these Articles are that in Malaysia all
persons and authorities, including Parliament, are subject to the provisions of
the Constitution. Their powers are limited and defined and are to be found in
the Constitution itself. Any unconstitutionality is liable to be challenged and
invalidated in court. The doctrine of the supremacy of Parliament is not part
of Malaysian legal theory. This was affirmed by Lord President Tun Suffian in
the case of Ah Thian v Government of Malaysia. There are two types of limits
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to the Parliaments powers, those two being substantive limits, and

procedural limits. Substantive limits refer to limits relating to subject matter
including jurisdictional error, restrict fundamental rights, violating the
federal-state division of competence. Procedural limits refer to how power
must be exercised.
The supremacy of the Constitution must be contrasted with the
supremacy of the parliament. Supremacy of Parliament means the
unlimited capacity of the Parliament to make or unmake any law whatsoever
on any matter. Inherent in this doctrine is also the inability of the court to
question the validity of an act of parliament. Dicey has explained this
concept as the power to make or unmake any law whatever, and added
further that no person or body is recognised as having the power to override
or
set
aside
the
laws
made
by
parliament.
Parliamentary supremacy exists in the United Kingdom as the constitution is
unwritten.
Although constitutional supremacy purports to apply in Malaysia, in reality, it
is eroded by a few factors. Firstly, the special powers of Parliament to
legislate to counter subversion and emergency under Articles 149 and 150
respectively; such legislationwith certain specific exceptionsis valid even
if inconsistent with the constitution (including provisions guaranteeing
fundamental liberties). The next factor is the ease with which constitutional
amendments have been achieved since independence (because the
government in power has maintained a two-thirds majority in both Houses of
Parliament except in the 1969 and more recently the 2008 general
elections). Lastly, the judicial attitudes in the interpretation of the
constitution.
Therefore, it is quite clear that although Malaysia applies the supremacy of
the Federal Constitution, Malaysia does impliedly apply the supremacy of the
Parliament as the Parliament has certain power in amending acts.

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Legislation

What is subsidiary legislation and why does the Parliament allow it? / What is the rationale
for subsidiary legislation?
The Federal Constitution confers legislative powers on Parliament and the
State Legislative Assemblies. However, only a small portion of existing
legislation is made directly by these legislative bodies. By far, the larger
portion of legislation originates from administrative authorities which are
under the powers conferred on them by the legislature. In enacting
legislation, the legislature usually confines itself to some other agencies to
legislate further and fill in the details. The legislation enacted is called
subsidiary or delegated legislation. Subsidiary legislation is law made
through powers delegated by the legislature to a body or person via an
enabling or parent statute. In Malaysia, s.3 of the Interpretation Act 1948 and
1967 (Act 388)(Consolidated and Revised 1989) defines such legislation as
any proclamation, rule, regulation, order, notification, by-law or other
instrument made under any Act, Ordinance or other lawful authority and
having legislative effect.
There are several reasons why the Parliament allows the existence of the
delegation of legislative powers in our country. Firstly, it is to economise
the legislative time of the legislature. Besides making law, the
legislature has to discharge other functions such as holding debates on
matters of national importance and thus, they have insufficient time to enact
all the legislation, detailed in every aspect as required in a modern society.
Therefore, the legislature saves time by confining itself to broad principles in
the law it enacts, while leaving details to be filled out by a delegated agency.
Secondly, the legislature lacks expertise in technical areas and is not
readily able to legislate such matters in detail as the members of
legislative bodies are not specialists. Thus, it is best to leave legislation
which is technical to experts or administrators on the job who are well versed
with the technicalities involved.
Thirdly, the legislature is not continuously in session and its
legislative procedures are cumbersome. Delegation is necessary in
situations where laws need to be made quickly, such as in emergencies, or to
be amended or repealed quickly. For instance, s.22 of the Interpretations Act
1948 and 1967 provides that subsidiary legislation may at any time be
amended, varied, added to, revoked, suspended, or revived by the person or
authority by which it was made or, if that person or authority has been
lawfully replaced by another person or authority, by that person or
authority.

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Therefore, it is advantageous that the legislature delegates its law-making

power as our governmental bodies are multi-functional and modern
legislatures work under severe limitations.

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Critically evaluate the defects of subsidiary/delegated legislation and the various controls
available.
Subsidiary or delegated legislation is law made through powers delegated by
the legislature to a body or person via an enabling statute. According to s.3
Interpretation Act 1948 & 1967, subsidiary legislation is any proclamation,
rule, regulation, order, notification, by-law or other instrument made under
any Act, Ordinance or other lawful authority and having legislative effect.
However, the practice of delegating power to another body to make
subsidiary legislation has several defects.
First is the delegation of power to make the delegated legislation may lead
to abuse of power. The recipient of the delegated legislation will tend to be
ultra vires, where it makes power beyond the framework provided by the
parent act; the ultra vires can be either substantive or procedural.
The second defect of subsidiary legislation is lack of accountability. When
a power to make subsidiary legislation is conferred to the person or body
who has expertise, he will only be accountable and responsible to the
minister and not directly accountable to the people, as he is only performing
his statutory duty illustrated in the enabling statute. He is also not elected by
the people; therefore, it is vulnerable to abuse of power.
Third defect of subsidiary legislation is the problem in understanding the
subsidiary legislation. When the law is made by the person who is an
expert in that particular field, it is difficult for the lay person to understand
the language of the law since it is quite technical and requires advance
knowledge in that particular field.
The fourth defect of subsidiary legislation is it is inconsistent with the
doctrine of separation of power. This is because subsidiary legislation is
essentially legislation made by the executive, and executive law-making is
inconsistent with the notion of separation of power where only the legislature
has the power to make law and there cannot be any interference to the
power to make law.
Therefore, there is a need for a scrutiny and control to the subsidiary
legislation in order to protect the public from the effect of the abuse of
power. The first control is Parliamentary control or legislative control.
The legislature which grants the delegated powers by an enabling statute
may repeal or revoke the delegated powers. The enabling statute may
require legislation made under it to be laid before the legislature. As an
example, s.83(3) of Trade Mark Act 1976 requires subsidiary legislation made
to be laid before both Dewan. There must be a laying procedure for
confirmation by the legislature before the delegated legislation has any
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legislative effect. Another possible method to control as practiced in England

is to establish Scrutiny Committees which keep under review all delegated
legislation and report their findings to Parliament. However, so far, the
Malaysian Parliament has not developed any such mechanism, leaving a gap
in the legislative control of subsidiary legislation.

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The second control is judicial review or judicial control. The foundation

for such review lie in s.23(1) of Interpretation Act 1948 & 1967, which in
effect, lay down the principle that any subsidiary legislation which is
inconsistent with an act of Parliament or State Enactment shall be void to the
extent of inconsistency. The court shall have the power to review the legality
of subsidiary legislation and to declare it void on basis of ultra vires. It can be
either on the ground of substantive ultra vires or procedural ultra vires. For
substantive ultra vires, the recipient of subsidiary legislation has made law
beyond the power limit either in the subject matters, purposes, or
circumstances authorised by the enabling statute, as illustrated in case of
Major Phang Yat Foo v Brigadier General Dato Yahya bin Yusof. For
procedural ultra vires, the recipient of the subsidiary legislation has failed to
follow the mandatory procedure laid down in the parent act, for example, to
give notice to affected parties to allow them to make any objection as
illustrated in case of Datin Azizah Abdul Ghani v DBKL.
The third control is consultation. In Malaysia, there is no general statutory
provision making prior consultation a formal requirement for the making of
subsidiary legislation. Particular enabling statutes may require publication
though this is not the norm. An example is s.36(1) of the Financial Procedure
Act 1957, which authorizes the YDPA to make regulations after consulting the
Commodities Trading Commission. Though prior consultation is not a
requirement, consultation does take place on a discretionary and ad hoc
basis.
The fourth control is publication. In Malaysia, there is no general statutory
provision requiring the publication of subsidiary legislation. However,
particular enabling statutes may require publication for the subsidiary
legislation though this is not the norm. As an example, in s.17(4) of CJA 1964,
the subsidiary legislation shall be published in the Gazette and shall come
into force on the date of publication.

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Legislation

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Sources of Malaysia Law

English Law

Discuss the extent to which English law is a source of Malaysian law/ Explain the conditions for
the application of English law in Malaysia.
According to s.160(2) of Federal Constitution, under the definition of law, it
includes common law. Common law here refers to common law of England and
rules of equity and in prescribed circumstances, English statute of general
application as illustrated in s.3 of the Civil Law Act 1956. Common law means
the body of rules developed by the old common law courts and equity is the
body of rules developed first by the Lord Chancellor and later on made by Court
of Chancery. Equity came into being the supplement of common law to correct
its defects and mitigate its harshness.
S.3(1) of the CLA 1956 provides the general application of English law. It states
that the Malaysian Court shall, in the absence of local law, apply the
common law of England and the rules of equity, as administered in
England on 7 April 1956 in West Malaysia, 1 December 1951 in Sabah and 12
December 1949 in Sarawak. In sub-sections (1)(b) and (1)(c) of section 3 states
that English statutes of general application Sabah and Sarawak shall be applied.
The difference in wording between these subsections on the one hand, and
subsection (1)(a) on the other hand perpetuated a controversy which earlier
arose from s.3(1) CLO 1956 which was word for word the same as s.3(1)(a) CLA
1956. Are English statutes of general application applicable in West Malaysia?
Two views, each as cogent as the other, exist. Professor Bartholomew, writing on
s.3(1) CLO 1956, holds that such English statutes are applicable. Joseph Chia, in
discussing the corresponding provision in the CLA 1956, expresses a contrary
opinion. Judicial opinion supports the Joseph Chias view.
In 1959, the Court of Appeal in Mokhtar v Arumugam, on the question whether
damages in the matter of interest for delay in returning specific goods could be
awarded in Malaysia, held that such a remedy, being a creature of the English
statute, is not available here. Common law and rules of equity (and in Sabah
and Sarawak, English statutes of general application) apply under s.3(1) subject
to the following qualifications: absence of local legislation, cut-off dates, and
subject to local circumstances.
Firstly, English law can be applied if there is there is lacuna in local law. This
qualification is contained in the opening proviso of this section. This proviso is
merely the statutory recognition to the application of English law to fill the
lacunae of loopholes in our local law. In the case of AG Malaysia v Manjeet Singh,
where the court held that in the absence of any specific local legislation
concerning contempt of court, the common law shall be applied under s.3 CLA
1956.
The second qualification for application of English law is cut-off dates as only
common law and rules of equity (and in Sabah and Sarawak, English statutes of
general application) existing in England on the dates specified: 7th April 1956
for West Malaysia, 1st December 1951 for Sabah and 12th December 1949 for
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Sarawak, can be applied to fill the lacunae in the law as illustrated in the case of
Lee Kee Choong v Empat Nombor Ekor. In this case, the Privy Council affirmed
that any subsequent march in English law in England would not be embodied in
local legislation after the cut-off dates. The court also held that their Lordships
should not consider the developments in English law after 1956.
However, in practice the Courts may follow developments in English common
law after such dates. English decision made after such dates, though not
binding, are persuasive as illustrated in the Privy Council decision in Jamil Harun
v Yang Kamsiah. In this case, it was held that it is correct for the Malaysian court
to decide and refers to English case law, since it is persuasive in nature. This
practice has allowed for continuing reception of English law in Malaysia.
The next condition for the application of English law in Malaysia is suitability to
the local circumstances. English law is applicable only to the extent permitted
by local circumstances and inhabitants, subject to qualifications necessitated by
local circumstances. This can be seen in the case of Syarikat Batu Sinar v UMBC
Finance where the court held that the English that would like to be applied in
Malaysia must be suitable with the local circumstances or local inhabitants. The
judge also added that we should develop our own common law by directing our
mind to the local circumstances and local inhabitants.
A more specific application of English law can be seen in s.5 of the CLA 1956.
This section provides the application of English law in commercial
matters. In s.5(1), for the questions arise which have to be decided in West
Malaysia, other than Penang and Malacca, the law that shall be applied on
commercial matters shall be the same as administered in England in the like
case at the date of this Act coming into force. In subsection (2), for the
questions arise which have to be decided in Malacca, Penang, Sabah and
Sarawak, the law that shall be applied on commercial matters shall be the same
as administered in England in the like case at corresponding period.
The interpretation of s.5 has caused much academic debate as there seem to be
two conflicting approaches to its interpretation. In Seng Djit Hin v Nargudas
Purshotumdas & Co, the Privy Council held that English statutes were applicable
to Singapore in matters affecting mercantile law. However, in Shaik Sahied v
Sockalingam Chettiar, the Privy Council held that the Moneylenders Act of 1900
and 1927 did not apply to the Straits Settlements. There are therefore, two
conflicting approaches to the interpretation and application of s.5 of the CLA
1956. Fortunately, the problem is now more theoretical than real because local
legislation has been enacted concerning many commercial matters, thus
reducing reliance on the section.
S.6 of the CLA 1956 expressly excludes the application in Malaysia of the
English law concerning land tenure. This section was enacted because it
intended to prevent the wholesale application of English law under s.3(1) to land
matters in Malaysia. This was because there already existed local legislation
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concerning land matters, when the CLO was enacted in 1956. Such local
legislation incorporated the Torrens system in the FMS and each of the UMS, and
the deeds system (of English land law) in Malacca and Penang.
To conclude, s.3(1) of the CLA 1956 provides a general application of English law
in Malaysia subject to three conditions, while s.5 and s.6 provides for specific
application of English law in Malaysia regarding commercial matters and land
respectively. Therefore, it is clear that English law is still a source of law in
Malaysia.

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Islamic Law

Discuss the position of Islam under the Federal Constitution.

Constitution plays an important role in the administration of the country. This
is because all the institutions in the country and their powers are put in
details in the constitution. However, if we go further, there is no any
constitution in the world spells out in details everything in that document. In
this uncertainty, the function of the court becomes important. This can be
seen when there is litigation and the court will help in order to determine and
validate what are supposed to be the practice or vice versa. Nevertheless,
not all the judgments of the court could settle the issues; it is not rare that
the judgments by the court are more confusing and fail to solve the problems
especially in long-term period.
The same scenario had also occurred in the discussion regarding the position
of Islam in the constitution. The position of Islam in the constitution is
generally limited. In Article 3(1) of the Federal Constitution, it is stated
that Islam is the religion of the Federation but other religions are free to be
practiced. The interpretation of that provision can be found in the official
Report of the Legislative Council Debate dated 1st May 1958 where
Malaysias first prime minister, Tunku Abdul Rahman, clarified that this
country is not an Islamic State as is generally understood, and Islam is
merely the official religion of the land. This interpretation is further affirmed
in the case Che Omar bin Che Soh v PP. Mandatory death penalty for drug
trafficking offences and Firearms (Increased Penalties) Act 1974 were held
valid despite not being compatible with Islamic law. It was argued that the
death penalty was unislamic and therefore contrary to Article 3 of the
Federal Constitution. The Supreme Court rejected this argument and held
that Islamic law was to be confined to personal law such as marriage,
divorce, and inheritance for Muslims.

However, there exist a freedom of religion in Malaysia under Article 11.

Provides that every person has the right to profess and practise his religion
and, subject to clause (4), to propagate it. According to clause (4), State law
(and in respect of the Federal Territories, Federal law) may control or restrict
the propagation of any religious doctrine or believe among persons
professing the religion of Islam.
In fact, Islamic law is not even included in the definition of law under Article
160 of the Federal Constitution, where law is defined as the written law,
common law, and any custom or usage having the force of the law.

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Even this Article 3 (1) recognised Islam as the religion of the Federation, at
the same time subsection 4 of the same Article limits it. It says:

"Nothing in this Article derogates from any other provision of this

Constitution."

We have two systems of court civil and Syariah and the Syariah Court has
the limited jurisdiction, thus, the above impression is more unbeatable.
Nevertheless, the status of Islam compares to other religions which are free
to be practised by their followers is higher and more recognised by the
government.

We can see this in Article 12 (2) of the Federal Constitution when it gives
rights "for the Federation or a State to establish or maintain or assist in
establishing or maintaining Islamic institutions or provide or assist in
providing instruction in the religion of Islam and incur such expenditure as
may be necessary for the purpose." In the case of Meor Atiqulrahman bin
Ishak & Ors v. Fatimah Bte Sihi & Ors, Mohd Noor Abdullah J. interpreted
'Islam is the religion of the Federation, but other religions may be practised
in peace and harmony' as Islam is the principal religion compared to other
religions which are practised in this country like Christianity, Buddhism,
Hinduism and others. Islam is not at par with other religions. It occupies a
superior position, moving first, situated in the field and its voice clearly
heard. If it is not like that, Islam is not the religion of the Federation but it is
one among other religions which are practised in this country and every
person is equally free to practise any religion which he believed, no privilege
between one over the other. However, whether the position of Islam, which is
said to be higher, is truly implemented, it remains to be seen.

According to Hairuddin Megat Latif, the position of Islam in the concept of

federalism is not so important. This is based on the fact that the said powers
are mentioned under the State List of Ninth Schedule of the Federal
Constitution, while the other important matters like defence, internal
security, criminal law and the administration of justice, finance, etc. are
listed under the Federal List.
Based on this provision, the power to legislate any laws relating to Muslims
regarding the matters included in the State List is within the jurisdiction of
the state. Thus, every state has the powers, and because of this, it is a fact
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Islamic Law

that the Islamic Law Enactments are different between one state to another.
Moreover, the fatw relating to some issues are different between one state
to another. These Islamic Law Enactments are not only confusing on the
public but also affects the firmness of the fatw itself and the Muslim image
as a whole.
The effect of the lack of uniformity of the laws can be seen from the event of
the different day in the celebration of the Hari Raya Aidilfitri in Perak and
other states. This occured in 1982, when the state of Perak celebrated it one
day earlier from the date announced by the Yang di-Pertuan Agong. The
difference also can be seen from the madhhab point of view when for
example, the state of Perlis does not state that it follows which madhhab,
while other states announce that they follow the madhhab of Shfi`.

Although Islam is the religion of the Federation, there is no head of the

Muslim religion for the whole of the Federation. The King (Yang di-Pertuan
Agong - YDPA) continues to be the Head of Islam in his own state, and under
the constitution also, the head of Islam in the Federal Territory, Malacca,
Penang, Sabah and Sarawak as these states have no Malays Rulers of their
own. The Kings representatives in these states, known as Yang di-pertuan
Negeri, are effectively the patrons of Islam. The remaining nine states of
Malaysia have each their own Ruler, or Sultan, as the Head of Islam in that
states. The Conference of Rulers have agreed, however, that in respect of
ceremonies and observances that cover the whole of the Federation, the
King is authorised to represent each and everyone of the Rulers as the Heads
of religion in their states.

The various state constitutions provide that the Ruler may act in his
discretion in the performance of any functions as the patron of Islam, but it
appears that the YDPA may only act on advice in performing his functions as
the patron of religion in Malacca, Penang, the Federal Territory, Sabah, and
Sarawak.

Even it is said that the state government has a power to enact the laws for
Muslims and can be enforced to them, it is only relating to the Muslims
personal laws and family only. These laws, if there are related to criminal law,
depend on the Syariah Courts (Criminal Jurisdiction) Act 1965. This means
that even the state government can enact the laws for Islamic criminal
matters, their jurisdiction is still limited. For example, the Muslim who
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commits zin, cannot be punished as prescribed by the Islamic punishment

as mentioned in the Qur'n.

The state government also cannot implement or enforce the Islamic law
other than what have been mentioned under the State List because it is
against Article 74 (2) of the Federal Constitution, which reads as:

Without prejudice to any power to make laws conferred on it by any other

Article, the Legislature of a state may make laws with respect to any of the
matters enumerated in the State List (that is to say, the Second List set out
in the Ninth Schedule) or the Concurrent List.

If this happens, the said laws will be regarded as invalid by the court because
the laws, which are against the Federal Constitution, are void. This is
mentioned in Article 4 (1) of the Federal Constitution, which reads as:

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.

Based on the above explanation, it is found that the Islamic laws are only
accepted to be implemented in a very limited way, and even in this limited
room it still be interrupted. This situation is not so strange because the main
objective of making Islam as the religion of the Federation is only for the
formal functions such as to allow prayer to be done in a good manner, the
coronation function of the Yang di-Pertuan Agong, etc.

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