CONSTITUTIONAL

LAW








SOURCES of
CONSTITUTIONAL
LAW
SOURCES OF MALAYSIAN
CONSTITUTIONAL LAW
FEDERAL
CONSTITUTION
STATE
CONSTITUTION
LEGISLATION
SUBSIDIARY
LEGISLATION
WRITTEN
LAW
SOURCES OF MALAYSIAN
CONSTITUTIONAL LAW
UNWRITTEN LAW
ENGLISH
LAW
CUSTOM
JUDICIAL
DECISION
ISLAMIC LAW
Applicable to Muslims & is administered by a separate
systems of courts Syariah Court.

Sources of Islamic Laws :

a) Al Quran,
b) Al Hadith
c) Ijma & Qiyas

FEDERAL CONSTITUTION
Article 4(1) of FC : Supreme law of the land.
It provides the basic or fundamental rights of an individual.
It applies to all states in the federation.
Article 162(6) of the Federal Constitution.
Constitutional supremacy is maintained by giving to the
superior courts the power & duty to invalidate any legislative
or executive act that violates any of the article 183 & 13th
Schedules of the Constitution.


STATE CONSTITUTION
Each states in Malaysia has its own individual constitution
which provide for a single chamber Legislative Assembly
in each state.
This constitution regulates the government of that particular
states. e.g. Selangor Constitution.
Article 71 (4) of FC.

LEGISLATION
In Malaysia, laws are legislated by the:
a. Parliament at Federal level
b. State Legislative Assemblies at State level
Procedure:
Article 62 (3) of Federal Constitution.


LEGISLATION
EXCEPTIONS : (simple majority not applicable)
a. Articles 159 & 161E.
b. Article 2 (b).
c. Article 66 (4A).
d. Article 68.
e. Article 76(1) of Federal Constitution.
f. Article 38(4) of Federal Constitution.
g. Article 89 (1) of Federal Constitution.
Schedule 13th, Sections 10-11.

Articles 74, 95B & Schedules 9-10
FEDERAL LIST
external affairs
defence
internal security
civil law
administration of justice
citizenship
machinery of
government
finance & taxation
trade & industry
shipping, Fisheries
energy, Transport
education, Health
labour & professions
social security
aborigines
water supply, rivers &
canal

STATE LIST
state government
Islamic law
Malay custom
Islam
local government
land
riverine fisheries
forestry
roads & bridges
public nuisances
agriculture, housing
Malay reservations
water
SABAH /SARAWAK
(STATE)
native law, posts,
harbours, libraries,
immigration


CONCURRENT LIST
planning
soil erosion
scholarship
public health
social welfare
national parks & wildlife
Drainage & irrigation


SABAH/SARAWAK
(CONCURRENT)
personal law
some fisheries
some shipping
some energy
elections


SUBSIDIARY LEGISLATION
Also known as subordinate legislation or delegated
legislation.

Example:
Person/body: Minister of Communications
Parent Act : Communications & Multimedia Act 1998
Subsidiary Legislation : Communications & Multimedia
(Licensing) Regulations 1999

JUDICIAL PRECEDENT
1. Definition

a. Precedent : A judgement or decision of a court of law
cited as an authority for the legal principle embodied in its
decision
b. Doctrine of Judicial Precedent : Doctrine of Stare
Decisis i.e. let the decision stand. In making a decision on
a case, the judge must follow what has been previously
decided by the superior court in similar situations.
This doctrine works in 2 ways:
i. Vertically
ii. Horizontally


JUDICIAL PRECEDENT
2. General Rule

The general rule regulating the hierarchy of precedent is
based on the principle that decisions of higher courts bind
lower courts & some courts are bound by their own
decisions.

JUDICIAL PRECEDENT
3. Influential Factor

a. Origin of the decision : To be binding, a precedent must
originate from a court of appropriate or higher rank in the
same hierarchy.
b. Content of the decision consists of :
i. Ratio Decidendi (binding)
ii. Obiter Dicta (non-binding)

JUDICIAL PRECEDENT
4. Application

a. Chang Min Tat FJ
: PP v Datuk Tan Cheng Swee & Anor [1980] 2 MLJ 276

b. Lord Gardiner




JUDICIAL PRECEDENT
5. Non-application

Circumstances
Judges may ignore or overrule precedent laid down by a lower
court, where the case is on appeal.

6. Advantages

It leads to an element of certainty in the law



JUDICIAL PRECEDENT
7. Disadvantages

Due to hierarchy of binding precedent being established, the
law becomes rigid to some extent




.