sources of law (written law)

Question 1

the sources of law

Answer 1

-written law
-unwritten law
-islamic law

Question 2

unwritten law

Answer 2

Unwritten Law
- Does not literally Law mean that the law is not written
down;
- It is called ‘unwritten law’ because the law is not consolidated in a single document.

Question 3

written law

Answer 3

• When the law is consolidated in a single document;
  e.g. FC, Acts of Parliament, State Enactments, Subsidiary Legislation

Question 4

sources of written law

Answer 4

• Federal Constitution
• State Constitution
  +
  -Statutes

Question 5

sources of unwritten law

Answer 5

Unwritten Law
- English Law
- Judicial Precedent
+
- Custom

Question 6

Written Law:The Federal consitution

Answer 6

 Article 4(1):
“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.”

Question 7

case for FC

Answer 7

Ah Thian v Governmentt of Malaysia:
“The power of Parliament and State Legislature is limited by the Constitution and they cannot make any law they please.”

Question 8

federal constitution

Answer 8

 The supreme law of the Federation;
 The validity of all other laws are measured
according to the provisions in the FC;
 All laws must conform to the FC – otherwise invalid. See for e.g. Mamat bin Daud v Govt of Malaysia; Dewan Undangan Negeri Kelantan v Noordin bin Salleh.

Question 9

Sources of law contained in FC

Answer 9

1. Powers of the Federal and State Government
   See 9th Schedule, List I, II and III
2. Provisions on Fundamental Liberties
   See Part III – article 5 to 13

IMPORTANT: Any law passed by Federal and State legislature cannot contravene FC

Question 10

written law: state constitution

Answer 10

1. Each State in Malaysia has its own Constitution for the governance of that State which contains
2. Provisions stated in 8th Schedule of FC (art 71) such as provisions on Ruler, Executive Council, Legislature, Legislative Assembly etc.

Question 11

written law: statutes

Answer 11

1. Statute/Legislation
   - Law made by
   - Legislature
   - Persons or bodies authorised by legislature to make law

Question 12

legislature

Answer 12

Legislature
Federal and State legislature Federal legislature = Act State Legislature = Enactment

Question 13

other persons/bodies

Answer 13

Subsidiary or delegated legislation
Made by persons/bodies authorised by a primary law/parent Act
Law made by the Executive

Question 14

statutes terminology

Answer 14

Act
* Law passed by Federal Legislature/Parliament
* Primary law

Enactment
* Law passed by State legislature;
* Primary law

Ordinance
* Law passed by Parliament between 1/4/46- 10/9/59;
* Law passed in Sarawak;
* Law passed by YDPA during emergency under art 150 FC

Question 15

Subsidiary Legislation

Answer 15

 Law made according to the power delegated by the legislature to a body or person by an enabling or parent statute;
 Section 3 Interpretation Act defines SL 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”

Question 16

what is subsidiary legislation known as?

Answer 16

1. delegated legislation
2. subordinare legislation
3. secondary legislation

Question 17

steps for subsidiary legislation

Answer 17

(1). Legislature passed Parent Act (Enactment/Ordinance) that authorised the relevant authority to make a subsidiary legislation;
(2). The authority then makes the SL in the form of either Rules, Regulations, orders, Notifications, By-Laws etc.)

Question 18

steps subsidiary legislation

Answer 18

legislature > makes > parent act > authorises > minister (executive) > makes > subsidiary legislation

Question 19

example of subsidiary legislation

Answer 19

S.77 of Legal Profession Act 1976 empowers the Bar Council to make rules on conduct, etiquette and discipline of advocates and solicitors;

• The Legal Profession (Practice & Etiquette) Rules 1978

Question 20

more recents example of subsidiary legislation

Answer 20

►Several subsidiary legislation have been passed under the Prevention and Control of Infectious Diseases Act 1988, including:
a. Prevention And Control Of Infectious Diseases (Measures Within Infected Local Areas) Regulations 2020;
b. Prevention And Control Of Infectious Diseases (Measures Within Infected Local Areas) (Movement Control) Regulations 2021;
c. Prevention And Control Of Infectious Diseases (Measures Within Infected Local Areas)(conditional Movement Control) Regulations 2021;
d. Prevention And Control Of Infectious Diseases (Recovery Movement Control) Regulations 2021;
e. Prevention And Control Of Infectious Diseases (Compounding Of Offences) (Amendments) Regulations 2021

Question 21

advantages of subsidiary legislation

Answer 21

 (1). Flexible – tedious parliamentary process of passing of a statute can be avoided;
 (2). In some areas, legislature may not have the required expertise – e.g. on environmental issues;
 (3). Saves time – legislature only deal with broad issues while the details are left the relevant body.

Question 22

disadvantages of subsidiary of legislation

Answer 22

• doctrine of seperation of powers
  -possibility of abuse