sources of law (written law) Flashcards
the sources of law
-written law
-unwritten law
-islamic law
unwritten law
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.
written law
- When the law is consolidated in a single document;
e.g. FC, Acts of Parliament, State Enactments, Subsidiary Legislation
sources of written law
- Federal Constitution
- State Constitution
+
-Statutes
sources of unwritten law
Unwritten Law
- English Law
- Judicial Precedent
+
- Custom
Written Law:The Federal consitution
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.”
case for FC
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.”
federal constitution
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.
Sources of law contained in FC
- Powers of the Federal and State Government
See 9th Schedule, List I, II and III - Provisions on Fundamental Liberties
See Part III – article 5 to 13
IMPORTANT: Any law passed by Federal and State legislature cannot contravene FC
written law: state constitution
- Each State in Malaysia has its own Constitution for the governance of that State which contains
- Provisions stated in 8th Schedule of FC (art 71) such as provisions on Ruler, Executive Council, Legislature, Legislative Assembly etc.
written law: statutes
- Statute/Legislation
- Law made by
- Legislature
- Persons or bodies authorised by legislature to make law
legislature
Legislature
Federal and State legislature Federal legislature = Act State Legislature = Enactment
other persons/bodies
Subsidiary or delegated legislation
Made by persons/bodies authorised by a primary law/parent Act
Law made by the Executive
statutes terminology
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
Subsidiary Legislation
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”
what is subsidiary legislation known as?
- delegated legislation
- subordinare legislation
- secondary legislation
steps for subsidiary legislation
(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.)
steps subsidiary legislation
legislature > makes > parent act > authorises > minister (executive) > makes > subsidiary legislation
example of subsidiary legislation
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
more recents example of subsidiary legislation
►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
advantages of subsidiary legislation
(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.
disadvantages of subsidiary of legislation
- doctrine of seperation of powers
-possibility of abuse
