WRITTEN LAW

Introduction:

There are 2 sources of law in Malaysia which can be classified into written law and unwritten law. The written law includes Federal Constitution, State Constitutions, Legislation and Subsidiary Legislation.

1.Federal Constitution:

The Federal Constitution is the supreme law of Federation (Malaysia).

By virtue of Article 4(1) of the Federal Constitutions the Constitution is the supreme law of the Federation and any law passed post Merdeka Day that is inconsistent with this Constitution shall be void.

In short, Federal Constitution is regarded as the main source of written law, which should be referred in understanding the Malaysia Legal System.

2.State Constitution:

Every State in Malaysia has its own Constitution, which provide the regulation of the State Government.

3.Legislation: 

The Parliament and State Legislative Assembly is responsible to enact law respectively at the federal level and state level. The law enacted on pre-Merdeka day and post-Merdeka day is respectively known as Ordinances and Acts. Whereas, law enacted by the State Legislative Assemblies is called Enactments. However, Sarawak is an exceptional state where the laws are called Ordinances. The sources of legislation in the states may differ from one to another.

Legislation is used as a means of repealing, amending, enacting or codifying the law. But however, Federal Constitution states if there is any law that is inconsistent with a Federal law the Federal law should prevail.  

4.Subsidiary Legislation:

Subsidiary legislation is also known as subordinate legislation or delegated legislation.

Subsidiary legislations are any proclamation, rule, regulation, order, notification, by law or other instrument made by an authority under powers conferred on it by a statute/act.

What is the needs for delegated legislation?

-due to insufficient law provided by parliament and state legislatures;

-subsidiary becomes very important to deal with everyday matters;

(Example: parking by-laws which is enacted by the local councils under the authority of the State Local Government Enactments)

-to economize the legislative (law-making) time of legislature;

-lacks of expertise in technical areas and therefore the states needs a prompt and swift solution during an emergency;

-delegated legislation is flexible and variable compared to the ordinary legislation.

Generally, any subsidiary legislation is void if it is enacted in contrary to the parent Act or the Federal constitution. Hence, the court is empowered to declare any delegated legislation to be invalid if is contrary to the constitution. Furthermore, if there is a no mechanism or control, the power may be misused and affect the legislature. The Legislature is empowered to supervise the delegated legislation in order to avoid misuse of the delegated Legislation.

Differences between Federal Constitution and State Constitutions:

The Federal Constitution distinguish the legislature powers between Federal Government (Parliament) and the States (State Legislative Assembly) that divided into Federal, State and Concurrent List.

Parliament can enact laws on matter listed in Federal List. The State can enact laws on matter listed in State List.  Whereas both Federal Government and States Government can enact laws on matter listed in the Concurrent List. If the matters are not in any lists, the matters are within the State Power.

If any law passes by the State Government is inconsistent with the Federal law the Federal law should prevail and any laws which contravene to the Federal Constitution may be declared as null and void by the Courts.

Conclusion:

The written laws in Malaysia are considered as the most important reference in understanding the Malaysia legal system. It is essential that one should understand the legal history of each law concerned before reading and explore it.