24/7 Customer support here

Law from Malaysian Perspective

   In a society with certain structure it is definite that different individuals will have different opinions which have to be coordinated by law. Laws is a type of glue stick that holds society together, so that they can live peacefully. For example, law of criminal helps to safeguard the personal property and lives. Law of contract helps to ensure people keep on their promises

   Law protects basic individual rights and freedom such as liberty, equality and freedom of speech. It prevents individuals in powerful position from taking an unfair advantage of other people.

   Law ensures a safe and peaceful society, in which individual rights are preserved. Certain governments have cruel laws, where police and armies arrests and punishes people without a trial in the court.

   Law applies to every persons, public authorities, governmental departments, private bodies, profit making organizations as well as non-governmental organizations.
In Malaysia, the legislative body which is made up of Lower House and the Upper house, both which consists of representatives of people, makes law. The executive body which is headed by YDPA, who is assisted by Prime Minister, enforces the law, so that everyone will follow. The judiciary body judges law. These three bodies form the Malaysian government. The law, however, is an independent entity by itself although it is made, enforced and judged by the government.

   Law changes as needs of the society changes. As a result, it appears to be unjust or unfair at times, for the aim of attaining justice in Malaysian society. The government and law should act in the interest of society and these bodies should not stand distinctively from the society in order to maintain peace and balance of power between people and government.

   But, whatever the case may be, the law can only proved to be supreme only by society. People have to know their scope of rights and freedom granted to them by government and must be able to demand for their rights whenever injustice takes place.
Malaysian sources of law comprises laws that have emerged from three significant periods; the Malaysian history originating from Malacca Sultanate to spread of Islamic religion to Malacca and South east Malaysia and finally the colonial rule of British over the Malayan land which led to the sources of Malaysian as can be seen today. Basically, it contains the historical lessons and values, the decision held previously by the superior courts and the customary rules of diversified ethnics in Malaysia. The source of law can be classified into written law, unwritten law and Muslim law.
Written law is the law written and gazetted to be followed by the individuals of a State. It is made up of Federal constitution, State constitutions, legislations and subsidiary legislations.

  Federal Constitution is said to be the highest legal authority of land. The Constitution was drafted by the Reid Commission in 1956 with 5 representatives from India, British, Pakistan and Australia. The Constitution came into force following the independence on August 31, 1957. It consists of 15 Parts, 183 Articles and 13 Schedules. Article 4(1) state that the constitution is the supreme law of the federation and any law passed after Merdeka Day which is inconsistent with this constitution shall, to the maximum extent of inconsistency, be void. But, Article 159 and 161E provides provisions to allow the constitution to be amended with the condition of 2/3rds majority in both houses of Parliament agreeing to the amendment. Some may think that the constitution is not supreme because of this conflict. The constitution amended based on the needs of the current situation of the country and the people to bring benefits, holiness and and goodness to the public. This is why the constitution is still placed in a high position. It lays the fundamental rights of individuals and the scope of powers of the Federal and State governments. The government, even though having much authority, is still bound by the Federal Constitution and cannot go against it, e.g. the government cannot take away a person's citizenship without any reason, force people to work without pay or imprison a person not according to the laws. If any person feels that the government has taken action against him or her wrongfully, he or she can take the government to court.

   State Constitution is the same as Federal Constitution, except it is set by the states in Malaysia. The 8th schedule of the Federal Constitution mentions certain provisions that are to be included in the State Constitutions such as state executive members, finance, the state legislative assembly, roles of the Sultan or Yang di-Pertua Negeri, and etc. Article 71 mentions that all state constitutions must contain their provisions, otherwise the Parliament can enforce those provisions or abolish any provision in the state constitution that contradict with those provisions.

   Legislations are the laws that are established by the Parliaments at federal level and by the State Legislative Assemblies at the state level. In Malaysia, the legislative gets its authority from the Federal Constitution. It mentions the scope of the Parliament and the State Assembly. If the Parliament (or any State Assembly) makes a law which is not in its scope of authority or contradicts with the constitution, the courts can declare that as null and void. On the other hand, the courts would have to use laws made by the Parliament or State Assembly if the law is regarding issues related to their authority and conforms to the constitution. Article 74 of Federal Constitution states that parliament may make law with referring to matters provided in the federal list and state legislatives may make law with referring to matter provided in the state list. Concurrent list is in the scope of enactment by both parliament and state legislatives. State list, federal list and the concurrent list are contained in the Ninth Schedule of Federal Constitution. If there are any contradictions between federal and state laws, the federal law shall prevail and state law is void to the scope of inconsistency. This was provided by Article 75 of Federal Constitution.

   Subsidiary Legislations are made by the persons or bodies who are authorized to by the legislatures. According to Interpretation Act 1967, subsidiary legislations are defined as rules, regulations, by laws, order, notifications made under legislations. Legislatures provide the basic law. It has insufficient time to expand the scope of law which can be applied by the bodies and persons to govern day-to-day matters. So the authority is delegated to them to make their own laws, but there should not be any contradictions between the subsidiary legislations and the basic law or Federal Constitution. If such, the subsidiary legislation can be void. There is an exception to this. Parliament may pass the power to legislate any subsidiary legislation during emergency, even if there are any contradictions with the Federal Constitutions involved, due to some exception in Article 150 of Federal Constitution.

   The related case is Eng Keock Cheng v. Public Prosecutor. In this case, Eng Keock Cheng who was convicted committed 2 offences during emergency period and was ordered to put to death. He appealed on the ground that there were neither a preliminary enquiry nor a jury adopted by High Court which were required under Criminal Procedure Act and claimed that the procedures set out in Emergency (Criminal Trial) Regulations 1964 was invalid as it contradicts with Article 8 of Federal Constitution.

   1  2

BACK TO LAW