Week 7

Legislation
What is a legislation?

• Legislation refers to the laws which have been formally passed by

either the Parliament (at the Federal level) or the State Legislative
Assemblies (at the State level).

• Legislation passed by Parliament is generally called an Act, while

those passed by the State Legislative Assemblies are called
Enactments (with the exception of Sabah and Sarawak, where they
are called Ordinances).
• The names of the legislations can be found under Section 3 of the
Interpretation Acts 1948 and 1967 (Act 388), where it is provided
that ‘State laws are called Enactments, including those made by the
former Malay States before Merdeka Day.

• The only exception to this is the State of Sarawak whose laws are
still termed Ordinance’. Similarly, according to Article 160(2) of the
Federation Constitution, it is provided that ‘ ‘Enactment’, whe re the
expression occurs in the Eight Schedule, means a law made by the
Legislature of a State’.
Who are the legislative bodies in Malaysia?

• There are two legislative bodies in Malaysia.

• They are the Parliament and State Assemblies.

• According to Article 73 of the Federal Constitution, ‘In exercising the

legislative powers conferred on it by this Constitution: (a) Parliament
may make laws for the whole or any part of the Federation and laws
having effect outside as well as within the Federation; and (b) The
Legislature of a State may make laws for the whole or any part of
that State’.
• The legislative power of the Parliament can be found in the case of
Government State of Penang & Anor v Government of Malaysia &
Anor [2014] 6 MLJ 322, where the Federal Court observed that the
‘Ninth Schedule (of the Federal Constitution) clearly draws a clear
demarcation of powers between the Federal Parliament and the
State Legislature. It is also obvious in the Ninth Schedule that the
local government election is expressly mentioned as a subject
matter within the competency of the State Legislature. However,
under Art 76(4) of the Federal Constitution, the Federal Parliament
can still legislate laws with respect to any matter under the State List
for the purpose of ensuring uniformity of law and policy’.
• The legislative power of the State Assemblies can be found in the
case of Menteri Dalam Negeri & Ors v Titular Roman Catholic
Archbishop of Kuala Lumpur [2013] 6 MLJ 468, where the Court of
Appeal declared that ‘the right of the State Legislature to enact laws,
to ensure the protection and sanctity of Islam, under art 11(4) of the
Constitution was constitutional. Such constitutional right of the
states, especially where there are Rulers who are heads of the
religion of Islam, fortified the position of Islam in the Federation that
it should be immune to any threat or attempt to weaken Islam's
position as the religion of the Federation’.
What is the legislative process in Parliament?

• Before Parliament can make a law, there are procedures that need to be
followed.

• First and foremost, a law need to be drafted.

• This draft is prepared by either a particular government minister or ministry with

the assistance of the Attorney-General’s Department.

• This draft which is known as a ‘Bill’ will be discussed among the ministers in the
Cabinet first.

• If they agree with the Bill, it will be presented to the Minister concern who will
then take it to the Parliament to fix a date for a process known as First Reading.
• During the First Reading, the Minister will introduce the Bill to the
members of the House of Representatives, where he/she will read
out the short title of the Bill. During this session, all the members of
the House will each be given a copy of the Bill and a notice that the
Bill will be debated during the Second Reading will be given.
• On the date of the Second Reading, the Bill will be discussed and debated
extensively. During this session, a vote will be taken to see whether
members of the House are agreeable to this Bill or otherwise. A vote of
2/3 majority is required for the Bill to through the next stage. If it is not
obtained, then the Bill will be rejected. In the event that the Bill obtained a
2/3 majority, then it will go through a Committee stage.

• At the Committee stage, the Bill will be discussed informally by all

members of the House. During this process, the technical details of the
Bill will be discussed. Once all the technicalities have been resolved, the
Bill will then go to the next process, known as the Third Reading.
• At the Third Reading, members are again required to vote for or
against the Bill. If the 2/3 majority have been obtained, then the Bill
is considered to be passed by the House of Representatives.

• Once passed by the House of Representatives, it will be forwarded to

the House of Senate where similar process will be followed. If the
House of Senate agrees to the Bill, the Bill will then be presented to
the Yang di-Pertuan Agong for his royal assent. Assent is said to be
given when the Yang di-Pertuan Agong fix a Public Seal to the Bill.
• If the Yang di-Pertuan Agong did not, for whatever reasons, give his
assent to the Bill within 30 days after the Bill has been presented to him,
the Bill shall become law at the expiration of the 30 days.

• Once the Yang di-Pertuan Agong has given his royal assent or 30 days has
elapsed, the Bill will become law. This law however, can only come into
force after it has published or gazetted first. This can be seen under
Article 66 (5) of the Federal Constitution where it is provided that “A Bill
shall become law on being assented to by the YDPA or as provided in
Clause (4A), but no law shall come into force until it has been published,
without prejudice, however, to the power of parliament to postpone the
operation of any law or to make laws with retrospective effect.”
• The case to highlight the legislative process where the Bill needs to be
table before both Houses can be found in the case of
INSPECTOR-GENERAL OF POLICE & ANOR v LEE KIM HOONG [1979] 2
MLJ 291, where the Court of Appeal in this case is satisfied from the
evidence that the Ordinance was in fact tabled before both Houses:
Dewan Rakyat and Dewan Negara. The Votes and Proceedings of the
Senate for February 20, 1971, showed that the Ordinance was laid before
that House that day (see page 3, item 6), and those of the lower House for
February 24, 1971, that it was laid before that House that day. Thus it is
clear, in the court’s judgment, that the Ordinance has been properly laid
before both Houses as is required by the Constitution and it therefore has
the force of law’.
• The legislative process of the Parliament was highlighted in the case of
Puncak Niaga (M) Sdn Bhd & Anor v Sykt Sidhu Adek Beradek Sdn Bhd &
Anor [2015] 8 MLJ 586, where the High Court Shah Alam observed the
gazette requirement. The Court highlighted s 18(2) of the Interpretations
Act 1948 and 1967 which prescribes that:
• (1) The Gazette shall be published in parts as follows:
• (a) a part to be known as the Acts Supplement which shall be published
as and when necessary and which shall contain all Acts of Parliament and
all Ordinances promulgated by the Yang di-Pertuan Agong;
• (b) a part to be known as the Legislative Supplement A which shall be
published as and when necessary and which shall contain all Royal
Proclamations, orders, rules, regulations and by-laws;
• (c) a part to be known as the Legislative Supplement B which shall
be published as and when necessary and which shall contain all
subsidiary legislation other than that which is required to be
published in the Legislative Supplement A;
• (d) a part to be known as the Bills Supplement which shall be
published as and when necessary and which shall contain all Bills;
• (e) a part which shall contain all matter which is required to be
published in the Gazette or which the Government deems it
necessary to publish for general information other than matter which
this subsection requires to be published in the other parts;
• (2) Publication in the official Gazette of Malaysia shall constitute
sufficient notice of any matter required to be published in the
Gazette by or under any federal law or required to be published in the
Sabah Government Gazette or the Sarawak Government Gazette by
or under any enactment of those States which has been declared to
be a federal law.
What do the Parliament and State Legislative Assemblies need to ensure
when the make any law?

• Parliament and State Legislative Assemblies must ensure that the

law that they make must not be inconsistent with the Federal
Constitution.
• This is because, Parliament and the State Legislatures are not
supreme. The law that they make must be consistent to the Federal
and State Constitutions.
• Parliament can enact laws on matters enumerated in List I of the 9th
schedule of the Federal Constitution while state is competent to
enact laws on matter in List II. List III are within the concurrent
competence of both authorities.
• All legislations, whether made by the Parliament or State Legislative
Assemblies must be consistent with the Federal Constitution.
• This was emphasized in the case of Nik Noorhafizi Nik Ibrahim &
Ors V. PP [2014] 2 CLJ 273, where the Court of Appeal emphasized
that common law position of parliamentary supremacy has limited
relevance in our constitution which is founded on constitutional
supremacy. All legislations must be made subject to the constitution
and amenable to the scrutiny of the Superior Courts. Here we have a
written constitution. The power of Parliament and of State
Legislatures in Malaysia is limited by the Constitution, and they
cannot make any law they please. Under our Constitution written law
may be invalid on one of these grounds:
• (1) in the case of federal written law, because it relates to a matter
with respect to which Parliament has no power to make law, and in
the case of state written law, because it relates to a matter which
respect to which the State Legislature has no power to make law, art.
74; or
• (2) in the case of both federal and state written law, because it is
inconsistent with the Constitution, see art. 4(1); or
• (3) in the case of state written law, because it is inconsistent with
Federal law, art. 75. The court has power to declare any federal or
state law invalid on any of the above three grounds.
Who sits in the Parliament?

• The Parliament consists of the Yang di-Pertuan Agong, the House of

Senate (Dewan Negara) and House of Representatives (Dewan
Rakyat).
• This composition of the Parliament was stressed in the case of
Public Prosecutor v Kok Wah Kuan [2008] 1 MLJ 1, where the Court
held that the Yang di-Pertuan Agong is the Supreme Head of the
Federation (art 32(1)). The executive authority of the Federation is
vested in the Yang di-Pertuan Agong (art 39). He is the Supreme
Commander of the armed forces of the Federation (art 41).
Parliament consists of the Yang di-Pertuan Agong, the Dewan
Negara and Dewan Rakyat (art 44). While members of the Dewan
Rakyat are directly elected, members of the Dewan Negara may be
elected by the Legislative Assembly of the States or appointed by
the Yang di-Pertuan Agong (art 45(1) and Seventh Schedule)’.
Can Parliament delegate its duty to other bodies to
make law?
• Yes, Parliament can delegate its duty to other bodies to make law.

• The legislations that are made by other bodies are known as

delegated legislation or subsidiary legislation.
• The power of the Parliament to delegate its duties of making the law
to other bodies can be found upheld in the case of S Kulasingam &
Anor V Commissioner of Lands, Federal Territory & Ors [1982] 1
MLJ 204, where the Federal Court held that ‘there is nothing to
prevent Parliament from delegating power to legislate on minor and
administrative matters and for this very reason we have in addition
to statutes innumerable subordinate or subsidiary legislation having
the force of law. Without these subordinate or subsidiary legislation
the Government machinery will not be able to function efficiently.
Delegation in the nature of section 6(4) of the Constitution
(Amendment) (No. 2) Act 1973 is a normal legislative device today’.
What happens to a law that has been amended?

• In the case of HSBC (M) Trustee Bhd V Kong Kim Hoh & Ors [1999]
3 MLJ 383, the High Court of Kuala Lumpur held that ‘it is relevant to
note that s 34 of the Interpretation Act 1948 and 1967 provides that
where a written law amends another written law, the amending
legislation shall be read and construed as one with the amended law.
Therefore, s 4 of the Distribution (Amendment) Act 1997 must be
construed not only within the context of the whole amending Act, but
also in the context of the principal Distribution Act 1958 as a whole,
in order to determine the true legislative intendment of the provision
in question’.
• In the case of Ramachandram s/o Appalanaidu & Ors v Dato Bandar
Kuala Lumpur & Anor [2012] 6 MLJ 519, the Court of Appeal
observed that the amending law must be construed not only within
the context of the whole amending Act, but also in the context of the
principal Act as a whole. The effect of amending legislation is
ascertained by the tenor of the principal and the amending
legislation read as forming parts of a whole.