Before we discuss subsidiary legislation in Malaysia, we need to take a step back. We first must ask, “Who can make laws in Malaysia?”
So, who can make laws in Malaysia?
Malaysia’s Federal Constitution (link) states that:
The legislative authority of the Federation shall be vested in a Parliament, which shall consist of the Yang di-Pertuan Agong and two Majlis (Houses of Parliament) to be known as the Dewan Negara (Senate) and the Dewan Rakyat (House of Representatives).
Art. 44, Federal Constitution
The Federal Constitution also prescribes that:
“Legislature”, in relation to a State, means the authority having
Art. 160, Federal Constitution
power under the Constitution of that State to make laws for the
State;
After a Proclamation of Emergency, the Yang di-Pertuan Agong may promulgate Emergency Ordinances. According to the Federal Constitution, these ordinances have the same effect as an Act of Parliament.
(2b) If at any time while a Proclamation of Emergency is in operation, except when both Houses of Parliament are sitting concurrently, the Yang di-Pertuan Agong is satisfied that certain circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as circumstances appear to him to require.
(2c) An ordinance promulgated under Clause (2b) shall have the same force and effect as an Act of Parliament, and shall continue in full force and effect as if it is an Act of Parliament until it is revoked or annulled under Clause (3) or until it lapses under Clause (7); and the power of the Yang di-Pertuan Agong to promulgate ordinances under Clause (2b) may be exercised in relation to any matter with respect to which Parliament has power to make laws, regardless of the legislative or other procedures required to be followed, or the proportion of the total votes required to be had, in either House of Parliament.
Art. 150 (2B) and (2C), Federal Constitution
So, to answer the question: who can make laws in Malaysia?
Federal Legislative Authority
Parliament and the Yang di-Pertuan Agong (when a Proclamation of Emergency is in effect) makes laws for the Federation as a whole and any part of it. The Penal Code and the Arms Act 1960 are examples of Acts of Parliament which applies throughout the country. The Lembaga Kemajuan Wilayah Kedah Act 1981, the Declaration of an Area in the
Bintulu District to be a Federal Port Act 1979, and the Synod of the Diocese of West
Malaysia (Incorporation) Act 1971 are examples of Acts of Parliament confined to a specific area or class of people.
State Legislative Authority
State Legislatures make laws for the State or any part thereof. Sarawak has its own Land Code that applies throughout the State. It also has Bintulu Development Authority Ordinance 1978 passed by the Dewan Undangan Negeri that applies only in Bintulu or “Yang di-Pertua Negeri may by notification in the Gazette declare any area of land in the Bintulu District to be a designated area within which the Authority may perform its functions and exercise its powers under this Ordinance” (S. 8(1), Bintulu Development Authority Ordinance 1978).
When Parliament or the State Legislatures enact laws, it is subjected to Arts. 74, 75, 76A, 95B, and the Ninth Schedule of the Federal Constitution.
The division of functions between Parliament and the courts as respects legislation is clear. Parliament makes laws and can delegate part of its power to do so to some subordinate authority.
Per Lord Diplock in McEldowney v Forde [1971] AC 632 (emphasis added).
The Malaysian courts also acknowledge the legitimacy of subsidiary legislation, subjected what the parent Act, Enactment, and Ordinance allow.
Can the Legislature delegate its legislative authority?
The Legislature has the authority to pass laws. Within that law, it can delegate certain functions to another institution, body, or individual.
Let’s take the example of the earlier mentioned Lembaga Kemajuan Wilayah Kedah Act 1981 which states:
The Lembaga may, with approval of the Minister, make such regulations as may be expedient or necessary for the better carrying out of the provisions of this Act.
s. 32(1), Lembaga Kemajuan Wilayah Kedah Act 1981
Likewise, the Bintulu Development Authority Ordinance 1978 states that:
The Authority may with the approval of the Chief Minister make such regulations as may be expedient or necessary for the better carrying out of the provisions of this Ordinance…
s. 34, Bintulu Development Authority Ordinance 1978
Thus, it is fair to say that Parliament, the State Legislatures, and the Yang di-Pertuan Agong may delegate their legislative functions to another body. These are collectively known by many names: subsidiary legislation, delegated legislation, statutory instruments.
Subsidiary comes in many forms: regulations, rules, orders, guidelines, notification, and many more. They are often named after the parent Act, Enactment, or Ordinance. The subject matter regulated by the subsidiary legislation must conform with the parent Act, Enactment, or Ordinance.
To synchronise the interpretation, the Interpretation Acts 1948 and 1967 defines ‘subsidiary legislation’ as:
…any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Act, Enactment, Ordinance or other lawful authority and having legislative effect;
s. 3, Interpretation Acts 1948 and 1967
Where can you check a Subsidiary Legislation?
Neither Federal nor State Government may make subsidiary legislation in private. All Acts and subsidiary legislation must be gazetted before it can be implemented. In Malay, these Gazettes are known as “Warta Kerajaan”.
At the Federal level, the Gazette can be accessed through the Attorney General’s Chambers’ Website: http://www.federalgazette.agc.gov.my/index.php.
Each State maintains its own Gazette – normally under the purview of the State Attorney General. Some states are in the process of going digital, so you may have difficulties in finding an online database or collection.
What is the effect of not knowing or being able to access the Gazette? Until you came across this paragraph, did you know we have Federal and State Gazettes, i.e. Warta Kerajaan Persekutuan & Warta Kerajaan Negeri?
To answer the previous question, just because you and I are unaware that there are Gazettes, this ignorance does not negate the validity of those laws and subsidiary legislation. The maxim “ignorantia juris non excusat” – ignorance of the law excuses no one – applies.
Not the End of the Discussion on Subsidiary Legislation…
The goal of this entry is to answer one question: are subsidiary legislations made by the Executive valid in Malaysia? Do they exist?
Based on the examples given above, the answer is “yes”. Like any modern legal systems, Malaysia has its own set of subsidiary legislation.
Among the many reasons are (1) timeframe to act and (2) expertise to act. Take for example the on-going COVID-19 Pandemic. To manage the movement of its population, the Government of Malaysia, through the Minister of Health, issued the Prevention and Control of Infectious Disease (Measures within Infected Local Areas) (No. 8) Regulations 2020 (link) amended by a series of amending regulations. We cannot expect Parliament to pass an Act every second week on the same matter.
I will be discussing that aspect of having subsidiary legislation in another post.
LAW435: Malaysian Legal System I is a subject offered by Universiti Teknologi MARA (UiTM) as part of the Bachelor of Legal Studies (Hons.) – LW213 programme. From October 2020, Aldric Tinker Toyad is enrolled in the Bachelor of Legal Studies (Hons.) programme. This article is part of the learning experience and does not constitute legal advice, nor does it negate the requirement for further research and consultation with licenced practitioners. In addition to that, the opinions herein are Aldric’s own which do not represent clients, employers, or institutions associated or affiliated with him.