In the Malaysian constitutional framework, the primary legislative authority is vested in Parliament for federal laws and the State Legislative Assemblies for state laws (Federal Constitution, Art. 44, Eighth Schedule). However, the legislative power in Malaysia is not exclusively held by these elected bodies. Several other bodies are empowered to enact legally binding rules, regulations, and orders. This essay will identify and explain these other bodies, focusing on their sources of power and the nature of the laws they create. The main categories are bodies exercising delegated legislative power, local authorities making by-laws, and the executive's emergency law-making powers.
The Power to Create Subsidiary Legislation
The most significant source of law-making outside of Parliament and State Assemblies is subsidiary legislation, also known as delegated legislation. This is law made by a person or body under powers conferred on them by an Act of Parliament or a State Enactment, which is known as the parent Act. The Interpretation Acts 1948 and 1967 define 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).
This delegation of power is a practical necessity in a modern state. Parliament does not have the time or technical expertise to legislate on every detailed aspect of governance. Therefore, parent Acts often provide a broad framework and delegate the power to fill in the details to specific bodies. The most common recipient of this power is a government Minister. For example, the Minister of Health may be empowered under the Food Act 1983 to make detailed regulations concerning food safety and hygiene standards.
Beyond Ministers, various statutory bodies are also empowered to create subsidiary legislation. For instance, Bank Negara Malaysia (the Central Bank) can issue directives and guidelines that have the force of law for financial institutions under the Financial Services Act 2013. Similarly, professional bodies like the Malaysian Bar Council can make rules governing the conduct of lawyers under the Legal Profession Act 1976. The key principle is that this power is not inherent; it is granted by the legislature and its exercise is limited by the terms of the parent Act. Any subsidiary legislation that goes beyond the powers granted (ultra vires) can be challenged and struck down by the courts.
Law-Making by Local Authorities
A specific and important form of subsidiary legislation is created by local authorities. In Peninsular Malaysia, the Local Government Act 1976 provides the legal basis for local councils (such as City Councils, Municipal Councils, and District Councils) to create by-laws. These by-laws are laws that apply only within the geographical jurisdiction of that local authority.
Local authorities are empowered to make by-laws for a wide range of local matters, including public health, sanitation, waste management, traffic control, and business licensing. For example, a local council can enact by-laws that regulate the operating hours of restaurants, prohibit littering in public parks, or impose parking restrictions on certain streets. These by-laws are essential for the day-to-day administration of local communities. Like other forms of subsidiary legislation, they must be consistent with their parent Act (the Local Government Act 1976) and any other federal or state laws.
Emergency Ordinances under Article 150
A unique and powerful form of law-making authority is vested in the Yang di-Pertuan Agong (the King) during a state of emergency. Article 150 of the Federal Constitution allows the YDPA, on the advice of the Prime Minister, to issue a Proclamation of Emergency if he is satisfied that a grave emergency exists whereby the security, economic life, or public order of the country is threatened.
Once an emergency is proclaimed, Article 150(2B) empowers the YDPA to promulgate Ordinances on any matter, if he is satisfied that immediate action is required. These Ordinances have the same force and effect as an Act of Parliament. This is an extraordinary power that effectively allows the executive to legislate without going through the parliamentary process. This power is, however, not entirely unlimited. For instance, Article 150(6A) prohibits Ordinances from being made on matters of Islamic law, Malay customs, or native law and custom in Sabah and Sarawak. The Ordinances remain in effect until they are revoked or annulled by Parliament, or until they lapse at the end of the emergency period.
In conclusion, while Parliament and the State Assemblies are the supreme legislative bodies in Malaysia, they are not the only ones with law-making powers. A vast body of law is created through subsidiary legislation made by Ministers and statutory bodies under powers delegated by the legislature. Furthermore, local authorities enact by-laws to manage local affairs, and in exceptional circumstances of a national emergency, the YDPA can promulgate Ordinances. These mechanisms allow for a more flexible and responsive legal system, but their powers are derived from and controlled by the Constitution and parent legislation.
References
Faruqi, S.S. (2008) Document of Destiny: The Constitution of the Federation of Malaysia. Star Publications.
Financial Services Act 2013.
Food Act 1983.
Interpretation Acts 1948 and 1967.
Legal Profession Act 1976.
Local Government Act 1976.
The Federal Constitution of Malaysia.
