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Sources of Malaysia Law:Federal & State Constitution

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pwincess diaries

on 27 October 2016

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Transcript of Sources of Malaysia Law:Federal & State Constitution

EIX1002:INTRODUCTION TO LAW
TUTORIAL 3

the procedure for the enactment of an act of Parliament
the supremacy of Federal Constitution as the supreme law of the Federation.
The supremacy of the FC is set out in Articles 4(1) and 162(6) and Section 73 of the Malaysia Act 1963
Article 4(1)
it states that the constitution is the supreme law in the Federation and any law passed after Merdeka Day which is inconsistent with the Constitution shall be void, to the extent of its inconsistency.
Article 162(6)
deals with any pre-Merdeka law which is inconsistent with the federal Constitution shall be continued with the necessary modifications to render it consistent with the Federal Constitution.
Section 73 of the Malaysia Act 1963
refers to pre-Malaysia laws in force on 16 September 1963 in a state which joins Malaysia on that date. This section acts as a saver from the automatic repeal all the per-Malaysia laws enacted by the states legislature.
Sect 73(3)
The present laws of the Borneo States in so far as they are laws which could not be passed before Malaysia Day by the State Legislatures were treated as federal laws.
Sect 73(5)
the laws of the Federation and of each of the Borneo States passed or made before Malaysian Day (16th Sept 1963) shall continue to apply only within the state concerned.
the case of Mamat bin Daud v Government of Malaysia
Facts: The petitioners were charged under section 298A of the Penal Code which commits acts that threaten the unity between Islamic religious by becoming bilal and khatib without an appointment letter from Majlis Agama Islam Terengganu.
The decision:Parliament added a new clause to the Penal Code-it is an offence to perform any function of a religious character without authority in that behalf.The subject alleged Parliament cannot approve section 298A of the Penal Code because the appointment is under the jurisdiction of the state government as stated in Article 73-74 and list II of the Ninth Schedule of the Constitution. Court held that the Section 298A of Penal Code is void and ultra vires Article 74 of Federal Constitution.

The significance of the decision:It shows that the supremacy of the FC is maintained by giving the courts the rights to review legislative and executive acts.And when a legislative or executive act violates the FC, the court may declare it ultra vires and void.
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