MASTER OF ENFORCEMENT LAW

(LW707)

FINAL ASSESSMENT
MALAYSIA LEGAL SYSTEM
(LAW 750)

PREPARED BY : RADIN RAMLAN BIN RADIN TAHA

2021407882

SUBMISSION DATE : 13 FEBRUARY 2022

LECTURER`S NAME : HAJI IZUAN IZZAIDI BIN AZMI

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 UiTM’s Academic Integrity Pledge

By signing this form, I agree to act in a manner that is consistent with UiTM’s academic
assessment and evaluation policy and processes. I will practice integrity in regard to all
academic assessments, and pursue scholarly activities in UiTM in an open, honest, and
responsible manner. I will not engage or tolerate acts of academic dishonesty, academic
misconduct, or academic fraud that include but are not limited to:

a. Cheating: Using or attempts to use any unauthorized device, assistance, sources,

practice or materials while completing academic assessments. This include but are
not limited to copying from another, allowing another to copy, unauthorized
collaboration on an assignment or open book tests, or engaging in other behavior
that a reasonable person would consider to be cheating.
b. Plagiarism: Using or attempts to use the work of others (ideas, design, words, art,
music, etc.) without acknowledging the source; using or purchasing materials
prepared by another person or agency or engaging in other behavior that a
reasonable person would consider plagiarism.
c. Fabrication: Falsifying data, information, or citations in any formal academic
assessment and evaluation.
d. Deception: Providing false information to an instructor concerning a formal
academic assessment and evaluation.
e. Furnishing false information: Providing false information or false representations to
any UiTM official, instructor, or office.

As a student of UiTM, I am expected to conduct myself in a manner that exemplifies honesty

and integrity. If for any reason, I am found to be violating the policies set out by UiTM, I
understand that disciplinary action can be taken against me.

__________________________

Name : RADIN RAMLAN BIN RADIN TAHA

Matric Number : 2021407882
Programme code : LW707
Faculty / Campus : UITM SHAH ALAM
*Students are required to sign one pledge for each course taken.

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QUESTION ONE

The legal systems of Malaysia and the United States are not the same. Each establishes a
system in accordance with the constitution and existing legislation. Malaysia has a mixed
legal system, whereas the United States uses Common Law in its legal system. The
Constitution, System of Governance, Court Hierarchy, and Legislation are the distinguishing
features.

First and foremost, the fundamental point is about the Constitution. Malaysia has a Federal
Constitution as well as State Constitutions. We have written constitutions at both the federal
and state levels, as well as in each of the 13 states. The Federal Constitution is the supreme
law of the land. Article 4(1) declares that this Constitution is the supreme law of the
Federation, and that any law passed after Merdeka Day that is inconsistent with this
Constitution is void to the extent of the contradiction. State constitutions are supreme in their
individual states, but they are subject to the primacy of the Federal Constitution in the sense
that all State constitutions must include some of the "basic articles" stipulated by the Federal
Constitution. If a State Constitution lacks these or substantially similar provisions, Parliament
may legislate to give effect to the mandated requirements. Thus, not only is compliance of
State Constitutions with the Federal Constitution ensured, but also uniformity in the system
of government in the State Constitutions. Malaysian courts, like those in many other nations,
are hesitant to use the tool of unconstitutionality to analyse official activities. Nonetheless, a
substantial body of case law has developed on constitutional challenges involving the
federal-state division of powers, unconstitutional interference with fundamental rights,
violations of constitutional amendment procedures, abuse of emergency powers, and the
Attorney-exclusive General's power to initiate prosecutions under Article 145.

The US Constitution serves as the supreme law of the United States. The US Constitution
contains a provision (known as the supremacy clause) that states that the Constitution, duly
enacted federal laws, and all foreign treaties made under US authority are the supreme law
of the US, and that judges in all states are bound by the US Constitution, all federal law, and
duly adopted foreign treaties. These three sources of federal law pre-empt the legal effect of
any inconsistency in state law, including any state rule or regulation and any county or city
ordinance, for as long as the source of federal law remains in force (and, as examples, a
federal law is not repealed or a foreign treaty is not rescinded). The US Constitution also
requires that each state give full faith and credit to the public acts, records, and judicial
proceedings of every other state, and that Congress can prescribe the manner in which such
acts, records, and judicial proceedings will be proved, as well as the legal effect thereof, by

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general law. A state court is bound by the final judgement made by the court of another
sovereign state as long as the other state's ruling meets with the conditions of the US
Constitution's full faith and credit clause (that is, that states must respect the public acts,
records and judicial proceedings of every other state). Similarly, depending on the
identification of the parties before the court and the legal disagreement between the parties,
a federal court must use state law in a pending legal action and a state court must apply
federal law.

The second is concerning the Governance System. Both countries feature a three-branch
structure that includes the Executive, Legislative, and Judiciary departments. The United
States has the same bodies as Malaysia, but the system is implemented differently.
Malaysia has a federal government, yet it is heavily centralised. However, the East
Malaysian states of Sabah and Sarawak have some executive, legislative, judicial, and
budgetary autonomy that the 11 Peninsular states do not have. Malaysia's government
system is modelled after that of the United Kingdom. Malaysia is a parliamentary democracy
and a constitutional monarchy. The Federation's Head of State is The Yang di-Pertuan
Agong (Paramount Ruler). The Yang di-Pertuan Agong is elected by the Rulers of the nine
Malay states from among their own number every five years, ensuring that the post rotates
among the Rulers. The Majlis Raja-Raja is made up of the nine Malay Rulers and the Yang
di-Pertua Negeri (Govenor) of each of the four states without Rulers (Melaka, Peneng,
Sabah, and Sarawak) (Conference Rulers). This is the most prestigious entity in the
federation, acting as a high-level liaison between the central and state administrations. It
meets four times a year on average. Among its functions are the election of the Yang di-
Pertuan Agong and his deputy (only the nine Malay Rulers attend for this purpose); a
discussion on national policy; the granting of consent, or not, to any law; and the provision of
advice on appointments that require their consent or advice under the constitution. As a
result, unlike in the United States of America, there is no true division between the
legislature and the political executive in Malaysia and the United Kingdom.

The United States has a representational form of federal government in which the people
elect the President of the United States and federal legislators, while federal judges are
appointed. The federal government shares authority with the governments of the 50 states.
The US Constitution establishes the balance of power between the federal government and
the states. The President is the head of state, and he is elected by the people indirectly
through a system known as the electoral college, which is outlined in the Constitution. In the
United States, the President serves as both the political and ceremonial head of

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government. The US government is divided into three branches: the executive, legislative,
and judicial.

The executive branch consists of the President, members of the cabinet, who are the
executive leaders of the executive branch's several departments, and administrative
agencies. Although Congress created the departments and regulatory agencies within the
executive branch, the President picks cabinet members and regulatory agency heads with
the advice and permission of the Senate.

The Court Hierarchy comes next. The Privy Council was Malaysia's highest civil court. The
Privy Council was abolished in 1985. The Federal Court, the Court of Appeal, the two High
Courts, the Sessions Courts, the Magistrates Courts and Juvenile Courts, and the Penghulu
(village headman) courts now lead the court hierarchy (in West Malaysia only). These were
phased out on March 1, 2013. The first three courts are known as superior courts, and they
have authority over original, appellate, and review cases. The Federal Court has advisory
authority as well. In keeping with the common law tradition, our legal system is devoted to
stare decisis, with all of its benefits and drawbacks. The Federal Court, the highest court,
has the authority to deviate from past judgements. Other higher courts (the Court of Appeal
and the High Courts) have the authority to decline to accept their own past judgements. All
civil courts (save the Federal Court) are, nevertheless, bound by the decisions of courts
higher in the hierarchy. There is some debate in the Commonwealth over whether stare
decisis should be strictly applied in constitutional and criminal law problems. It is also worth
noting that this idea has no place in Islamic jurisprudence or the civil legal systems of
Europe. The Supreme Court and other courts of law comprise the American Judiciary. It is a
self-contained entity. If the President violates the constitution, the court has the authority to
take action against him. The judicial system in the United States is divided into two branches
which is the Federal Court and the State Court. Except where there is a conflict between
state and federal law, the State Court has judicial authority over all disputes involving state
law. The purpose of the State Court is to hear cases involving the determination of rights
under the state constitution. The American Judiciary has the authority to declare that certain
congressional activities, presidential decisions, diplomatic actions, or situations in particular
state negotiations violate the Constitution.

Finally, there is legislation. The power to enact legislation in Malaysia is held by Parliament
at the federal level and the State Legislative Assembly at the state level. Parliament and the
State Legislative Assembly are not paramount because Malaysia has a written constitution
that is the supreme law of the federation. They can only enact legislation within the

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parameters and in the manner specified by the Federal and State Constitutions. Part VI of
the Federal Constitution specifies how legislative functions are divided between them. Acts
are laws passed by Parliament, but Ordinances are laws passed by the federal assembly
between 1 April 1946 and 10 September 1959. Enactments are laws passed by State
Legislative Assemblies, with the exception of Sarawak, where they are known as
Ordinances. Ordinances are laws promulgated by the Yang di-Pertuan Agong during an
emergency declared under Article 150 of the Federal Constitution.

The Congress is the name given to the American legislature. The primary function of
Congress is to legislate. The House of Representatives (Representatives) and Senate
House make up the Congress. The people elect members of the House of Representatives
and the Senate. Each state will send two senators to the Senate. Each state also elects
representatives to the House of Representatives based on population. Congress essentially
wields considerable power in American politics. The House of Representatives has 435
members and is proportional to the size and population of an American state. Every two
years, each member is elected to represent 30000 people. Those who succeed will not be
charged in court and will not be able to testify or serve on a jury in any case. The House of
Representatives has four times the number of members as the Senate. Congress, often
known as the legislative branch, is a bicameral legislature comprised of the Senate and the
House of Representatives. Members of the Senate and House of Representatives for each
state are elected by the people of the state or the congressional district that they represent.
Members of the assembly have the authority to present any motion before Congress, to
make regular legislation, to alter the constitution, and to grant approval to a new state
seeking to join the federation. This House also has the authority to appoint the President if
the Presidential candidate fails to receive a majority vote in the election. The House of
Representatives has its own set of rules, which are overseen by the House Rules
Committee.

Then, based on the implementation legal system in United States, have a few systems that
can give benefit to improve our legal system such as their Electoral College, Legislative of
US and judicial system.

First, the Electoral College ensures that the President of the United States is chosen from all
sections of the country. If the election were purely decided by popular vote, politicians may
limit their campaigning to densely populated areas or specialised regions. Presidential
candidates require electoral votes from many regions to win the election, thus they develop
campaign platforms with a national focus, implying that the winner will genuinely serve the

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needs of the entire country. If you're an 18-year-old US citizen, you presumably believe you
have the right to vote for presidential candidates in the national election. When citizens vote
in the popular vote for president, they elect a slate of electors. Electors then vote to
determine who will be the next President of the United States. The Electoral College was
established to preserve minority voices from being drowned out by the will of the majority.
The use of electors instead of the popular vote was intended to protect the presidential
election from uninformed or uneducated voters by putting the final decision in the hands of
electors who were most likely to have the information needed to make the best decision at a
time when news was not widely disseminated. The Electoral College was also meant to
prevent states with greater populations from wielding disproportionate power, as well as to
provide a middle ground between electing the president by popular vote and allowing
Congress to choose the president. In contrast of Malaysia, the people only elect the elected
representatives in their parliament and DUN, then the Prime Minister will be chosen by the
party that wins the election. Similarly, for the Head of State, the YDPA, the Malay Rulers will
hold the post of YDPA for 5 years in rotation. As such, the right of citizens to elect heads of
government and heads of state is limited compared to the United States. Another benefit of
the American system is that the presidency is limited to only two terms, preventing one from
ruling for decades until reforms are difficult to implement.

The second is about Congress. In my perspective, both the Senate and the House of
Representatives were formed by Congress, and while each has separate roles and
obligations, criminal actions of responsibility are always committed through Joint
committees. Legislation is the most essential responsibility of Congress. Bills must be signed
by the president within ten days of being adopted; else, they become law automatically.
Congress is also tasked with defending the country's defense and hence has the exclusive
authority to declare war, defend the armed forces, and raise and adopt military rules.
Chapter 8 of the United States Constitution grants Congress the ability to regulate trade, and
cases such as McCulloch v. Maryland have broadened the scope of congressional
jurisdiction to allow trade beyond the initial limit. The Constitution continues to grant
Congress the authority to borrow suitable cash and money. The Congress is the same as
Malaysia's legislature, which develops laws, but the Congress that passes the legislation is
not party-based. However, in Malaysia, the bill is created by the Cabinet, but it is passed by
a parliament based on the ruling government party. It is clear from this that Congress plays a
critical role in the United States legislative. The Congress is the same as Malaysia's
legislature, which develops laws, but the Congress that passes the legislation is not party-
based. However, in Malaysia, the bill is created by the Cabinet, but it is passed by a

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parliament based on the ruling government party. It is clear from this that Congress plays a
critical role in the United States legislative.

Finally, there is the judicial appointment. In presidential democracy, judges are appointed by
the head of state but on the advice of the Prime Minister, and they are paid by their
individual Judicial Commissions. Judges have the authority to interpret legislation
established by parliament based on their perception of the fairness of their application.
However, in a presidential democracy, the function of judges is higher than the freedom of
function, as if a law approved is unlawful, they have the right to repeal it. However,
parliamentary democracy includes a judicial function in which every bill enacted seeks the
advice of the Attorney General (AG) before being introduced in parliament (that is in the
Malaysian context). Finally, in a parliamentary democracy, the Prime Minister has the
authority to dissolve the chamber at any time after it has matured sufficiently. In a
presidential democracy, however, the President cannot dissolve the assembly and call
elections. Under a parliamentary democracy, a member of parliament can propose a vote of
no confidence at any time, however, in presidential democracy, the President can only be
removed through the "Impeachment process" if he or she is involved in criminal conduct.
This is the distinction between the two systems.

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QUESTION TWO

Although subsidiary legislation is an important instrument in modern administration, it has

sparked significant criticism. This is because subsidiary legislation is fundamentally
executive legislation, and executive law making is incompatible with the notion of separation
of powers. Furthermore, such law making by administrators who are not directly accountable
to the legislature or the public is vulnerable to abuse, such as a lack of prior discussion and
consultation, and an excess of the power delegated or sub delegation to other persons or
bodies where the legislature has not clearly identified the recipient of the delegated power.
Controls over subsidiary legislation are required in order to safeguard the public from such
exploitation. The following are the primary controls.

First is the judicial control. The most significant control is judicial control or review. In
Malaysia, ss 23 (1) and 87 (d) of the Interpretation Acts 1948 and 1967, respectively, lay
down the principle that any subsidiary legislation that is inconsistent with an Act of
Parliament shall be repealed to the extent of the inconsistency, or the State Enactment
(including the enabling statute) shall be repealed to the extent of the inconsistency. The
courts have oversight of subsidiary legislation through judicial review. The court may declare
the delegated power and the subsidiary legislation illegal under the doctrine of ultra vires
when the accused or defendant offers a defence or the aggrieved person challenges the
legitimacy of the subsidiary law in an action for one of two reasons there is Substantive and
Procedural.

In substantive ultra vires, the delegate has passed legislation that goes beyond the scope of
the authorities granted by the enabling statute, either in terms of subject matter, purpose, or
circumstances. In Major Phang Yat Foo v Brigadier General Dato 'Yahya bin Yusof &
Anor [19901 1 ML] 252, respondents, the authorities summoned a court-martial, allegedly
acting under r 63 (3) of the Armed Forces (Courts of Martial) Rules 1976, did not

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approve, and disseminated, the court-decision, martial's and ordered that a new court-
martial be.

In the ultra vires procedure, the delegated proxy has failed to follow the mandatory
procedures set out in the enabling statute, for example, to give notice to the parties involved
to allow them to make objections before granting planning permission. In Datin Azizah bte
Abdul Ghani v. Kuala Lumpur City Hall [1992] 2 MLJ 393 on a development order made
under s 22 of the Federal Territories (Planning) Act 1982 (Act 267), giving planning
permission to build two blocks of apartments on a piece of land in an exclusive residential
area, the Supreme Court quashed the order because of the fact, no notice of application for
planning permission as required under r 5 of the Planning (Development) Rules 1970
(which remained in force as if made under the 1982 Act) was sent to appellant. Notice was
sent to him but, due to the negligence of the officer concerned, to the wrong address.

Secondly, the legislature has a number of tools at its disposal to keep tabs on subsidiary
legislation. By enacting enabling statutes, the legislature can repeal statutes, revoke or vary
the assigned power. Legislation enacted pursuant to an enabling Act may be required to be
presented to the legislature, either for information or validation. Placing provisions is not
uncommon in Malaysia. Section 83 (3) of the Trade Marks Act 1976 (Act 175), which
requires subsidiary legislation, provides an example of a basic placement formula. S 58 (4),
Trade Union Act 1959 (Act 262) (Revised 1981), which requires subsidiary legislation to be
introduced solely in the House of Representatives, mandates that provisions enacted
thereunder be laid before both Houses. Negative or affirmative settlement techniques can be
used to place a validation before the legislature. Subsidiary legislation is effective in negative
resolution proceedings unless the legislature passes a resolution repealing it. The Import
Issuance Control Act of 1958 contains an example in section 19 (3). (Act No. 44 of 1958).
Alternatively, the affirmative action resolution is a more effective means of control: subsidiary
legislation is no longer in effect unless the legislature passes a resolution ratifying it within a
certain time period. A good example can be found in Section 15 (1) of the Sales Tax Act of
1972 (Act 64).

Under this control, Parliament can utilise one of two techniques. The first method is for
Parliament to exert control over subsidiary law by repealing either the parent or subsidiary
legislation. The second way is where the Parliament, via its parent act, demands that the
rules or regulations enacted as a result of it be placed before the Parliament. The rules or
regulations will only become effective in this manner if the Parliament does not pass a
negative resolution against them. Some parent acts require that the subsidiary laws be

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authorised by Parliament before it becomes effective. In this regard, the subsidiary
legislation will not become operative unless the Parliament passes an affirmative resolution.
The legislature that granted the delegated powers through an enabling act has the authority
to repeal the statute as well as revoke or vary the delegated powers. An enabling statute
may require that legislation enacted under it be placed before the legislature, either for
information or confirmation. Federal Express Brokerage Sdn Bhd & Ors v Malaysia
Airports (Sepang) Sdn Bhd & Anor [2012] 6 MLJ 190 is an example. The Court of Appeal
stated that it is a well-established principle that a provision in statute putting power on a
member of the executive to pass subsidiary legislation, particularly one imposing a financial
levy or charges on any segment of the public, must be narrowly construed. Any power
derived from subsidiary legislation can never exceed that derived from the main Act.
Parliament may delegate some of its powers to a Minister or other administrative body, but
such delegation must be limited to the stated authority assigned. It is the court's
responsibility to carefully examine the scope of the delegation, particularly when it concerns
the right to impose any financial burden on a person or class of people.

Thirdly is consultation. A subsidiary law must first be discussed with relevant advisory bodies
and interest groups before it can be enacted, according to this method. Before the
finalisation of the subsidiary legislation, this must be done. Some parents' rights legislation
mandates that the consultation be mandatory. As a result, the subsidiary legislation can be
considered ultra vires if it is not followed. When making subsidiary legislation in Malaysia,
there is no general statutory provision requiring prior consultation. Prior consultation is
required under a few Acts. Even though it is not yet required by law, administrative practise
allows for consultation on an as-needed and discretionary basis.There is no standard
statutory provision in Malaysia that makes prior consultation a formal prerequisite for the
creation of subsidiary legislation. Prior consultation may be required under certain enabling
Acts, but these are uncommon. S36(1) of the Financial Procedure Act 1957 (Act 61)
(Revised 1972), for example, empowers the Yang di-Pertuan Agong to issue regulations
after conferring with the Commodities Trading Commission. Though previous consultation as
a legal necessity has yet to emerge, consult action is done on a discretionary and ad hoc
basis in administrative practice.

Lastly is Publication. In Malaysia, there is no uniform statutory requirement for the

publication of subsidiary laws. Although it is not the usual, some enabling statutes may
compel disclosure. Noncompliance with an enabling act that requires publishing renders the
subsidiary legislation void. Subsidiary legislation must be published in the Gazette using this
approach. It will only take effect on the date of publication, or on any other date designated

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by the parties. In Malaysia, there are no universal statutory requirements for the publication
of subsidiary laws. Although it is not the usual, some enabling statutes may compel
disclosure. Noncompliance with an enabling act that requires publishing renders the
subsidiary legislation void. Subsidiary legislation takes effect on the date specified in s19(1)
of the Interpretation Acts 1948 and 1967, or on the date immediately after the date of its
publication in the Gazette Supplement if no date is specified. For example, the case of
Ramachandran S/O Appalanaidu & Ors V Dato Bandar Kuala Lumpur & Anor [2012] 6
Mlj 519. The Court of Appeal in this decision emphasized that the general principle of
statutory interpretation for subsidiary legislation is that it "may not be broader than the
enabling law." Any subsidiary legislation that is inconsistent with an Act (including the Act
under which the subsidiary legislation was adopted) must be void to the extent of the
inconsistency,' according to section 23 of the Interpretation Act of Malaysia. The
consequence of Section 23 is as straight forward as a pikestaff. Subsidiary legislation that
contradicts the parent Act is null and void. Whenever a federal law requires publication, the
Federal Gazette publishes it in two parts, one in Malay and one in English. Both Tambahan
Perundangan (Legislative Supplement 'A') and Tambahan Perundangan B' (Legislative
Supplement 'B') contain all proclamations, rules and regulations, orders and laws.
Depending on which section of the Gazette it is published in, the subsidiary legislation is
given a serial number beginning with the prefix PU (A) or PU (B).

Section 19 (1) of the Interpretation Acts of 1948 and 1967 states that subsidiary legislation
takes effect on the date specified or, if no date is specified, on the date immediately following
the publication date in the Gazette Supplement. So long as the preceding day's expiration
has passed before the subsidiary legislation's start date, it will go into effect immediately.
Because of these provisions, publication in the Gazette Supplement appears to be
necessary for the subsidiary legislation to take effect even if no date is specified. It is not
required to be published in order to begin its operation, as stated in s19 (1), and the
authority making subsidiary legislation may bring it into immediate effect as soon as it's
made without the need for publication. Once the final implication is correct, serious
repercussions will follow. With the proviso to section 20, no one can be punished for
anything they did before that date when the subsidiary legislation was published, this
problem is alleviated. In spite of this proviso, a person is still liable for civil damages if he or
she violates an unpublished regulation.

In my opinion, all methods of controlling subsidiary legislation are sufficient to preclude any
abuse of power in the enactment of the subsidiary legislation. The authority will confer with
other organised interest groups or advisory bodies before making any regulations.

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Subsidiary law, on the other hand, is published in the gazette and comes into effect on the
date of publication via the publication procedure. Legislation was passed because of the
legislative control that was conferred by parliament. As a result, legislators will always have
to deal with subordinate legislation.

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