On 9 February 2024, Malaysia's Highest Court Deleted 16 State Laws in One Afternoon. Here's the Rulebook That Let It.

On 9 February 2024, a nine-judge panel of the Federal Court sat in Putrajaya and struck out sixteen provisions of Kelantan's Syariah Criminal Code (I) Enactment 2019. Sections 11, 14, 16, 17, 31, 34, 36, 37(1)(b), 39 through 45, 47 and 48 — gone. Null, void, never validly law at all.

The vote was 8-1. The single dissent, from the Chief Judge of Sabah and Sarawak, was not even about the merits — it was about whether the petitioners had standing to bring the case.

Kelantan had passed those provisions through its own State Legislative Assembly. Duly debated, duly voted, duly gazetted. And the Federal Court deleted them, because a state assembly is not allowed to create criminal offences that Parliament has already covered.

That case, Nik Elin Zurina Nik Abdul Rashid & Anor v Kerajaan Negeri Kelantan, is the cleanest demonstration you will ever get of what "sources of law" actually means. There is a rulebook. It has a ranking. And the ranking has teeth.

1. The Constitution is not just a document, it is a weapon

Article 4(1) reads: this Constitution is the supreme law of the Federation, and any law passed after Merdeka Day which is inconsistent with it shall, to the extent of the inconsistency, be void.

Three things people get wrong about this.

First, "void" means void from the start, not void from the date the court says so. Kelantan's sixteen provisions were never valid law. Anyone who had been charged under them was charged under nothing.

Second, it does not cover pre-Merdeka law automatically. Article 162(1) keeps existing laws alive after Merdeka Day, subject to modification. That is why colonial-era statutes are still on the books and why the Penal Code, first drafted in the 1870s, is still the backbone of Malaysian criminal law.

Third, you cannot just walk into the Federal Court and challenge a law. In Nik Elin, the petitioners first had to get leave from a single Federal Court judge under Article 4(4). That gateway is real, and it is why constitutional challenges are rare relative to the number of laws people are unhappy about.

There is also a live and genuinely unsettled argument about whether Parliament can amend anything it likes with a two-thirds majority under Article 159, or whether some features of the Constitution are so fundamental they cannot be amended at all. This is the basic structure doctrine, imported from India's Kesavananda Bharati. Malaysian courts rejected it in Loh Kooi Choon (1977), then embraced it in Sivarasa Rasiah (2010) and again in Indira Gandhi (2018), mostly to protect judicial power. Former Chief Justice Tun Abdul Hamid Mohamad has argued publicly that the doctrine contradicts Article 159 and that Malaysian courts had no business adopting it. Academic commentary in 2025 and 2026 continues to disagree about its scope. This is contested territory and anyone who tells you the answer is settled is overselling.

2. Parliament and the State Assemblies are not competing — they have separate job descriptions

Article 74 splits legislative power by subject, not by hierarchy. The Ninth Schedule contains three lists:

Sabah and Sarawak get supplementary items under the Ninth Schedule that no Peninsular state has — native law and custom being the most significant.

Article 75 is the tie-breaker: if state law is inconsistent with federal law, federal wins and the state law is void to the extent of the inconsistency.

This is exactly what sank Kelantan. Criminal law and the creation of offences sit in List I, item 4. States can legislate Syariah offences, but only against precepts of Islam and only where the offence is not already a matter within federal power. When a state enactment creates something that is in pith and substance a criminal offence of general application, it has stepped into Parliament's lane. The Federal Court had already established this in Iki Putra Mubarrak v Kerajaan Negeri Selangor (2021), which struck down Selangor's provision on unnatural sex. Nik Elin applied the same test at scale.

The political aftermath is instructive about how live this all is. Kelantan's State Assembly voted in March 2024 to reintroduce the sixteen provisions, and state officials have said publicly they intend to find a way to re-enact them.

3. Subsidiary legislation: where most of the law that touches you actually lives

You will probably never be prosecuted under an Act of Parliament. You will get a compound under a regulation made under one.

Parliament passes a skeleton — the Road Transport Act, the Food Act, the Local Government Act — and then delegates the detail to a minister, a commission or a local council. That detail is subsidiary legislation, and it is published in the Federal Gazette as P.U.(A) for legislative instruments and P.U.(B) for notifications.

Concrete examples you have already run into:

• Your saman for illegal parking comes from a local council by-law, not an Act.
• Your car's road tax rate comes from an order under the Road Transport Act.
• Speed limits on a stretch of PLUS are set by a gazetted order, not by statute.
• Minimum wage is set by a Minimum Wages Order, which is why it can change without Parliament sitting.

Since 26 April 2011 the Federal Legislation Portal (lom.agc.gov.my) has been the first official Gazette, and section 3 of the Interpretation Acts 1948 and 1967 recognises electronic publication as gazetting. Under Article 66(5), a law does not come into force until it is published — so if it is not gazetted, it is not law yet, no matter what was announced at a press conference.

Subsidiary legislation is the weakest form of law and the easiest to kill. If it goes beyond what the parent Act authorised, it is ultra vires and a court can strike it down on judicial review — either substantively (the minister made a rule he had no power to make) or procedurally (he didn't follow the process the Act required).

4. Judicial precedent: how one case binds a thousand

Malaysia inherited stare decisis. Decisions of higher courts bind lower courts on points of law. The hierarchy that does the binding:

Two wrinkles worth knowing. The two High Courts are of coordinate jurisdiction — the High Court in Malaya does not bind the High Court in Sabah and Sarawak, and vice versa, which is one route by which the law can diverge across the South China Sea. And not everything in a judgment binds. Only the ratio decidendi — the reasoning essential to the decision — is binding. Everything else is obiter dicta, persuasive only. Lawyers spend a great deal of their lives arguing about which is which.

The Federal Court has been blunt that this is not optional. In Public Prosecutor v Datuk Tan Cheng Swee (1980), Chang Min Tat FJ said the principle of stare decisis requires more than lip service.

5. English common law, and the three dates frozen in 1956, 1951 and 1949

This is the source most Malaysians have never heard of and most law students find bizarre.

Section 3(1) of the Civil Law Act 1956 says that where there is no local written law on a point, the courts shall apply English common law and rules of equity — as administered in England on a specific date. Three different dates, because Malaysia was assembled from territories that received English law at different times:

Two conditions apply on top: it only operates in the absence of local written law, and only so far as local circumstances permit, with such qualifications as those circumstances render necessary.

Why Sabah and Sarawak are different: they were not part of the Federation of Malaya. Sarawak's Application of Laws Ordinance 1949 and Sabah's equivalent of 1951 brought in English law on their own terms, including English statutes. The Civil Law Ordinance 1956 was extended to both by the Civil Law Ordinance (Extension) Order 1971 and the whole lot became the Civil Law Act 1956, but the original dates and the wider statutory reception survived. This is why a Sarawak court can be pointed at an English Act that has no application whatsoever in Selangor.

Does the cut-off freeze Malaysian law in the 1950s? No. In Jamil bin Harun v Yang Kamsiah, counsel argued that section 3 barred courts from following post-1956 English developments; the Privy Council rejected that, holding there was nothing preventing Malaysian courts from following later English decisions. The practical position: pre-cut-off English law is binding, post-cut-off English law is persuasive. Section 5 adds a separate and broader regime for commercial law, and it draws the map differently again — Penang, Malacca, Sabah and Sarawak get continuing reception without a cut-off date, the former Malay States do not.

The Malaysian Bar has published commentary arguing it would be absurd for Malaysian courts to apply English rules that England itself has since abandoned. There is a longstanding proposal to repeal or standardise section 3. It has not happened.

6. Syariah law: a state matter, with limits people constantly overstate

Under List II, states legislate on Islamic law and the personal and family law of persons professing Islam. Every state has its own enactments and its own Syariah courts, which is why the rules on, say, khalwat or the procedure for a Muslim divorce differ between Selangor and Terengganu.

The limits are structural, not attitudinal:

• Syariah courts have jurisdiction only over persons professing the religion of Islam, and only over matters in the State List.
• Syariah criminal punishments are capped by the Syariah Courts (Criminal Jurisdiction) Act 1965 — commonly known as the 3-5-6 limit: RM3,000 fine, 5 years imprisonment, 6 strokes.
• Where a state enactment creates an offence that is really general criminal law, it is void — Iki Putra, Nik Elin.
• Where civil and Syariah jurisdiction genuinely conflict, Indira Gandhi (2018) held that the civil courts retain the power of judicial review; that power is part of the basic structure and cannot be ousted.

This area is politically charged and the commentary you will read is rarely neutral. The legal position above is what the Federal Court has actually held; whether it should be that way is a live political argument in Malaysia with serious people on both sides.

7. Adat and native customary rights: the oldest source, and the hardest to enforce

Customary law predates every statute on this page.

Adat perpatih survives in Negeri Sembilan and parts of Malacca. It is matrilineal, and it governs the inheritance of tanah pesaka — ancestral land passes through the female line. If you own ancestral land in Rembau, this is not folklore, it determines who inherits.

Adat temenggung, patrilineal and heavily shaped by Islamic principles, applies elsewhere in Peninsular Malaysia and has largely been absorbed into Islamic personal law and statute.

Native customary rights (NCR) in Sabah and Sarawak are the live battleground. Sarawak's Land Code 1958 recognises NCR created before 1 January 1958 by methods listed in section 5(2): felling virgin jungle and occupying the cleared land, planting fruit trees, occupation or cultivation, use as burial ground or shrine, use as a right of way. Sabah has its own regime under the Sabah Land Ordinance and its Native Courts; Sarawak's Native Courts operate under the Native Courts Ordinance 1992.

The courts have accepted that NCR are pre-existing rights, not rights created by statute — a line of authority running from Nor Anak Nyawai (2001) onward, and the Federal Court has recognised NCR extending to communal territory, not just cultivated plots.

Be honest about how this works in practice. Community claims to broader territorial concepts — pemakai menoa (territorial domain) and pulau galau (communal forest reserve) — have run into narrower judicial readings since 2017, and academic work published in 2026 describes a serious enforcement gap: heavy evidentiary burdens and technical mapping requirements that defeat claims which are historically genuine. Recognition on paper and recovery of land are two very different outcomes. If you are pursuing an NCR claim, get a Sarawak or Sabah lawyer who does this specific work.

8. What about international law, fatwa, and "the Rukun Negara"?

Three common confusions, cleared up:

International treaties are not automatically Malaysian law. Malaysia is dualist. A convention Malaysia has ratified — CEDAW, the CRC — does not create rights you can sue on until Parliament legislates it. Courts may use it as an interpretive aid. That is all.

A fatwa is not law until it is gazetted by a state authority, and even then it binds Muslims in that state on matters within the State List. A fatwa in Perlis has no legal effect in Johor.

The Rukun Negara is not law. It is a national philosophy declared in 1970. It has no operative legal force, does not create offences, and cannot be cited to strike anything down.

What to actually do

If you want to check whether something is actually law:

• Principal Acts: search the Federal Legislation Portal at lom.agc.gov.my, or the AGC portal at agc.gov.my
• Subsidiary legislation from 26 April 2011: lom.agc.gov.my (search by P.U.(A) or P.U.(B) number)
• Pre-2011 subsidiary legislation: PNMB at lawnet.com.my
• State enactments: the relevant state's own portal; Sabah and Sarawak both maintain state AG chambers sites
• Court judgments: kehakiman.gov.my for the judiciary portal

If you are trying to work out which court your dispute belongs in:

• Under RM5,000 and you want to do it yourself: Magistrates Court small claims, no lawyer allowed
• Under RM100,000: Magistrates Court
• RM100,001 to RM1,000,000: Sessions Court
• Above RM1,000,000: High Court
• Motor accident claim of any size: Sessions Court has unlimited jurisdiction — don't file in the High Court
• Divorce (non-Muslim), bankruptcy, winding-up, probate, judicial review: High Court regardless of amount

If you think a law is unconstitutional:

• You cannot simply file in the Federal Court. Article 4(4) leave from a single Federal Court judge comes first.
• You need standing, and it is a real hurdle — in Nik Elin it was the one issue that drew a dissent.
• This is not a DIY exercise. Constitutional litigation is specialist work and expensive.

If your issue is Syariah:

• Check whether the matter is actually within Syariah jurisdiction (Muslim parties, State List subject-matter). If a non-Muslim party's civil rights are affected, the civil courts may well be the correct forum.
• The 3-5-6 sentencing cap applies. Any claim that a state can impose more than that is wrong under current federal law.

If you have an NCR claim in Sabah or Sarawak:

• Evidence of pre-1958 occupation (for Sarawak) is the whole ballgame — oral history, old photographs, fruit trees, burial sites, community testimony.
• Engage a lawyer who does NCR work specifically. This is not general practice.
• Be realistic about timelines and outcomes.