Ahad, 6 Mac 2011

Ti Lian Ker (Thinking Aloud)

Ti Lian Ker (Thinking Aloud)

Law Makers Must First Respect The Law

Posted: 05 Mar 2011 10:56 PM PST

below the relevant provisions in point form: -
 
(a) Lotteries Act 1952 (LA)
The promotion of the lotteries in Malaysia is governed by Lotteries Act 1952
 
Preamble – The preamble of the LA provides that the LA is aimed to make provision for the grant of permits for the promotion of lotteries for philanthropic, religious, educational, welfare and other charitable purpose
 
S3 & 4 – The power to grant permit is within the powers of with the Minister of Finance.
 
S5 – The Minister of Finance in granting the permit may impose conditions prescribing the manner in which lottery may be sold
 
S11 – A Magistrate may grant search warrant to police officer (not local authority) if there is any infringement of the LA
 
S14 – The Minister of Finance (not local authority) may make regulations relating to promotion of lottery
 
S17 – No lottery licensed under the LA shall be deemed to be a public lottery relating to common gaming houses (i.e. lottery is not a form of gaming under the Common Gaming Houses Act 1953)
 
Summary: Local authority is not empowered under the LA to make any provisions relating to the lottery, the LA is a federal law and all powers rest with the Minister of Finance. MPKB cannot usurp federal government power to make law.
 
 
(b) Common Gaming Houses Act 1953
 
S27 – The Common Gaming Houses Act 1953 shall not affect any lottery licensed under the LA (i.e. lottery is not a form of gaming under the Common Gaming Houses Act 1953)
 
Summary: Lottery is not a form of gaming under the Common Gaming Houses Act.
 
 
(c) Interpretation Acts 1948 & 1967
 
S3 – "Subsidiary Legislation" is defined to include any by-law made under any Act (for this purpose, the Local Government Act 1976)
 
S23 – Any subsidiary legislation that is inconsistent with an Act (for this purpose, the LA) shall be void to the extent of the inconsistency.
 
Summary: the MPKB's by-laws which prohibits the lottery is inconsistent with the LA and thus, void.
 
 
(d) Federal Constitution
 
S75 – In the event of inconsistency between federal and state laws, the federal law shall prevail.
 
Summary: Federal laws shall prevail.
 
 
(e) Maxim "Generalia specialibus non derogant"
 
Meaning – Specific provisions will override general provisions.
 
Cases referred: Perwaja Steel Sdn Bhd vs Majlis Daerah Kemaman, Terengganu
 
Summary: The lottery is governed by the specific federal law i.e. the LA, and MKSB cannot rely on its general power under the Local Government Act to make by-laws to override the specific legislation (the LA).
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