JUNE 29 — What is a by-law?

It is a law that is made by a local authority and that applies only to that area. The local authority is given the power to make law by a specific legislation, called primary legislation – that is, law passed by Parliament.

This makes a by-law a subsidiary legislation, but law nonetheless because under Article 160(2) of the Federal Constitution law includes written law.

"Written” does not mean "in print” or in black and white. It means formally "enacted” or "made” into legislation or subsidiary legislation – both at federal and state levels.

Written law at the federal level includes the Federal Constitution, federal legislation being Acts of Parliaments and federal subsidiary legislation. At state level, it includes the State Constitutions, State Enactments or Ordinances (in Sarawak) and state subsidiary legislation including by-laws.

Kelantan’s Business and Industrial Trade By-Laws 2019 is made by the local authority under the powers conferred by Section 102(s) and Section 102A of the Local Government Act 1976 (Act 171) and confirmed by the State Authority under Section 103 of the same Act.

Section 102 states that "every local authority may from time to time make, amend and revoke by-laws in respect of all such matters as are necessary or desirable for the maintenance of the health, safety and well-being of the inhabitants or for the good order and government of the local authority area and in particular in respect of all or any of the ... purposes” set out in paragraphs (a) – (u). (Emphasis added)

Paragraph (s) is "to control and supervise, by registration, licensing or otherwise, including in proper cases by prohibition, "a trade, business or industry which is of an obnoxious nature or which could be a source of nuisance to the public or a class of the public”.

It is therefore clear that Section 102 is not confined to "the maintenance of the health, safety and well-being of the inhabitants” in that area.

Section 102A allows any by-law, rule or regulation made by local authority to prescribe fees and charges any matter or thing required or authorised to be done thereunder.

Section 103 ensures that a by-law, rule or regulation will not have effect until it is confirmed by the State Authority and published in the Gazette.

"State Authority” is defined under Section 2 as (a) in relation to the States of Peninsular Malaysia, the Ruler-in-Council or Governor-in-Council of a State and includes in Negeri Sembilan the Yang di-Pertuan Besar acting on behalf of himself and the Ruling Chiefs; and (b) in relation to the Federal Territory, the Minister charged with the responsibility for local government.

So, Kelantan’s Business and Industrial Trade By-Laws 2019 is law properly enacted or made. It may be a by-law or undang-undang kecil, but law nonetheless.

There are similar by-laws in other states on licensing of trades, business and industries. Kuala Lumpur, for example, has the Licensing of Trades, Businesses and Industries (Federal Territory of Putrajaya) By-Laws 2016.

The differences are in the details. Kelantan’s by-laws are more elaborate. By-law 34, for example, stipulates as follow (in BM):

(1) Pemegang lesen hendaklah memastikan dirinya dan pekerjanya berpakaian sopan, bersih dan kemas sepanjang menjalankan aktiviti tred, perniagaan atau perindustrian.

(2) Tertakluk kepada perenggan (1), pemegang lesen hendaklah—

(a) bagi yang beragama Islam, memastikan dirinya dan semua pekerjanya yang beragama Islam memakai pakaian menutup aurat dan sekiranya pekerjanya bukan beragama Islam hendaklah memakai pakaian sopan; atau Kn. P.U. 24. 492

(b) bagi yang bukan beragama Islam, memastikan dirinya dan pekerjanya yang bukan beragama Islam memakai pakaian sopan dan sekiranya pekerjanya beragama Islam hendaklah memakai pakaian menutup aurat.

The term "berpakain sopan” is defined to mean (in BM) "pakaian wanita atau lelaki yang tidak ketat atau sempit atau nipis sehingga menampakkan atau mendedahkan tubuh badan dan tidak mencolok mata pada pandangan umum”.

The term "pakaian menutup aurat” is also defined. It means (in BM) "pakaian wanita Islam yang menutupi seluruh badan kecuali muka dan kedua-dua tangan dan pakaian berkenaan hendaklah tidak ketat atau sempit atau nipis sehingga menampakkan bentuk tubuh badan dan pakaian lelaki Islam adalah di antara pusat hingga kedua-dua lutut”.

So, the relevant terms are defined in the by-laws. The by-laws are also clear as to whom they apply – that is, a licensee, who is any person to whom a business premise licence is issued under the by-laws, and his or her employees.

Be that as it may, it appears that a number of questions have been raised about the by-laws.

1. Are the by-laws void as being made in excess of the powers given to the local authority under Section 102?

2. Are they discriminatory against any ethnic group?

3. Are they unconstitutional?

The Federal Constitution is the supreme law in the country. For the by-laws to be valid, they must be within the ambit of the primary legislation as well as not inconsistent with any of the provisions in the Federal Constitution.

Any party aggrieved by the by-laws has the right of recourse to the courts to challenge them. Where the constitution is supreme, the courts are the final arbiter of issues related to fundamental liberties.

*This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail.