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All Rights ReservedBusiness Law Oxford Fajar Sdn. Bhd. (008974-T) 2010 Ch1: 1

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CHAPTER1

An Introduction to the

Concept of Law in Malaysia


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This chapter:

defines the concept of law in

Malaysia in relation to the state

and the Constitution

OBJECTIVES


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PREVIEW

What is Law?

Law in Relation to Justice

Law and Ethics

Rule of Law Law, the State and the Constitution

- Law in Malaysia

- What is a State?

Classification of Law- Public Law

- International Law

- Private Law


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LAW

is a means or device to regulate the economic and

social behaviour of society

aims to preserve the economic and social welfare of

our society

is needed to regulate and control the affairs of society

is a regulatory device providing the mechanism for

society to function through tools such as legislationand case-law

guarantees our freedom, enables free enterprise and

provides a means to settle disputes amicably


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WHAT IS LAW?

It is a set of rules that regulates interactions that

people have with each other, and which sets

standards of conduct between individuals and

between individuals and the government andwhich are enforceable through sanction.

To the layman, law is understood as being a

general rule of conduct.

The Oxford English Dictionary defines law as the

body of enacted or customary rules recognized by

a community as binding.


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Sir John Salmond in Jurisprudence, defines

law as:

the body of principlesrecognized and appliedby the State in the administration of justice

John Austin in The Province of Jurisprudence

Determined, describes law asa command set

by a superior being to an inferior being andenforced by sanctions (punishments).

WHAT IS LAW? (cont.)


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the term law is defined both by Article 160(2) of

the Federal Constitution 1957 and Item (43C) of

section 2(1) of the Interpretation and General

Clauses Ordinance 1948 to include:

(a) the written law

(b) common law insofar as it is in operation in the

Federation or any part thereof

(c) any custom or usage having the force of law in

the Federation or in any part

WHAT IS LAW? (cont.)


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Law aims to maintain justice in society.

Justice is an abstract idea of right and wrong;

fairness and equality. The aim of a given law is to encourage the doing

of what is right or just in a particular set of

circumstances.

Justice is what right-minded members of the

community (that is, those having the right spirit

within them) believe to be fair.

LAW IN RELATION TO JUSTICE


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Law attempts to represent what society

believes is right or fair.

However, in its application to a particular setof circumstances, a law may not always

appear to be just.

LAW IN RELATION TO JUSTICE(cont.)


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The purpose of law is to govern the conduct of allmembers of society, whilst ethics guides individuals inascertaining the soundness of rules, and their impactupon relationships.

Law and ethics, though of different concepts, are often

related.

Businesses often use legal standards in carrying outtheir activities and in decision-making, businesses alsoadopt codes of ethics or conduct.

LAW AND ETHICS

Ethics is about what is right and what ought to be,not simply accepting what is.


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according to Dicey, the rule of law involves thefollowing three propositions:

1. No person must be punished except for abreach of the law.

2. All persons are equal before the law

irrespective of status or position.3. The rights or freedoms of citizens are

enforceable in the courts.

RULE OF LAW


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law in Malaysia, which consists of Peninsular

Malaysia, Sabah and Sarawak, is one political unit

but it is not governed by the same set of laws attempts are made to achieve uniformity in the law

throughout Malaysia but this is not possible in all

areas of the law

2 links uniting the two parts of Malaysia:

the Parliament

the Federal Court

LAW, THE STATE AND THE

CONSTITUTION


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legal systems are administered almost entirely on

the basis of the political unit known as the State

for international purposes, Malaysia is one state within Malaysia, however, there are thirteen states

each state has a government and has rules which

lay down who shall govern and how

Malaysia has a written constitutionFederal

Constitutionthe supreme law of the Federation

WHAT IS A STATE?


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Article 4(1) of the Federal Constitution:

4. Sup reme Law o f Federation .

(1) This Constitution is the supreme law of the Federationand any law passed after Independence Day which is

inconsistent with this Constitution shall, to the extent of

the inconsistency be void.

laws enacted by Parliament which are inconsistent with

the Federal Constitution may be declared void by thecourts

seeR Rethana vThe Government of Malaysia & Anor

c/f, Repco Holdings Bhd vPublic Prosecutor

WHAT IS A STATE? (cont.)


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73. Extent of Federal and State Laws

In exercising the legislative powers conferred on it by

this Constitution:

(a) Parliament may make laws for the whole or any

part of the Federation and laws having effect outsideas well as within the Federation

(b) The legislature of a State may make laws for the

whole or any part of that State


The Federal Constitution confers legislative power to

the Federal Parliament and the State legislatures.

Article 73:


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parliament may make laws for the whole of Malaysia

Article 74:

Parliament may make laws with respect to any of thematters enumerated in the Federal L istor the

Concu rrent L is t .

The Federal List:

1. External affairs2. National defence

3. Internal security



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4. Civil and criminal law and procedure and theadministration of justice

5. Federal citizenship and naturalization; aliens

6. The machinery of government7. Finance

8. Trade, commerce and industry

9. Shipping, navigation and fisheries

10. Communications and transport

11. Federal works and power

12. Surveys, inquiries and research



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13. Education

14. Medicine and health

15. Labour and social security16. Welfare of the aborigines

17. Professional occupations

18. Holidays; standard of time19. Unincorporated societies

20. Control of agricultural pests; etc



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21. Newspapers; publications; publishers; printingand printing presses

22. Censorship23. Theatres; cinemas; public amusements

24. Federal housing and improvement trusts

25. Co-operative societies

26. Prevention and extinguishment of fire, includingfire services and fire brigades



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The Concurrent List:

1. Social welfare, social services, protection ofwomen, children and young persons

2. Scholarships

3. Protection of wild animals and wild birds;National Parks

4. Animal husbandry5. Town and country planning

6. Vagrancy and itinerant hawkers



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7. Public health, sanitation and prevention of diseases

8. Drainage and irrigation

9. Rehabilitation of mining land and land which has

suffered soil erosion10. Fire safety measures and fire precautions in the

construction and maintenance of buildings

matters enumerated in the Concurrent List may also

be the subject-matter of laws made by the statelegislatures

the State Legislature may also make laws withrespect to any of the matters in the State List



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The State List:

1. Islamic law and personal and family law of Muslims;

Malay customs; offences by Muslims; Syariah Courts

2. Land

3. Agriculture and forestry

4. Local government

5. Local services

6. State works and water



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7. Machinery of the State Government

8. State holidays

9. Offences against State Law

10. Inquiries for State purposes

11. Indemnity

12. Turtles and riverine fishing



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see Mamat bin Daud & Ors vGovernment of

Malaysia, Ketua Pengarah Jabatan Alam

Sekitar & Anor vKajing Tubek & Ors and otherappeals

if any state law is inconsistent with a Federal

law, the Federal law shall prevailArticle 75,

Federal Constitution



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if any State law is inconsistent with a Federal

law, the Federal law shall prevail and the State

law shall, to the extent of the inconsistency, bevoid

State legislatures have the power to make laws

with respect to any matter not enumerated in

any of the Lists set out in the Ninth Scheduleand which are not a matter in respect of which

Parliament has power to make laws



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Major legal systems:

Civil law

Common law

SinoSoviet

Islamic

HinduTalmudic

CLASSIFICATIONS OF LAW


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in general, the legal systems of the world are classified

into 3 main types:

a) Civil law

b) Common lawc) Socialist law

the Malaysian legal system is a common law system

in Malaysia, law has been classified into 3 broad

divisions:a) Public law

b) International law

c) Private law

CLASSIFICATIONS OF LAW

(cont.)


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Oxford Fajar Sdn. Bhd. (008974-T) 2010 Ch1: 29

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law which governs the relationship between

individuals and the state

subdivided into two categories:

a) Constitutional law

b) Criminal law

constitutional law lays down the rights of

individuals in the state criminal law codifies the various offences

committed by individuals against the State

PUBLIC LAW


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body of law which is composed for its greater part

of the principles and rules of conduct which

states feel themselves bound to observe, andconsequently commonly do observe, in their

relations with each other

subdivided into two categories: Public international law

INTERNATIONAL LAW


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Private international law (conflict of laws) A part of municipal law

Rules that guide a judge when the laws of more

than one country affect a case

two main sources of international law that affect

businesses:

a) Customary Rules of International Lawb) Treaties and Conventions

INTERNATIONAL LAW (cont.)


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matters that affect the rights and duties of

individuals amongst themselves

intended to give compensation to personsinjured, to enable property to be recovered from

wrongdoers, and to enforce obligations

(contracts and trusts)

covers: Contract

Tort

Trust

PRIVATE LAW (CIVIL LAW)


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Contract

based on agreement

essential elements in a contract:

PRIVATE LAW (CIVIL LAW) (cont.)

1. Offer2. Acceptance

3. Capacity to contract

4. No mistake, misrepresentation or

undue influence5. Object must be lawful

6. Intention to enter into legal relations

7. Consideration


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Tort

based on an obligation imposed by law

a civil wrong the breach of a general duty which is imposed

by the law (and not agreed between the

parties)

remediable by a civil action for unliquidated

damages



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any person whose legal right is infringed

may sue that wrongdoer

essential elements of a tort:


there must be an act or omission done

intentionally or negligently

there must be damage caused by suchact or omission which is not remote


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Trust

an equitable obligation binding a person (a

trustee) to deal with property over which hehas control (trust property) for the benefit of

persons (beneficiariesor cestui que trust) of

whom he may himself be one and any one of

the beneficiaries may enforce the obligation



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O f d F j Sd Bhd (008974 T) 2010

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REVIEW

Explanation and Definition of Law

Law in Relation to Justice

Law and Ethics

Rule of Law Law, the State and the Constitution

- Law in Malaysia

- Concept of a State

Classification of Law- Public Law- International Law

- Private Law

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