chapter 1: introduction to malaysian legal system

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COMMERCIAL LAWLAW 243

Introduction

Copyright lecture notes prepared by Miss Fadhilah binti Abdul Ghani

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WHAT IS COMMERCIAL LAW?

Commercial law (also known as business law) provides a comprehensive coverage of the law relating to business.

Source: Wu Min Aun & Beatrix Vohrah, Commercial law of Malaysia, Longman Publisher, 2008.


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OBJECTIVE OF THE SUBJECT

• Understand the basic principles of law and regulations affecting business transactions.

• Understand the term used in the legal environment of business.

• Apply conceptual knowledge to real problems.


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CONTENTS

Chapter 1: Malaysian legal systemChapter 2: Law of contractChapter 3: Negotiable instrumentsChapter 4: Law of agencyChapter 5: Law on hire purchaseChapter 6: Law of partnership


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COMMERCIAL LAW

Chapter 1:

Malaysian legal system


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LEARNING OBJECTIVE

• By the end of this chapter, students should be able to define the word “law” and understand the concept of law in Malaysia.


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SUBTOPICS

1. What is law?2. Classification of law3. Sources of Malaysian law4. Judicial system in Malaysia


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CHAPTER 1:MALAYSIAN LEGAL SYSTEM

Subtopic 1:

What is law?


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1. WHAT IS LAW?


Activity:Brainstorm What comes

toyour mind when you heard the

wordLaw?

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Cont.

> Oxford Dictionary:

The system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition penalties.

Source: Oxford dictionary. Copyright lecture notes prepared by Miss Fadhilah binti Abdul

Ghani

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Cont.

> Sir John Salmond

(1862-1924):

The body of principles recognized and applied by the state in the administration of justice.

Source: Lee Mei Pheng & Ivan Jeron Detta, Commercial law, Oxford Fajar, 2011.Copyright lecture notes prepared by Miss Fadhilah binti Abdul Ghani

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Subtopic 2:

Classification of law


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2. CLASSIFICATION OF LAW

LAW

Public law(individual+state)

International law(state+state)

Private law(individual+individual)

Constitutional law

Criminal law

Public international

law

Private International

law

e.g. Law of contract

e.g. LawOf trust


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Cont.

Public law: • The law which governs the relationship between

individuals and the state. • Public law may be further subdivided into two categories

i.e. constitutional law and criminal law. • Constitutional law lays down the rights of individuals in

the state. It deals with questions such as supremacy of Parliament and rights of citizens. It also covers areas dealing with state and federal powers.

• Criminal law codifies the various offences committed by individuals against the state. A crime is a wrong against the state for which punishment is inflicted by the state.

Source: Lee Mei Pheng & Ivan Jeron Detta, Commercial law, Oxford Fajar, 2011.


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Cont.

International law:• The law which governs the relationship between state

and state.• It may be subdivided into two categories:

1. Public international law

2. Private international law.

Source: Lee Mei Pheng & Ivan Jeron Detta, Commercial law, Oxford Fajar, 2011. Copyright lecture notes prepared by Miss Fadhilah binti Abdul Ghani

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Cont.

Private law:• Private law concerned with matters that affect the rights

and duties of individuals amongst themselves.

Source: Lee Mei Pheng & Ivan Jeron Detta, Commercial law, Oxford Fajar, 2011. Copyright lecture notes prepared by Miss Fadhilah binti Abdul Ghani

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Subtopic 3:

Sources of Malaysian law


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3. SOURCES OF MALAYSIAN LAW

> The main sources of Malaysian law are:

A. Written law (also referred to as statute law):

1. Federal Constitution

2. State Constitution

3. Legislation

4. Subsidiary legislation

B. Unwritten law:

1. English law

2. Judicial decision

3. Customary law

C. Islamic law



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A. WRITTEN LAW

1. Federal Constitution:- Supreme law of

Malaysia- Provides the powers of

the Federal & State Governments- Provides fundamental

rights of individual


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Cont.

2. State Constitution:

- Regulates State Governments

- Contains provisions derived from 8th schedule of the Federal Constitution

3. Legislation:

- enacted by Parliament and the state assemblies• Act: laws made after 1957• Ordinances: - laws made 1946-1957

- laws in Sarawak



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Cont.

4. Subsidiary legislation:- Laws made under any Acts, Enactments or Ordinances - Very important because specify the laws in more

detail and for everyday matters- Example:

Parent Act (main law) : Hire-Purchase Act 1957Subsidiary Legislation : Hire-Purchase (Repossession)

Regulation- Subsidiary legislation made in contravention of either

a parent Act or the Constitution is void.


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B. UNWRITTEN LAW

1. English law:- Applicable in the absence of local laws- Suitable to local circumstances

English Commercial Law?

• Section 5(2) of the Civil Law Act 1956, English commercial law applies to Penang, Malacca, Sabah & Sarawak

• If no local laws applicable• Today, many local laws dealing with commercial matters

e.g. Contracts Act 1950, Partnership Act 1961, Companies Act 1965


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Cont.

2. Judicial decisions:

- Judge’s decision

- Doctrine of binding precedent : Not decide cases arbitrarily- must follow precedents (previous

decisions of similar situations). Each court is bound by the decisions of courts of the same level or higher than it in the same hierarchy of courts, whether or not it believes a decision is correct.



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Cont.

3. Customary law:

- Customs practiced by local people

- Generally, customs relating to family law are given legal force by courts in Malaysia-marriage,

divorce, inheritance

- Sabah and Sarawak: native customary laws apply

- Peninsular Malaysia:

Adat Perpatih - Malays in NS & Naning in Melaka - land, lineage, election of rulers

Adat Temenggung - many states - from Palembang, Sumatra



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C. ISLAMIC LAW

- applicable to Muslims only, does not apply to non Muslims

- family matters (marriage and divorce)- estate matters (inheritance, wasiat)


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Subtopic 4:

Judicial system in Malaysia


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4. JUDICIAL SYSTEM IN MALAYSIA

FEDERAL COURTFEDERAL COURT

COURT OF APPEALCOURT OF APPEAL

High Court in MalayaHigh Court in Malaya High Court in High Court in Sabah & S’wakSabah & S’wak

Sessions CourtSessions Court

Magistrates’ CourtMagistrates’ Court

Penghulu’s CourtPenghulu’s Court

Syariah CourtSyariah Court

Session CourtSession Court

Native CourtNative Court Syariah CourtSyariah Court

Magistrates’ CourtMagistrates’ Court

Juvenile Court Juvenile Court


Assignment

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QUESTIONS

1. The main sources of Malaysian law comprise: statute law, unwritten law and Islamic law (True / False)

2. The following are written law except:

a. Legislation enacted by Parliament and State Assemblies

b. Judicial decisions of the superior courts

c. Subsidiary legislation

d. State Constitutions


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Cont.

3. Unwritten law also referred to as statute law (True / False)

4. In Perak, Malacca, Sabah and Sarawak, English commercial law at the date on which the matter has to be decided is applicable in the absence of local legislation (True / False)


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Cont.

5. Judge decides cases arbitrarily without refer to decided cases (True / False)

6. The following statements are true except:

a. Federal Constitution provides fundamental rights of individual

b. Judge must follow precedents (previous decisions of similar situations)

c. English law applicable in the absence of local laws eventhough not suitable with local circumstances

d. State Constitutions contains provisions derived from 8th schedule of the Federal Constitution


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Cont.

7. Subsidiary legislation made in contravention of either a parent Act or the Constitution is voidable (True / False)

8. Private law is the law which governs the relationship between individuals and state (True / False)

• Define the word ‘law’?______________________________________________________________________________________

10. What is meant by ‘judicial precedent’?______________________________________________________________________________________


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THANK YOU!


chapter 1: introduction to malaysian legal system

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