law & its basic functions

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Intoduction to Malaysian Legal System

Law & Its Basic FunctionsGSM 5131BUSINESS LAW & ETHICSPUTRA BUSINESS SCHOOLBy: Sharifah Mazwin Syed Abu Bakar, Advocate & Solicitor, High Court of Malaya 1

ContentWhat is Law?Classification of LawSources of LawJudicial SystemAlternative Dispute Resolution Law, Justice & Morality

By: Sharifah Mazwin Syed Abu Bakar, Advocate & Solicitor, High Court of Malaya 2

What is Law?By: Sharifah Mazwin Syed Abu Bakar, Advocate & Solicitor, High Court of Malaya 3

What is Law?A set of rules developed over a period of timeRecognised by a community as bindingRegulates interaction between people, institutions and corporationsA system enforced by the State by way of sanctionsWhat is a State? A collective almost entirely built on the basis of a political unit By: Sharifah Mazwin Syed Abu Bakar, Advocate & Solicitor, High Court of Malaya 4

Classification of Laws3 Main World Legal Systems:-Civil Law codified Common Law case lawSocialist Law public lawAlso based on Religious or Belief SystemIslamic Quran & SunnahHindu Doctrine of proper behaviourTalmudic summary of oral law over centuries of scholarly effort by sages in Babylonia distinct from the Torah (written law)Sino-Soviet Karl Marx eradication of personal rights, absolute state rightOthers?

By: Sharifah Mazwin Syed Abu Bakar, Advocate & Solicitor, High Court of Malaya 5

Classification of LawsConvergence of Civil & Common LawSystems with Codified laws referring more to caselawSystems with Caselaw codifying more lawsCommon law systemPublic lawPrivate lawInternational lawBy: Sharifah Mazwin Syed Abu Bakar, Advocate & Solicitor, High Court of Malaya 6

Classification of LawsPublic LawRelationship between people & State2 categoriesConstitutional Law righs of citizens vs State powersCriminal Law codifies offences by citizens based on actus reus (wrongful act) & mens rea (unlawful intent)Private LawRelationship between private individuals eg Contract (set of promises between parties), Trust (equitable obligation over property in favour of beneficiaries), Tort (a civil wrong by way of breach of duty intentionally or negligently)International LawRelationship between states as recognised by itPublic International Law Customary rules, treaties & conventions that prevails between StatesPrivate International Law (conflicts of law) - Rules that guide a judge when laws of more than 1 country affects a case

By: Sharifah Mazwin Syed Abu Bakar, Advocate & Solicitor, High Court of Malaya 7

What is State of MalaysiaAll Laws enforced by StateMalaysia - 13 states & 3 FTCentral Govt & State GovtConsitutional monarchy based on UK Agong is constitutional head of federation. Elected by conference of rulers every 5 year rotation between the 9 rulers & 4 Governors (Yg Dipertua negeri)Conference of Rulers meets every 4 years link between state & federal so menteri besars always attend Duties of CoR elect Agong & Deputy, discuss ntional policy, consent of law, advice on apmts that consitutionally require their consent

By: Sharifah Mazwin Syed Abu Bakar, Advocate & Solicitor, High Court of Malaya

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Malaysias State StructureBy: Sharifah Mazwin Syed Abu Bakar, Advocate & Solicitor, High Court of Malaya 9

Sources of Law in MalaysiaMalaysian Law based on Common Law PrincipalsWhere is it derived from?Historical sources (religious belief, local custom, opinion of jurists)Integration of Legal sources (rules & laws), Depository (statutes, reports, reference texts), common law, Syariah law & customary law, Statute LawDefinition of Law in Malaysia:- Art 160(2) Federal Constitution 1957S.2(1)(43C) Interpretation and General Clauses Ordinance 1948Written LawCommon Law (in so far as it is in operation in the Federation or part of it)Any custom or usage having the force of law in the Federation or part of itBy: Sharifah Mazwin Syed Abu Bakar, Advocate & Solicitor, High Court of Malaya 10

Sources of LawWritten Federal & State Constitution, Acts, Subsidiary Legislation (Rules & Regulations), confirms common lawUnwritten English Law (common law), caselaw (refce also to commonwealth countries), customs accepted as lawIslamic Law Finance & Banking (Central Bank Act, Financial Services Act), Land (Stamp Act & State Land Offices), Trade (Bursa), Insurance (no separate Takaful Act)International Treaties & convention expectation of conformity once ratified even without enabling LegislationBy: Sharifah Mazwin Syed Abu Bakar, Advocate & Solicitor, High Court of Malaya 11

Sources of Laws - ApplicationWritten LawRemain until repealed, broad terms, provide for subsidiary legislation (rules & regs)Subject to Interpretation by Interpretation Act, Extrinsic materials (travail preparatoire) , definition in Act, common law rules of Interpretation (Literal, Golden Rule, Mischief), precedent, maxims to reflect purpose or intent of ActMay impute meaning or words into Act if feel Parliament failed to deal with matter required to be dealt with to achieve purpose of Act subject to satisfaction of test Birmingham v Corrective Services Commission of New South Wales [1998] 15 NSWLR 192If words clear effect given even if end result absurd

By: Sharifah Mazwin Syed Abu Bakar, Advocate & Solicitor, High Court of Malaya 12

Sources of Laws - InterpretationLiteral meaning ApproachWhole Act read, words read in context of whole Act, not in isolationGolden Rule ApproachFischer v Bell [1961] QB 394 plain meaning of word unless vary from intent of Act or lead to repugnance, injustice or absurdityMischief ApproachLee v Knapp [1967] 2 QB 442 where literal approach not poss, look at law before Act, overall intention of Act as a whole, any mischief remedied? Goes beyond examples in Act (usually not in eg, not covered)

By: Sharifah Mazwin Syed Abu Bakar, Advocate & Solicitor, High Court of Malaya 13

Sources of Laws - InterpretationLegal Maxims aids to constructionnoscitur a sociis association ie where word is ambiguous, consider it with words which it is associated to in the contextPrior v Sherwood [1906] 3 CLR 1054Ejusdem generis same class ie the word is limited to the same class to/type as the specific words preceding itBy: Sharifah Mazwin Syed Abu Bakar, Advocate & Solicitor, High Court of Malaya 14

Sources of Law - WrittenWritten Constitution enshrines powers of Federal & State Govts & rights of the people Federal Constitution & State Constitution (in 8th Sched of FC)Status - Art 4 Fed Con is supreme law of federationArt 4(1)- FC supreme law of the land & laws after Merdeka inconsistent with it is voidArt 162(6)- inconsistent laws pre merdeka, to be modified so as to be inconsistent by ct or tribunals.73 of Malaysia Act 1963 (effected by Art 159A of FC) pre Malaysia laws enacted by a state survive only in so far as that state yardstick to measure validity of all other laws of landBy: Sharifah Mazwin Syed Abu Bakar, Advocate & Solicitor, High Court of Malaya 15

Sources of Law Federal ConstitutionArt.73 of FC confers legislative powers on Parliament & State Legislative AssemblyLegislative & executive powers divided between Central & State Govt via Arts 74 & 80 of Federal Constitution (FC)Division of powers - 5 lists in 9th Sched of FCFederal List (I)State List (II)Concurrent List (III)Supplement to State List for Sabah & SarawakConcurrent List for Sbh & Swk Supplement to Concurrent Lists for Sbh & SwkBy: Sharifah Mazwin Syed Abu Bakar, Advocate & Solicitor, High Court of Malaya 16

Sources of Law LegislationArt 74 - Parliament enact legislation in Federal & Concurrent List Federal List - external affairs, defence, internal security, civil & criminal law & procedure, admin of justice called Ordinances before and Acts after 1957State Legislative Assemblies legislate in State & Concurrent Lists called Enactments. Sarawak called OrdinancesState List - Islamic law, land, agri, mining, local govt, state works & water, state holidays, offences against state law (native law, ports & harbours In supplementary state list for Sabah & Sarawak)Concurrent List matters of common concern (social welfare, town & country planning, pubic health, scholarships, drainage & irrigation). By: Sharifah Mazwin Syed Abu Bakar, Advocate & Solicitor, High Court of Malaya 17

Sources of Law -Legislation Process (Enactment)By virtue of Art 44 enactment carried out in Parliament YDP Agong (YDPA), Dewan Rakyat (DR), Dewan Negara (DN)Bill must be passed by both DR & DNThereafter assented to by YDPAProcess:-Consultation & Drafting by AGs Chambers with stakeholdersParliamentary Stage debates & votes through readings in both housesSpecial cases Select Ad Hoc Committee to get public feedbackRoyal AssentEnforcement by Gazette in Warta Kerajaan

By: Sharifah Mazwin Syed Abu Bakar, Advocate & Solicitor, High Court of Malaya 18

Sources of Law LegislationIf Parliamentary Acts inconsistent with Federal Constitution can be challenged in court.Thian vs Govt of Malaysia: Suffian L.P. -The doctrine of supremacy of Parliament does not apply in Malaysia. Here we have a written constitution. The power of Parliament and of State Legislature in Malaysia is limited by the Constitution and they cannot make any law they pleaseR Rethana v Govt of Malaysia & Anor [1998] 1 MLJ 133S.31 & 42 of Socso found not contrary to right to sue under FC as it was found to be fair & reasonable Repco Holdings Bhd v Public Prosecutor [1997] 3 MLJ 681Gopal Sri Ram JCA - Locus standi of prosecution officers under s.126(2) of Securities Industries Act ad S.39(2) of the Securities Commission