malaysian legal system

Categorise of Law:-

Contract law

Tort Law

Criminal Law

Constitution Law

Property Law

Trust Law

Administrative Law

International Law

Etc.

Emphasised on the ‘general rule of conduct’

Oxford English Dictionary (Lee Mei Pheng, 2005):

'the body of enacted or customary rules recognised by a community as binding'

Sir John Salmond, Jurisprudence (Lee Mei Pheng, 2005):

'the body of principles recognised and applied by the State in the administration of justice … law consists of the rules recognised and acted on by courts of justice.'

“Law” is generally the procedures and the rules of conduct or act which one uses one’s every senses in order to harmonise the convenient of oneself and or another

Article 160(2) of the Federal Constitution :

- “Law” includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force in the Federation or any part thereof.

The aims of law:-• To attain justice• To encourage the doing of what is right or just in a particular set of circumstances

Peninsular Malaysia, Sabah and Sarawak - one political unit, but is not governed exactly the same set of laws

Two important links-the Parliament and the Federal Court

Originated from:-

- England : Common law

- India : Criminal law and Contract law

- Australia : Land law

- Supreme law that applies throughout the country is known as the Constitution of Malaysia.

- This federal law (Constitution of Malaysia) constitutes:-

: Legislations: Courts: Administrative aspects of law: Powers of the government: The government monarchy: Rights of the citizens

- The Federal Constitution of Malaysia:-: Yand Di-Pertuan Agong – Act as the head of country: Devided into three main authorities, which are...

This what we called….

The Executive

Involves in administering the nation and ensuring that government policy will be carried out according to the law.

The government departments which assist in administering the nation are part of the executive.

The duties must be done according to the power granted by the law so that it will not be void and be held ultra vires/no effect.

The Legislative

Will enact law so that administration could run smoothly.

Cannot interfere as to the administration carried out by the executive.

Law will be enacted in accordance with the interest of the citizen.

Parliament will be the place where law will be enacted and the voice of the people was heard through their representative.

Judiciary

The law which was enacted by the legislative will not only govern the people but also the nation including the three government organ.

If dispute arise as to whether certain action contradict the law, then it might be challenge in court.

The system of court is under this organ plays an important role in determining as to whether action done is legal or illegal.

The judiciary will interpret the law enacted by the legislative and at the same time applies the said law in arriving at their decision.

All parties will be treated equally and the judiciary is free to make judgments without coercion, fear or favour.

The project manager

M & E engineer

Landscape architect

C & Sengineer

Architect

Quantity Surveyor

Maincontractor

Subcontractor

Nom. Subcontractor

suppliers

Bankers

Client

… and/or the community

THE THE CONSTRUCTION CONSTRUCTION PROJECT TEAM PROJECT TEAM

Source: Azizan Supardi (2009)

- Sultan or Yang Di-Pertuan Negeri is the head of state.

- Every State has a government and has a written constitution which institute who shall govern and how.

Article 160(2) of the Federal Constitution :

“State” means a state of Federation

Sinha & Dheeraj, Legal Dictionary, ILBS, Petaling Jaya, p. 44:

“Constitution” is the fundamental law of a state or nation.

Article 4(1) of the Federal Constitution

states:

- This Constitution (the Federal Constitution) is the supreme law of the Federation and any law

passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency be void.

Case Law:-

- R. Rethana v The Government of Malaysia & Another [1988] 1 MLJ 133

- Repco Holdings Bhd v Public Prosecutor [1997] 3 MLJ 681

Article 73 of Federal Constitution states:

- 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 outside as well as within the Federation;

(b) The legislature of a State may make laws for the whole or any part of that State.

Federal Goverment

Federal List

State List C

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Article 74 of Federal Constitution :

State GovermentFederal

+ State Goverment

-External affairs-National defence-Internal security-Citizenship-Etc.

-Islamic law-Land-Agriculture and forestry-Local services-Etc.

Case Law:

- Mamat bin Daud & Others v Government of Malaysia [1988] 1 MLJ 119

- Ketua Pengarah Jabatan Alam Sekitar & Anor V Kajing Tubek & Ors and Other Appeals [1997] 3 MLJ 23

Article 75 of Federal Constitution:

- 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, be void.

State law? Federal

law?

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Law

LAW OF MALAYSIA

SUBSTANTIVE LAW AND PROCEDURAL LAW


- Substantive law concerns with the determination of rights and legal powers.

- Procedural law concerns with the legal operations by which these rights and powers are discovered and enforced.

- SUBSTANTIVE LAW -

-Is the statutory or written law that governs the rights and obligations of those who are subject to it

-It defines the legal relationship (right and obligations) of people with other people or between them and the state

- It refers to all categories of public and private law

- Some of substantive law was derived from principles found in judicial decisions or in common-law

- PROCEDURAL LAW -

-It comprises the rule by which a court hears and determines what happens in civil lawsuit or criminal proceedings

-The rules are designed to ensure a fair and consistent application to all cases

-For example: i. time allowed for one party to sue another ii. rules of law governing the process of the lawsuit

- PUBLIC LAW -


- Public law is that branch of the law which is concerned with the relations between:

. governmental divisions

. the organisations of government

. the relations between the individual and the state

CONSTITUTIONCONSTITUTION

- - Describes the rights of individuals in the state

- - Deals with matters such as the supremacy of parliament and the rights of citizens

- - Includes the areas dealing with state and federal powers

CRIMINALCRIMINAL

- - Systemises the law against criminal

- - Examples: criminal breach of trust, murder, cheating, theft, robbery, counterfeiting and serious hurts to other individuals

- - Public prosecutors will give punishment for inflicted crimes in state level

- - There must be a ‘wrongful act’ and a ‘guilty mind’ in order to test the crime offences

- PUBLIC LAW -


- Private law is that the branch of the law which is concerned with the legal relations between private individuals, as distinct from public law.

- PRIVATE LAW -

CONTRACTSCONTRACTS

- Based on the agreement between two parties (offer and acceptance)

- Must meet all essential elements to form a contract

TORTSTORTS

- - No agreement between the parties

- - For claims against the civil wrong or breach of general duty

- - The act or omission must be wronged and must prove three elements (duty of care, breached to the duty and the damages must not too remote

- PRIVATE LAW -

Sinha & Dheeraj, Legal Dictionary, ILBS, Petaling Jaya, p. 105

International law is a body of rules and principles governing the relations of nations between each other. Since these rules could not be enforced by any definite supranational (international) agency, their validity has long depended on the extent to which any particular nation chose to recognise them.

- INTERNATIONAL LAW -

Topics covered in an international law:-

a. Treaties : Agreement between states dealing with any matter of international concern

b. Jurisdiction : Power of a state to make and enforce its laws at the international level

c. State responsibility for wrongful acts

d. Human rights

e. War and peace

- INTERNATIONAL LAW -

Ir Harbans Singh KS (2002), Engineering and Construction Contract Management – Law and Principles, LexisNexis, Singapore, p. 28:

“Public International Law is the corpus (main part) of legal rules applying between sovereign states. It deals with relationship between states”

Legal rules such as: Law of sea International criminal law International humanitarian law

Ir Harbans Singh KS (2002), Engineering and Construction Contract Management – Law and Principles, LexisNexis, Singapore, p. 28

“Private International Law… is the body of rights and duties of citizens of different sovereign states towards one another. It deals with that branch of the law that applies to individuals or legal entities involved in legal disputes of an international nature.”

Also known as a ‘municipal law’ - every country may have its own version of law

The rules will guide the judge when the law in more than one country affects a case (conflicts of law)

Legal issues on: - Civil or human rights - Negligence - Contract

Not only between a government and its own citizens but also in how its citizens are treated by other nations.

Wu Min Aun (2005), The Malaysian Legal System (3rd ed.), Longman -Pearson Malaysia Sdn. Bhd., Petaling Jaya, p. 109:

The term “sources of law” has several meanings:

Historical sources indicating the factors that have been influential in the development of the law but by themselves not recognised as law. Such as:-- Religious practices and beliefs- Local customs - Opinions of jurists.

It may also refer to places where the law can be found as for example, in statutes, law reports, textbooks and decisions of

courts.

In most cases, however, it refers to legal sources, that is, the legal rules that make up the law.

-The Syariah law only applies to the Muslims

- It is a sacred law of islam as revealed by Prophet Muhammad s.w.t.

- It is totally based on God’s commands on duties towards Allah and relationship of one Muslim with another.

LEGAL SOURCES

LEGAL SOURCES

- The main sources:- a. Al-Quran: the words of Allah b. Sunnah: rules deduced from the traditions (such as sayings or conduct of Prophet Muhammad s.w.t

- The secondary sources:- a. Ijma: consensus of jurists of any particular judicial rule b. Qiyas: deductions from reasoning by ijtihad or anology

Source: Abdullah Habib, S.N.H. and Abdul Rasyid, K. (2008), “A revised proposed methodology to investigate shari’ah compliance in the formation of construction contract”, Research in the Malaysian Construction Industry and Built Environment 2008”, IIUM, ISBN: 978 98J 3142

Article 3 of the Federal Constitution states:

“Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation”

The court that will enforce the Islamic law are the Syariah

Court for matters such as:- - Family matters - Marriage - Divorce

LEGAL SOURCES

Article 160(2) of the Federal Constitution:

“Written law” includes this constitution and the constitution of any state.

Section 3 of the Interpretation Acts 1948 and 1967 (Act 388) defines ‘written law’ as:The Federal Constitution and the Constitutions of the states and subsidiary legislation made thereunder;Acts of Parliament and subsidiary legislation made thereunderOrdinance Enactments (including any federal or state law styling

itself and an Ordinance or Enactment) and subsidiary legislation made thereunder; and; Any other legislative enactments or legislative instruments (i.e; Acts of Parliament of the United Kingdom) which are in force in Malaysia or any part thereof.

LEGAL SOURCES

A. THE FEDERAL CONSTITUTION

- Article 4(1) of the Federal Constitution:“This constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void”

- Is a supreme law of Malaysia

- The constitution’s supremacy is preserved by allowing the courts to review legislative or executive acts.

LEGAL SOURCES

-When the legislative or executive acts violate the constitution, the court may declare ultra vires (beyond the legal power) and void.

- Matters that can cause this violation are such as:-a.Matters where the relevant legislature has no power to make law (Mamat b Daud v Government of Malaysia [1988] 1 MLJ 119) - only the Federal Court can review this groundb.The law has not been enacted in conjunction with the procedure as sets in the constitution (Public Prosecutor v Dato Yap Peng [1987] 2 MLJ311)c.Any case of state law that the rules are inconsistent with the federal law (City Council of Georgetown v Government of the State of Penang[1967] 1 MLJ 169)

A. THE FEDERAL CONSTITUTION

B. THE CONSTITUTIONS OF THE STATES


“The Federation shall guarantee the right of a Ruler of a State to succeed and to hold, enjoy and exercise the constitutional rights and privileges of Ruler of that State in accordance with the Constitution of that State; but any dispute as to the title to the succession as Ruler of any State shall be determined solely by such authorities and in such manner as may be provided by the Constitution of that State.”

It prescribes matters related to the Ruler (i.e; to act on advice), the Executive Council, the Legislature, the Legislature Assembly, State employees and amendment of the constitution and financial provisions.

LEGAL SOURCESLEGAL SOURCES

C. LEGISLATIONAct of Parliament

Article 73 of the Federal Constitution:

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 outside as well as within the Federation;(b) The Legislature of a State may make laws for the whole or any part of that State.


“Act of Parliament” means a law made by Parliament.


Act of Parliament

The process of approving the Bills:

- Drafting of Bill (after the proposal approved by Cabinet) > First Reading (Minister will introduce

the Bill in Dewan Rakyat) > Second Reading (debate & voting) > Committee Stage (detailed examination of the Bill. Amendment will be carried out if necessary) > Third Reading (Further debate and voting) > Dewan Negara (repeat the First, Second, Committee Stage and Third Reading) > Royal Assent (within thirty days, Yang Di Pertua Agong will give his royal assent in form of Public Seal Bill)> Publication (the Act will come into force).

C. LEGISLATION


Ordinance and Enactment

Section 3 of the Interpretation Acts 1948 and 1967 (Act 388):

State laws are called Enactments, including those made by the former Malay States before Merdeka Day. The only exception to this is the State of Sarawak whose laws are still termed Ordinance.

Article 160(2) of the Federation Constitution:

“Enactment”, where the expression occurs in the Eight Schedule, means a law made by the Legislature of a State.

C. LEGISLATION


Ordinance and Enactment

- The laws made by the Parliament and State Legislatures must comply with the manners and provisions laid out in the Federal constitution.

-The divisions of legislation:-List I of the Ninth Schedule are legislated by the ParliamentList II of the Ninth Schedule are legislated by the State LegislatureList III of the Ninth Schedule are concurrent matters shared by the Parliament and State Legislatures

C. LEGISLATION


Section 3 of the Interpretation Acts 1948 and 1967 (Act 388):

‘Subsidiary legislation’ to mean any proclamation, rule, regulation, order, notification,by-law or other instrument made under any Act, Enactment, Ordinance or other lawful authority and having legislative effect.


D. SUBSIDIARY LEGISLATION

Reasons to have this delegation (Wan Arfah, 2006, p. 49):-

a.The legislature has insufficient time to enact the legislationb.Many modern legislations involve technical matters therefore experts must be referred toc.When the laws need to be made or amended quicklyd.Persons or bodies where powers have been delegated to them will have the authority to make the changes.


D. SUBSIDIARY LEGISLATION

Ir Harbans Singh, K.S. (2002), p. 36:

Unwritten law constitutes that part of the local law that is not recognised as ‘written law’ in the Malaysian context, i.e. it falls outside the classification afforded under section 3 of the Interpretation Acts 1948 and 1967 (Act 388).

Unwritten law comprises the following:(a) Case law or judicial decisions of the superior courts;(b) English common law and equitable principles as applicable in the local context; and(c) Customs and usages that have been recognised as

applicable by the Malaysian courts.


A. JUDICIAL DECISION


Case law – The law which is created by and appears in the decisions of the courts. The decision made by the judge from these courts is known as ‘doctrine of binding judicial precedent’. It is also known as ‘doctrine of stare decisis’

Precedent means ‘decision made by the judge previously in similar situation’


-A court must follow the prior decisions (‘ratio’or principle) of a higher court for the same material facts.

-For example:

“The Supreme Court has made decision in 1987 (Case A). In 1990, the same case facts and situations have been brought to the High Court (Case B). The High Court must therefore decide the case based on the principles governed by the Supreme Court in 1987”. Under this doctrine, decision made by higher courts will bind lower courts” (Wan Arfah, 2006, pp.31-32)



A few situations where the court may not apply the earlier precedent can be due to:-

a.The judge in Superior Court overruled the precedence decided by the lower courts

b. The earlier precedent was arrived at per incuriam

(made in ignorance of a statute or a binding precedent)c.There are difference material facts between the case

established the precedent with the new one



- The application of law of England can only be subjected to two limitations:-a) With the absence of local statutes on the particular subjects, English law is applied only to fill the missing part in the Malaysian legal systemb) Only English Law that suited to local circumstances could be applied.

- Section 3(1), Civil Law Act states:“The said common law, rules and equity and statutes

of general application shall be applied so far only as the circumstances of the States of Malaysia and their respectives inhabitants permit and subject to such qualifications as local circumstances...”

B. APPLICABLE ENGLISH LAW


(i) Common Law

Section 3 of the Interpretation Acts 1948 and 1967 (Act 388) defines ‘common law’ to mean the common law of England.



(i) Common Law

-It is mainly made up of non–statutory (non written) laws, which are the precedents derived from judgments given on real cases by judges (it is purely from decisions of the courts).

-The British introduced this set of laws to Malaysia through various treaties with local rulers followed by legislation and decisions by English judges or judges trained in the English legal system.

- In the earlier time, courts were tasked with the responsibility of interpreting the Federal Constitution. In undertaking that duty, common law principles were applied. The words used in the Constitution and its spirit were developed by judges deciding cases within the structure of the common law system.



(i) Common Law

- As the law was stood up prior to Merdeka, this English common law was only applicable “as the circumstances of the States of Malaysia and their respective inhabitants permit and subjected to such qualifications as local circumstances render necessary”.

- Malaysian Courts have a wide discretion whether to accept the common law principle or not.

- When Malaysian judges accept such principles, they become part of Malaysian common law and Malaysian law has developed in that manner.

- Almost all ex- British colonies have adopted the common law system. But in each country, the Courts develop their own common law which may not be identical or similar to the English common law.



(ii) Equity(Sinha & Dheeraj, Legal Dictionary, ILBS, Petaling Jaya, p. 70):

- Is the body of law, formerly enforced in the Court of the Chancellor of England, aiding, supplementing and correcting the common law.

- “Equity” applied the concept of “justice” or “fairness”. It is used in common law decisions as a gauge of moral rightness in the interpretation of statutes, and in the application of legal rules.



(ii) Equity

- Developed after many conflicts could not be redressed through the common law - that is for the King to decide

- The King would refer the cases to his adviser or known as the King’s Chancellors

- The King’s Chancellors did not apply the common law (judicial precedents) but, they practiced the Christian precepts on fairness (good faith)

- When there are conflicts between the Common law and Equity law, the rules of equity shall prevail



(iii) Customary Law


Custom – is a rule of conduct which in a given place and among given groups of persons has been followed for an appreciable time.Customs from the local inhabitants such as:-

a. Family law (marriage, divorce and inheritance)b. Adat in the Malay communityc. Hindu and Chinese customs.d. Native customary law (in Sabah and Sarawak)



1. Lee Mei Pheng (2005). General Principles of Malaysian Law (5th Ed.), Penerbit Fajar Bakti Sdn Bhd., Shah Alam, pp. 1-22. Rau & Kumar (2005). General Principles of the Malaysia Legal System, International Law Book Services., Petaling Jaya, pp.58-61.3. Vijayalakshmi Venugopal (2001). Introduction to Law in Malaysia, Sweet & Maxwell., Petaling Jaya, pp. 2-44. http://www.wisegeek.com/what-is-law.htm, search via: google.com5. http://en.wikipedia.org/wiki/Law_of_Malaysia, search via: google.com6.http://www1.mmu.edu.my/~husni/government_struc.ppt, search via: google.com7. http://en.wikipedia.org/wiki/Procedural_law, search via: google.com8. http://en.wikipedia.org/wiki/Substantive_law, search via: google.com9. http://legal-dictionary.thefreedictionary.com/Substantive+Law, search via: google.com10.http://www.worldlawdirect.com/article/839/What_is_international_law. html11. http://topics.law.cornell.edu/wex/International_law12.http://www.malaysianbar.org.my/press_statements/press_release_comm on_law.html

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