ATGB 2643 - LEGAL STUDIES

LECTURE 1 : INTRODUCTION TO LEGAL SYSTEM

LEARNING OUTCOMES
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At the end of this lecture, students will be able to : Identify the government and law, sources of law, types/classification of law Differentiate the written/unwritten law Discuss the legislation procedures, court decisions, Discuss the role of federal/state government and English law Discuss the hierarchy of courts Explain the federal constitution, powers of federal and state governments

WHAT IS LAW
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Law can be defined as a body of rules and regulations which are developed and enforced by the government to deal with crime, business arrangements and social relationships Law is typically administered through a system of courts in which judges hear disputes between parties and apply a set of rules in order to provide an outcome that is just and fair. The manner in which law is administered is known as a legal system, which typically has developed through tradition in each country.

WHAT IS LAW
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Contd

Most countries rely upon the police to enforce the law :Ie; to issue legal warnings and citations, execute search or other legal warrants and to make arrests

FUNCTIONS OF LAW
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Law is based on the concept of fault. Example : passing of sentences in criminal cases and award of damages in civil cases Law is said to have the following functions: To govern and regulate the conduct of the people and organisations in a community, society or nation To protect and preserve the safety and well-being of the society from those who would threaten it To punish the guilty with aims of retribution, deterrence and rehabilitation To strike a true balance in the scale of justice

CATEGORIES OF LAW
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Public law Regulates the relationship between an individual and the community Example: constitutional law (concern about rights of individuals in the community), criminal law (concern with various offences committed by individuals against community) Parties involved : the public prosecutor & the accused (in criminal cases) Standard of proof : the court must be convinced that the accused is guilty beyond all reasonable doubt Punishment : sentence in the form of fine and/or imprisonment

CATEGORIES OF LAW

contd

7 Private law Sometimes referred to as civil law Regulates the relationship between individuals in that community Includes law of contract, tort, trust, land, family, company, partnership, agency and etc Legal action undertaken as an initiative of the individual Parties involved : the plaintiff and the defendant Standard of proof : burden of proof is on the plaintiff who is to prove his/her case on the balance of probabilities Punishment : monetary compensation as remedy

The development OF Malaysian LAW

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Prehistoric period Historic Period

- Pre-European Era, - Hindu-Buddhist Influences - Chinese Influence - Islamization and the Melaka Sultanate

European Colonialism The Japanese Invasion and Its Aftermath Independence Towards Malaysia

SOURCES OF MALAYSIAN LAW

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Written

law

constitutions, legislation

the federal legislation and

and state delegated

Unwritten law law which is not enacted by the

parliament or the State Assemblies. Unwritten law includes customs, case law (judicial precedent), English common law and equity

Islamic law

The federal constitution

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The supreme law of the federation Any general law that is inconsistent with the constitution is void to the extent of the inconsistency Establishes a constitutional monarchy and a federal system of government

The federal constitution

contd 11

Divides legislative powers between the federal government and the state governments Federal lists ie civil & criminal law procedure, finance, education State list islamic law , malay customs, land matters, agriculture, local government, etc Concurrent list ie town & country planning, drainage & irrigation, housing

The doctrine of the separation12 of powers

In federal constitution, the 3 separate bodies of Government are defined as : Executive elected representatives charged with the task of administration Legislative- parliament given the responsibility to make law Judiciary judges appointed to interpret and apply the law (independence of judiciary)

The state constitutions

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All 13 states comprising of the federation have individual constitutions which provide for a single chamber Legislative Assembly in each State. Constitutional Ruler : Sultan, Yang di-Pertuan Besar(NS), Raja (Perlis), Yang di Pertua Negeri (Penang, Melaka, Sabah & Sarawak) State government is headed by Chief Minister (Menteri Besar), assisted by Executive Council

Legislation
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Refers to statues passed by parliament or the state legislative assemblies act a federal law made by parliament enactment a state law made by a State Legislative Assembly with the exception of Sarawak where its law are called Ordinances Ordinance- a law enacted by Parliament after 1946 but before Malaysias independence in 1957.

Delegated legislation
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Means any rule, regulation, order, notification or by-law enacted by an authority under powers conferred on it by a statue Ie : uniform building by-law which was made under the Street Drainage & Building Act 1974 Also known as subsidiary legislation

Customs
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Relates with family law ie; marriage, divorce and inheritance, are given legal force by courts in Malaysia Example of local customs ; adat pepatih and adat temenggong in Peninsular Malaysia ; native customary law in Sabah & Sarawak (eg; in land dealings over native customary land)

Case law (Judicial Precedent)

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Law to be discovered by reading similar cases Judges are bound by the rule precedent Hierarchy of courts in order of superior courts: Ie Chung Peng Chee v Cho Yew [1954]MLJ 100

the earlier of judicial inferior to Fai & Ors

English Common Law & Equity

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Civil law act 1956 Section 3(1) : the rules of common law (case law decided by the English Common law Court) and equity (decided by the English Court of Equity) may be applied by the Malaysian courts, if it is deemed to be appropriate to do so based on the facts of the case and the situation at hand. Section 3(2) : In the event of conflict or variance between the common law and the rules of equity with relevance to the same matter, the rules of equity shall prevail.

Equity
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Is the name given to the set of legal principles

in countries following the English common law tradition , which supplement strict rules of law so as to achieve natural justice The principles of the law of equity are based on the concept of fairness and are generally used when there are: No other specific principles that apply or specific principles that apply , but to apply them would lead to an unjust result in the case

Muslim Law
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Muslim law is applicable only to Muslims and administered in the Syariah Courts (established by the State) Civil courts have no jurisdiction in respect of any matter within the jurisdiction of the syariah courts

The legal institutions

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The judiciary is empowered by the Constitution to interpret the Federal and State Constitutions. It is an independent body separate from the legislative and executive arms of government The courts in Malaysia are as follows: Penghulu court Magistrates court Session court High court CA Federal court

The legal institutions

Contd
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Courts created for specific purposes: Juvenile court Native court Syariah court Employment court Special court

Statutory interpretation
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The duty of courts is apply the law laid down in the statue to the particular facts which face the courts in each case, so as to beget justice between the parties of the suit. General rules are : The literal rule the courts should give them that meaning without any gloss The golden rule where words in a statue are ambiguous , that meaning should be given which best expresses the intention of parliament The mischief rule the court will attempt to answer the question what does the statue mean by asking what was the mischief (or unsatisfactory state of affairs) which Parliament meant the Act to remedy?

LITIGATION
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The process of fighting or defending a case in a civil court of law Litigate to take legal action In Malaysia, court cases are presented and conducted under an adversarial system, as adopted in England, in which plaintiff and the defendant are to find evidence to be presented to the judge to adjudicate, whereas some other European countries adopt a different system the inquisitorial system in which the judge has the duty to find evidence and investigate the case

How does the court determine which party would get judgment in their favor?
Civil case Whose case is stronger : plaintiff plaintiff wins; defendant defendant wins Balance of probabilities is almost even defendant wins (as the burden of proof is on the plaintiff) Criminal case Doubt : reasonable accused acquitted; not reasonable accused convicted
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PRIMA FACIE case

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A Latin phrase which means at first glance or on the face of it Once the plaintiff/public prosecutor (PP) has adduced their evidence , the judge must decide if there is a prime facie case; ie sufficient justification that there is a case to answer Prima facie is not a conclusive finding of guilt on the charges. The finding of whether the defendant or accused is guilty or not of the allegations is made at the conclusion of the trial

PRIMA FACIE case

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contd

If the judge is of the opinion that the plaintiff or public prosecutor has not proven a prima facie case, the judge must give judgment in favour of the defendant or accused Principle : presumption that the defendant / accused are innocent until proven to the contrary

How the case proceed?

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A case proceeds in the following sequence: Plaintiff / PP begins their case Plaintiff / PP concludes their case The judge makes a findings of whether there is a prima facie case No prima facie case - judgement in favour of defendant/accused; OR Prima facie case proved defendant/accused called on to begin their case Defendant /accused begin their case; OR Exercise their rights of silence The judge decides on whether the defendant/accused are liable /guilty or not

ALTERNATIVE DISPUTE RESOLUTION (ADR)

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Martin, E.A (1997) defined ADR as any of a variety of techniques for resolving civil disputes without the need for conventional litigation. Arbitration it is a process that requires third party or we called as arbitrator, which empowered to resolve the problems as stated in the arbitration agreement. Arbitrator private judge The award final and binding on the parties The law of arbitration is codified in the Arbitration Act 1952

ALTERNATIVE DISPUTE RESOLUTION (ADR) contd (ADR)

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Mediation A private, informal dispute resolution process in which a neutral third person, the mediator, helps disputing parties to reach an agreement The mediator has no power to impose a decision on the parties The advantages of mediation are informality, speed, economy and often leads to an agreed settlement between the parties Once the mediator is able to obtain an agreement, the parties come together and draft and sign a settlement agreement

ALTERNATIVE DISPUTE RESOLUTION (ADR) contd (ADR)

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Tribunal A group of people appointed to inquire into some matter or dispute and to adjudicate. Ie: Tribunal For Homebuyer Claims etsablished under the Housing Development Act 1966 which is to hear any claim brought by a homebuyer (if amount is less than RM 25,000)

judicial
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Judiciary system of a country is run by the government for the people. Just like other departments run by the government people expect judiciary to work for their welfare. People want the judiciary should be efficient and clean so that and has no influence over it from any external agency. A fair and transparent judiciary system of the country earns huge respect from its people.

REFERENCES
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1. 2. 3. 4. 5. 6. 7. 8.

Bruce, Richard H (1991). Success in Law (3rd Ed). John Murray Ltd : London Curzon, L.B (2002). Dictionary of Law (6th Ed). Pearson education Limited : England Lee, Mei Pheng (2005).General Principles of Malaysian Law (5th Ed). Fajar Bakti : Malaysia Lecture note from Ar. Chang Choong Yew Martin, E.A (1997). Oxford Dictionary of Law (4th Ed). Oxford University Press : New York Singh, K.S.H (2003). Engineering and Construction Contract Management. Post Commencement Practice. LexisNexis: Singapore Venugopal, A.V (2001). Introduction to Law in Malaysia. Sweet & Maxwell Asia : Malaysia Vohrah, B and Aun, W.M (2000). The Commercial Law of Malaysia. Pearson Malaysia Sdn Bhd : Malaysia