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Contract law
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of conduct
Trust Law
Administrative Law
International Law
Etc.
Oxford English Dictionary (Lee Mei Pheng, 2005):
'the body of enacted or customary rules
recognised by a community as binding'
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 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.
Client Main
The project contractor
manager
Sub
contractor
Architect THE
CONSTRUCTION
PROJECT TEAM Nom. Sub
contractor
and/or the community
C&S
engineer
suppliers
M&E
engineer
Bankers
Landscape Quantity
architect Surveyor
Source: Azizan Supardi (2009)
Article 160(2) of the Federal Constitution :
State means a state of Federation
Federal List
-Islamic law
Concurrent
-External affairs -Land
-National defence -Agriculture and
List
-Internal security forestry
-Citizenship -Local services
-Etc. -Etc.
State List
State
law? Federal
law?
PER CONTENT PER SOURCES PER ENFORCEMENT
SUBSTANTIVE
LAW
Delegate
Unreported d
Legislatio
Published Unwritte
n Constitutiona
n Law l Law
Administrativ
Applicabl e Law
e English Judicial Customar
Law Decision y Law Criminal Law
SUBSTANTIVE LAW AND PROCEDURAL
LAW
CRIMINAL
CONSTITUTION
- - Systemises the law against
- - Describes the rights criminal
of individuals in the - - Examples: criminal breach
state of trust, murder, cheating,
- - Deals with matters theft, robbery, counterfeiting
and serious hurts to other
such as the individuals
supremacy of
parliament and the
- - Public prosecutors will give
punishment for inflicted
rights of citizens crimes in state level
- - Includes the areas - - There must be a wrongful
dealing with state and act and a guilty mind in
federal powers order to test the crime
offences
- PRIVATE LAW -
CONTRACTS TORTS
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.
LEGAL
SOURCES
-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 Gods commands on duties towards Allah and
relationship of one Muslim with another.
LEGAL
SOURCES
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 thereunder
Ordinance 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
-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 ground
b.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)
LEGALLEGAL
SOURCES
SOURCES
B. THE CONSTITUTIONS OF THE
STATES
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.
Article 71(1) of the Federal Constitution:
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.
LEGALLEGAL
SOURCES
SOURCES
C. LEGISLATION
Act of Parliament
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).
-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)
LEGALLEGAL
SOURCES
SOURCES
A. JUDICIAL DECISION
-It is mainly made up of nonstatutory (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.
- 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.
LEGALLEGAL
SOURCES
SOURCES
B. APPLICABLE ENGLISH LAW
(ii) Equity
(Sinha & Dheeraj, Legal Dictionary, ILBS, Petaling Jaya, p. 70):