CONTRACT AND LEGAL

ISSUES

ASSOC PROF DR HAIDAR DZIYAUDDIN

 CONTRACTUAL
TERMS

ALTERNATIVE TORTIOUS
DISPUTE OBLIGATIONS
RESOLUTION

ENGINEERS
AND LEGAL
ISSUES:
INDUSTRIAL INTELLECTUAL
RELATIONS PROPERTY

BUSINESS
ORGANISATION CYBER LAW
CHECK POINTS:
 NATURE OF LAW

 LEGAL SYSTEM

 MALAYSIAN LEGAL SYSTEM

 MALAYSIAN LAWS

 SOURCES OF LAW

 MALAYSIAN LEGAL LANSCAPE

Malaysian sources of law are influenced by foreign
elements and historical significant periods.

Malaysia’s governance and administration history

developed from :-

1. Malacca Sultanate

2. Portugese Invasion

3. Dutch Occupation

3. British Colonialisation
LEGISLATIONS

1. STATUTE or ACT OF PARLIAMENT

2. ENACTMENT
3. ORDINANCE
4. STATUTORY LEGISLATION
Parliament may pass the power to legislate any subsidiary legislation
during emergency, even if there is a contradiction with the Federal
Constitution due to an exception in Article 150 of Federal Constitution.

Eng Keock Cheng v. Public Prosecutor

In this case, Eng Keock Cheng who was convicted committed 2 offences
during emergency period and was ordered to put to death. He appealed on
the ground that there were neither a preliminary enquiry nor a jury adopted
by High Court which were required under Criminal Procedure Act and
claimed that the procedures set out in Emergency (Criminal Trial)
Regulations 1964 was invalid as it contradicts with Article 8 of Federal
Constitution. It was held that Parliament may pass the power to legislate
any subsidiary legislation during emergency, even if there are any
contradictions with theFederal Constitutions involved, due to
some exceptions in Article 150 ofFederal Constitution. The appeal
was dismissed.
The source of Malaysian law can be classified
into :-
Statutory legislations

1.Written law Subsidiary legislations

Common law
2.Unwritten law Customary law
Syariah
3. Islamic law
Written laws are laws which have been enacted in theconstitution or in
legislations.

Unwritten laws are laws which are not contained in anystatutes and can be
found in case decisions. This is known asthe common law or case law .

In situations where there is no law governing a particular circumstance,

Malaysian case lawmay apply. If there is no Malaysian case law, English
case lawcan be applied. There are instances where Australian, Indian,and
Singaporean cases are used as persuasive authorities.
Unwritten laws are laws that are not enacted and not found in
any constitution. It comprises of English law (Common Law
and Equity), judicial decisions and customs. Common Law is a
major part of many States, especially Commonwealth
countries.

It is mainly made up of non–statutory laws, which are the

precedents derived from judgments given on real cases by
judges. Law of Equity resolves disputes between persons by
referring to principles of fairness, equality and justness.

In these cases, nothing was done against the law by the

parties to dispute, but their rights are in conflict. Thus, it is
different from law; both the Statutory Law enacted by
Parliament and State Legislatives andCommon Law which
consists of precedents and opinions givenon real cases by
judges.
Section 3(1)(a) Civil Law Act 1956 states that courts in Peninsular
Malaysia should apply Common Law and the Law of Equity as
administered in England on 7th April1956.

Section 3(1)(b) and Section 3(1)(c) of CivilLaw Act 1956 states that
courts in Sabah and Sarawak should apply common law and law
of equity together with the statutes of general application
as administered in England on 1st December 1951 and 12thDecember
1949 accordingly.

But it is not stated that the Common Law andLaw of Equity in Malaysia
should remain unmodified and follow the same law as administered in
England.

Common law and law of equity in Malaysia should be developed and

amended according to the local needs. In addition, these two laws
should also take into account of changes in these laws in England.

However, Malaysian government can set their own scope for the
amended or repealed CommonLaw and Law of Equity in Malaysia.
Australia v. Midford (Malaysia) Sdn.Bhd

It was held that the doctrine of sovereign or crown immunity which was
developed in English Common Law after 1956 should apply in Malaysia. It was
said that any developments in English Common Lawafter 1956 should apply in
Malaysia.

Smith Kline & French Laboratories Ltd. v. Salim (Malaysia) Sdn.Bhd.

It was held that the courts have the authority to put aside any Common Law or
Law of Equity which cannot be applied inMalaysia.

Jamil bin Harun v. Yang Kamsiah & Another

It was decided that courts have the authority to decide whether to follow
English Law (common law and law of equity) or Federal law, considering the
circumstances and the scope the written law permits to do so.

Karpal Singh v. Public Prosecutor

It was held that the criminal offences in Malaysia were provided by Criminal
Procedure Code of Malaysia and therefore, there is no allowance for English
law to apply.There are certain boundaries as to the application of Common
Law and Law of Equity in Malaysia.
Common law can apply in the absence of local legislation.
Local law is regarded highly that the English law.

The English law is only meant to fill in the lacuna, in which

the local legislation is not present.

Only the relevant part which is suited to the local needs and
circumstances applies.

Malaysia is made up of different races, each possessing their

own customs, different from English law.

The entire importation of English law means that the

sovereignty of local race is affected.
 fulfill
promise
realise what is
Legal remedies agreed

WHY CONTRACT?
secure rights ascertain
obligations

operationalise protection of interest

dealings
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