1.1 CLASSIFICATION OF LAW

CLASSIFICATION OF LAW

LAW

PUBLIC LAW

RELATIONSHIP BETWEEN

INDIVIDUAL AND STATE

CRIMINAL LAW

CONSTITUTIONAL LAW

PRIVATE LAW

RELATIONSHIP BETWEEN

STATES

PRIVATE PUBLIC

INTERNATIONAL LAW

RELATIONSHIP BETWEEN

INDIVIDUALS

CONTRACT LAW

TRUSTS

PUBLIC LAW

It governs the relationship between individuals and the state

i) Constitutional Law Lays down the right of indv. In the

state. Deals with questions such as

supremacy of Parliament & rights of citizens

ii) Criminal Law Codifies the various offences

committed by indv. against the state.

INTERNATIONAL LAW

A body of law which is composed to lay down principles and rules of conduct which the States feel themselves need to observes in regulating the relationship with each other.

i) Public International Law The law that prevails between Statesii) Private International Law Consists of the rules that guide a judge

when the laws of more than one country are involve in a case.

PRIVATE LAW

Concerned with matters that affect the rights and duties of individuals amongst themselves.

i) Contractii) Tortiii) Trust

1.2 SOURCES OF LAW

SOURCES OF LAW

Sources - a place which something comes or is obtained.

Source of law can be found in : a) Historical sources – Religious belief, local

customs, opinion of jurists, historical development.

b) Legal sources – Formal sources that make law.

Sources of Malaysian Law consists of :

Written

• Constitution• Legislation• Subsidiary

Legislation

Unwritten

• Customary• English• Judicial

Decision• Jurist Writing

Islamic

FEDERAL AND STATE CONSTITUTIONFEDERAL AND STATE LEGISLATIONSUBSIDIARY LEGISLATION

WRITTEN LAW

FEDERAL & STATE CONSTITUTION The body of legal and non-legal rules

concerning the government of a state.

A single written document having special legal status, which establishes the state and sets out the structure and powers of the state.

In Malaysia 2 types of constitution involves : Federal Constitution State Constitution ( Undang-Undang Tubuh

Kerajaan Negeri)

KEY ELEMENTS OF THE MALAYSIAN CONSTITUTION

The constitution

is the Supreme Law of

Malaysia

Malaysia is a Constitutional Monarchy

There are three

branches of Government a) Legislatur

eb) Executivec) Judiciary

FEDERAL CONSTITUTION

Highest law of the land.

Article 4 mentioned about the Supremacy of Constitution.

Case : Ah Thian v Government of MalaysiaSuffian LP pointed out ‘The doctrine of

supremacy of Parliament does not apply in Malaysia. Here we have written constitution. The power of Parliament and of State Legislatures in Malaysia is limited by the Constitution and they cannot make any law as they please.

STATE CONSTITUTIONS

Called as Undang-Undang Tubuh Negeri. Have in 13 states.

Provide State Legislative Assembly to make law (Enactment)

State Government headed by Menteri Besar (with Sultan) and Ketua Menteri (no Sultan).

Malay Rulers may act under his discretion on following matters :

Appointment of Menteri Besar Witholding consent to request dissolution of

Legislative Assembly Head of Islam Appointment of Heirs, Consort, Regent, Council of

Regency Regulation of Royal palaces and courts Privileges, positions, honour and dignity of Royal

Highness at Conference of Rulers Meeting

CONSTITUTIONAL AMENDMENT Art 159 and Art 161E

Simple Majority 2/3 majority of total members of Dewan

Rakyat. 2/3 majority + Conference of Rulers 2/3 majority + Consent from YDP Negeri

Sabah and Sarawak

LEGISLATION

Law enacted by the legislature and by bodies and persons authorized by the legislature.

Legislatives bodies in Malaysia Federal : Parliament (Dewan Rakyat dan

Dewan Negara) Called as ACT

State : Legislative Assembly Called as Enactment and Ordinance

(Sarawak) Word Ordinance also used for any law passed

before Merdeka Day and YDPA in case of Emergency (Art. 50)

FEDERAL LEGISLATION

4 types of Act. Principal Act – main Act like Contract Act

1950 Amendment Act – changes in Principal Act Revised Act – changes made by

Commisioner of Law Reform such as Civil Law Act 1956 (Revised 1972)

Consolidated Act – bring together simple Act or more on specific matters.

LEGISLATIVE PROCESS

Before any law can be called as Act, they are known as Bill.

Three types of Bill involved: Public Bill - Matters concerning defence,

taxation, public order Private Bill – local or private matters Hybrid Bill – public matters that also affect

private bodies

LAW MAKING PROCESS IN PARLIAMENT• Government Proposal (Discuss in ministry level)

• Sent the proposal to the Parliamentary Draft person in the Attorney General’s Chambers.

• The proposal becomes Bill.• Cabinet gives approval for the bill.

Pre-Parliamentary

Stage

• When a bill is first introduced by one of the two houses, only the title is actually read. After the Bill is passed at this stage, the text is printed and distributed.

First Reading

• The minister will present the outline of the Bill.

• The house will debate on the principle• If the bill receives the required number

of votes, it will proceed to committee stage

Second Reading

• If the Bill required more detailed and scrutiny, the House may refer the Bill to a selected committee but this rarely happen

Committee Stage

• The bill is review again.• Debates will centered on general

principles.• Substantives amendments are no

longer allowed except with permission of the speaker to correct errors

Third Reading

• The Bill is passed to the House of Senate.

• Similar produces with Dewan rakyatHouse of Senate

• Under Art. 66(4), the YDPA shall within 30 days after the Bill is presented to him, assent to the Bill by causing the Public Seal to be affixed thereto.

• If 30 days expire and no assent is given, the Bill becomes law.

• Once the Bill is given Royal Assent, it becomes an Act.

Royal Assent

• An Act of Parliament only come into forces upon it being published in gazette.

Publication

SUBSIDIARY LEGISLATION

Law made through powers delegated by legislature to a body/person via enabling or parent statute.

Section 3 interpretation Act 1948 and 1967 defines as ‘any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Act, Ordinance or other lawful authority and having legal effect’

Example : Various parking rules made by municipal councils.

ADVANTAGES AND DISADVANTAGES OF SL

Advantages Save time for Legislatures Technical Expertise Flexibility and Convenience Legislation can continue even not in

sessions Disadvantages

Loss of Legislative control Bulk and frequent changes

HOW TO CONROL SL?

Judicial Control Court has power to make judicial review and

declared the SL would be ultra vires either substantive and procedural

Legislative Control Legislature will delegated power by an enabling

statute may repeal the statute or revoke or vary the delegated power

Consultation Refer to certain professional bodies

Publication Publish the SL

ENGLISH LAWJUDICIAL DECISIONCUSTOMARY LAWISLAMIC LAWJURISTS

UNWRITTEN LAW

ENGLISH LAW

Application of English Law in Malaysia Section 3 and Section 5 Civil Law Act 1956 stated

the application of English Common Law and Equity in Peninsular Malaysia.

Section 3 (1) (a), West Malaysia apply common law and equity as administered in England on 7th April 1956

Section 3 (1) (b) and (c), apply the common law and equity together with statutes of general application as administered in England on

Sabah [1st December 1951] Sarawak [12th December 1949]

Section 5 (1), all states apply English Common Law including Statutes on 7th April 1956

Section 5 (2), Penang, Malacca, Sabah and Sarawak can use relevant and applicable English Common Law continously.

SITUATIONS THAT ENGLISH LAW CAN APPLY

Suitable for local circumstances Case : Syarikat Batu Sinar v UMBC Finance as the

Judge said that ‘…we have to develop our own common law…by directing our minds to the ‘local circumstances’ and ‘local inhabitants.’

Case : Leong Bee v Liang Nam Rubber Works. The use of Section 3 must be permitted by local circumstances.

Absence of local laws Case : AG Malaysia v manjeet Singh Dillon.

Absence of local legislation on contempt of court must be referred to the English Common Law.

Cut off date Case : Lee Kee Cheong v Empat Nombor

Ekor Sdn. Bhd. Cut off date must be followed

Case : Jamil Harun v Yang Kamsiah. Any changes after this date would only rendered as persuasive and not binding.

SITUATIONS THAT ENGLISH LAW CAN APPLY

Section 5 (1) and (2) Case : Seng Djit Hin v Nagurdas Purshotumdas. The application of statutes administered in England could be allowed if failure to deliver goods (sugar) that causes damages. Two English statutes were allowed to applied in SS However, in Sheikh Sahied Abdullah Bajerai v

Sockalingam Chettiar. The use of statutesin moneyhandling transaction was not allowed since it only to control activities in England.

JUDICIAL DECISIONS

Law can be created through decisions made by judges of Superior Courts and Subordinate Courts

FEDERAL COURT

COURT OF APPEAL

HIGH COURT OF MALAYA

HIGH COURT OF SABAH AND SARAWAK

SESSIONS COURT

MAGISTRATE COURT

MAGISTRATE COURT

SUPERIOR COURT

SUBORDINATE COURT

Where material facts are the same, court must follow prior decisions, its own prior decisions.

The judicial decision that binds called as ‘ratio decidendi’ (reason for decision) extract from ‘obiter dictum’ (remark in passing judgement)

The judicial decisions of superior courts binding subordinate courts in the doctrine of judicial binding precedent or ‘stare decisis’

Rationale – justice; similar material facts, certainty, development of law.

Disadvantage – rigid, illogical, complexity of laws.

‘STARE DECISIS’

When the cases having same material facts, the subordinate court must follow prior decision of higher court, its own prior decision or the same level of courts’ decision.

Two ways operation: Vertical – a court bound by decision of

higher court. Horizontal – some courts bound by its own

previous decision, decision of predecessor, court with coordinate jurisdiction.

CASES OF STARE DECISIS

This doctrine affirms to the case of PP v Datuk Tan Cheng Swee. Chang Min Tatt FJ stated ‘… it is however necessary to reaffirm the doctrine of stare decisis which the Federal Court accepts unreservedly and which it expects the High Courts and other inferior courts in common law such as ours, to follow similarly…’

When two conflicting decision of Federal Court, follow the later decision – Dalip Bhagwan Singh v PP.

EXCEPTION OF STARE DECISIS Judge would not applied early

precedents if : Precedent laid down by lower court where

case on appeal Per Incurium ( wrongfully decided) Material differences in the fact of case.

CUSTOMARY LAW

The regular pattern of behaviour accepted by a given society as binding upon itself.

Customs are proved through repeated acts practised over long period of time, leading to conclusion that by common consent they have become accepted norm, or the law of the place, exclusion of ordinary law.

Article 160 – Customs and usages having the force of law.

APPLICATION OF CUSTOMARY LAW

Sahrip v Mitchell and Endain – test on reasonableness of customs, used in proving English customs, to determine if a custom accepted. The Malay Custom on land tenure which

provided payment of tithe of 1/10 of total produce was good and reasonable custom.

Maxwell CJ affirm the existance of the customs must be based on : Long usage Reasonable and well suited To late to question the existence of customs

WRITING OF JURISTS

Would become references in deciding cases and references of future laws

Islamic Law matters – Prof Hashim Kamali used in deciding several cases like Meor Attiqurrahman (serban’s case)

Others – MB Hooker, RJ Wilkinson, Prof Ahmad Ibrahim

ISLAMIC LAW

ISLAMIC LAW (SYARIAH)

Sacred law of Islam revealed through Prophet Muhammad (p.b.u.h) in the Quran and Sunnah.

Malay-Muslim Law was the basic law of the land before British intervention.

After British intervention, Muslim Law had been reduced to manage personal matters.

However, civil courts still acknowledged the importance of Islamic Law to local circumstances and not as foreign law. (Ramah v Laton)

Syariah courts dealing with matters of Islamic Law like family, dividing property, maintenance.

Administration of Islamic Law – Majlis Agama Islam, Mufti, National Fatwa Committee.

APPLICATION OF ISLAMIC LAW IN FEDERAL CONSTITUTION

Article 3 – Islam religion of the Federation. But in Che Omar Che Soh, Article 3 does not establish Malaysia as Islamic State.

Article 11(4) – restrict the propagation of other religion to muslims

Article 12 (2) lawfully to maintain Islamic Institution

Article 121(1A) – High Court cannot interfere with matters in Syariah Court

Paragraph 1 List II Ninth Schedule – Permits state power to create and punish offences related to Islam