LAW 037

1. 1.1 CLASSIFICATION OF
LAW

2. CLASSIFICATION OF LAW
LA
W
PUBLIC
LAW
PRIVAT
E LAW
INTERNATION
AL LAW
RELATIONSHIP
BETWEEN
INDIVIDUAL AND
STATE
RELATIONSHIP
BETWEEN
STATES
RELATIONSHIP
BETWEEN
INDIVIDUALS
CRIMIN
AL LAW
CONSTITUTION
AL LAW
PRIVAT
E
PUBLIC
CONTRAC
T LAW
TRUST
S

3. 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.

4. 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 States
ii) Private International Law
 Consists of the rules that guide a judge
when the laws of more than one country
are involve in a case.

5. PRIVATE LAW

Concerned with matters that affect the rights
and duties of individuals amongst themselves.
i)
Contract
ii)
Tort
iii) Trust

6. 1.2 SOURCES OF LAW

7. 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.
Written
Islamic
Sources of Malaysian Unwritten
Law consists of :
• Constitution
• Legislation
• Subsidiary
Legislation
•
•
•
•
Customary
English
Judicial Decision
Jurist Writing

8. WRITTEN LAW
FEDERAL AND STATE CONSTITUTION
FEDERAL AND STATE LEGISLATION
SUBSIDIARY LEGISLATION

9. 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)

10. 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) Legislature
b) Executive
c) Judiciary

11. FEDERAL CONSTITUTION

Highest law of the land.

Article 4 mentioned about the Supremacy of
Constitution.

Case : Ah Thian v Government of Malaysia
Suffian 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.

12. 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


13. 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

14. 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

15. FEDERAL LEGISLATION

4 types of Act.
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.
 Principal

16. 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

17. LAW MAKING PROCESS IN
PARLIAMENT • Government Proposal (Discuss in ministry
level)
Pre-Parliamentary
Stage
First Reading
• Sent the proposal to the Parliamentary Draft
person in the Attorney General’s Chambers.
• The proposal becomes Bill.
• Cabinet gives approval for the bill.
• 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.
Second 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
Committee Stage
• If the Bill required more detailed and
scrutiny, the House may refer the Bill to a
selected committee but this rarely happen

18. Third Reading
House of Senate
Royal Assent
Publication
• 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
• The Bill is passed to the House of Senate.
• Similar produces with Dewan rakyat
• 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.
• An Act of Parliament only come into forces
upon it being published in gazette.

19. 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, notificatio
n, 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.

20. 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


21. HOW TO CONROL SL?

Judicial Control


Legislative Control


Legislature will delegated power by an enabling
statute may repeal the statute or revoke or vary the
delegated power
Consultation


Court has power to make judicial review and declared
the SL would be ultra vires either substantive and
procedural
Refer to certain professional bodies
Publication

Publish the SL

22. UNWRITTEN LAW
ENGLISH LAW
JUDICIAL DECISION
CUSTOMARY LAW
ISLAMIC LAW
JURISTS

23. 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]

24. 

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.

25. 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.

26. 
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.

27. 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.

28. 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
SESSIONS
COURT
MAGISTRATE
MAGISTRATE
COURT
COURT
SUPERIO
R COURT
HIGH COURT OF
SABAH AND
SARAWAK
SUBORDIN
ATE COURT

29. 




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.

30. ‘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.

31. 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.

32. 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.

33. 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.

34. 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

35. 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

36. ISLAMIC LAW

37. 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.

38. 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