CHAPTER 1:
AN INTRODUCTION TO THE
CONCEPT OF LAW IN MALAYSIA
BY
NOOR ZIRA AZLIN BTE MD ZAKI
OBJECTIVES
This chapter:
• defines the concept of law in
Malaysia in relation to the state
and the Constitution
PREVIEW
•
•
•
•
•
What is ‘Law’?
Law in Relation to Justice
Law and Ethics
Rule of Law
Law, the State and the Constitution
- Law in Malaysia
- What is a ‘State’?
• Classification of Law
- Public Law
- International Law
- Private Law
LAW
• is a means or device to regulate the economic and
social behaviour of society
• aims to preserve the economic and social welfare of our
society
• is needed to regulate and control the affairs of society
• is a regulatory device providing the mechanism for
society to function through tools such as legislation and
case-law
• guarantees our freedom, enables free enterprise and
provides a means to settle disputes amicably
WHAT IS‘LAW’?
• It is a set of rules that regulates interactions that
people have with each other, and which sets
standards of conduct between individuals and
between individuals and the government and
which are enforceable through sanction.
• To the layman, law is understood as being a general
rule of conduct.
• The Oxford English Dictionary defines law as ‘the
body of enacted or customary rules recognized by a
community as binding’.
WHAT IS ‘LAW’? (cont.)
•
Sir John Salmond in Jurisprudence, defines law as:
•
‘the body of principles recognized and applied by the
State in the administration of justice…’
•
John Austin in The Province of Jurisprudence
Determined, describes law as ‘a command set by a
superior being to an inferior being and enforced by
sanctions (punishments)’.
WHAT IS ‘LAW’? (cont.)
•
the term ‘law’ is defined both by Article 160(2) of the
Federal Constitution 1957 and Item (43C) of section 2(1)
of the Interpretation and General Clauses Ordinance
1948 to include:
(a) the written law
(b) common law insofar as it is in operation in the
Federation or any part thereof
(c) any custom or usage having the force of law in
the Federation or in any part
CASES
Danarharta Urus Sdn Bhd v Kekatong Sdn Bhd (Bar Council Malaysia,
Intervenor)
- meaning and application of “common law in so far as it is in operation
in the Federation or any part thereof”
Sri Inai (Pulau Pinang) Sdn Bhd v Yong Yit Swee:
Chung Khiaw Bank Ltd v Hotel Rasa Sayang Sdn Bhd & Anor
- development of common law in Malaysia
- Section 3 of the Civil Law Act 1956 permits the reception of the
common law of England in the Federation subject to the qualification that
it may be lawfully modified in the future by any written law
S Kulasingam & Anor v Commissioner of Lands, Federal Territory & Ors
- the legislature can by clear words exclude the principles of natural justice in
the absence of specific constitutional guarantees
LAW IN RELATION TO
JUSTICE
Law aims to maintain justice in society.
• Justice is an abstract idea of right and wrong; fairness
and equality.
• The aim of a given law is to encourage the doing of
what is right or just in a particular set of
circumstances.
• Justice is what right-minded members of the
community (that is, those having the right spirit within
them) believe to be fair.
LAW IN RELATION TO
JUSTICE (cont.)
•
Law attempts to represent what society
believes is right or fair.
•
However, in its application to a particular set of
circumstances, a law may not always appear
to be just.
LAW AND ETHICS
•
•
•
The purpose of law is to govern the conduct of all members
of society, whilst ethics guides individuals in ascertaining
the soundness of rules, and their impact upon
relationships.
Law and ethics, though of different concepts, are often
related.
Businesses often use legal standards in carrying out their
activities and in decision-making, businesses also adopt
codes of ethics or conduct.
RULE OF LAW
•
according to Dicey, the rule of law involves the following
three propositions:
1. No person must be punished except for a
breach of the law.
2. All persons are equal before the law
irrespective of status or position.
3. The rights or freedoms of citizens are
enforceable in the courts.
LAW, THE STATE AND THE
CONSTITUTION
•
law in Malaysia, which consists of Peninsular Malaysia,
Sabah and Sarawak, is one political unit but it is not
governed by the same set of laws
•
attempts are made to achieve uniformity in the law
throughout Malaysia but this is not possible in all areas of the
law
2 links uniting the two parts of Malaysia:
•
– the Parliament
– the Federal Court
WHAT IS A ‘STATE’?
•
legal systems are administered almost entirely on the basis
of the political unit known as the State
•
for international purposes, Malaysia is one state
•
within Malaysia, however, there are thirteen states
•
each state has a government and has rules which lay down
who shall govern and how
•
Malaysia has a written constitution – Federal Constitution –
the supreme law of the Federation
MALAYSIA FEDERAL
CONSTITUTION
WHAT IS A ‘STATE’? (cont.)
•
Article 4(1) of the Federal Constitution:
4. Supreme Law of Federation.
(1) This Constitution is the supreme law of the Federation and any law passed after
Independence Day which is inconsistent with this Constitution shall, to the extent of
the inconsistency be void.
• laws enacted by Parliament which are inconsistent with the Federal Constitution may
be declared void by the courts
• see R Rethana v The Government of Malaysia & Anor
c/f, Repco Holdings Bhd v Public Prosecutor
R Rethana v The Government of Malaysia & Anor and Danarharta Urus Sdn Bhd v
Kekatong Sdn Bhd (Bar Council Malaysia, Intervenor)
- both the plaintiffs sought declarations that an Act of Parliament was void because
of an alleged inconsistency with the Federal Constitution.
WHAT IS A ‘STATE’? (cont.)
Borhan bin Hj Daud & Ors v Abd Malek bin Hussin
- as the ISA is a special law made under art 149 of the Constitution,
the arrest and detention of the respondent was lawful. Article 149
provides that laws such as the ISA are valid notwithstanding their
inconsistencies with arts 5, 9, 10 and 13 of the Constitution.
Kam Teck Soon v Timbalan Menteri Dalam Negeri Malaysia & Ors and
other appeals
- in conflict with Mohamad Ezam bin Mohd Noor v Ketua Polis
Negara & other appeals which held that the ISA was still subject to the
rights under arts 5(3) and 149 of the Constitution and could not be
used to remove such rights.
WHAT IS A ‘STATE’? (cont.)
•
The Federal Constitution confers legislative power to the
Federal Parliament and the State legislatures.
• Article 73:
73. Extent of Federal and State Laws
In exercising the legislative powers conferred on it by
this Constitution:
(a)Parliament may make laws for the whole or any
part of the Federation and laws having effect outside
as well as within the Federation
(b)The legislature of a State may make laws for the whole
or any part of that State
WHAT IS A ‘STATE’? (cont.)
•
•
parliament may make laws for the whole of Malaysia
Article 74:
Parliament may make laws with respect to any of the
matters enumerated in the Federal List or the
Concurrent List.
The Federal List:
1. External affairs
2. National defence
3. Internal security
WHAT IS A ‘STATE’? (cont.)
4. Civil and criminal law and procedure and the
administration of justice
5. Federal citizenship and naturalization; aliens
6. The machinery of government
7. Finance
8. Trade, commerce and industry
9. Shipping, navigation and fisheries
10. Communications and transport
11. Federal works and power
12. Surveys, inquiries and research
WHAT IS A ‘STATE’? (cont.)
13. Education
14. Medicine and health
15. Labour and social security
16. Welfare of the aborigines
17. Professional occupations
18. Holidays; standard of time
19. Unincorporated societies
20. Control of agricultural pests; etc
WHAT IS A ‘STATE’? (cont.)
21. Newspapers; publications; publishers; printing and printing
presses
22. Censorship
23. Theatres; cinemas; public amusements
24. Federal housing and improvement trusts
25. Co-operative societies
26. Prevention and extinguishment of fire, including fire
services and fire brigades
Tan Sri Abdul Khalid Ibrahim v Bank Islam (M) Bhd - considered
Item 4 of the Federal List
WHAT IS A ‘STATE’? (cont.)
The Concurrent List:
1. Social welfare, social services, protection of
women, children and young persons
2. Scholarships
3. Protection of wild animals and wild birds;
National Parks
4. Animal husbandry
5. Town and country planning
6. Vagrancy and itinerant hawkers
WHAT IS A ‘STATE’? (cont.)
7. Public health, sanitation and prevention of diseases
8. Drainage and irrigation
9. Rehabilitation of mining land and land which has
suffered soil erosion
10. Fire safety measures and fire precautions in the
construction and maintenance of buildings
• matters enumerated in the Concurrent List may also
be the subject-matter of laws made by the state
legislatures
• the State Legislature may also make laws with
respect to any of the matters in the State List
WHAT IS A ‘STATE’? (cont.)
The State List:
1. Islamic law and personal and family law of Muslims;
Malay customs; offences by Muslims; Syariah Courts
2. Land
3. Agriculture and forestry
4. Local government
5. Local services
6. State works and water
WHAT IS A ‘STATE’? (cont.)
7. Machinery of the State Government
8. State holidays
9. Offences against State Law
10. Inquiries for State purposes
11. Indemnity
12. Turtles and riverine fishing
WHAT IS A ‘STATE’? (cont.)
•
see Mamat bin Daud & Ors v Government of Malaysia,
Ketua Pengarah Jabatan Alam Sekitar & Anor v Kajing
Tubek & Ors and other appeals
•
if any state law is inconsistent with a Federal law,
the Federal law shall prevail – Article 75, Federal
Constitution
WHAT IS A ‘STATE’? (cont.)
•
if any State law is inconsistent with a Federal law, the
Federal law shall prevail and the State law shall, to the
extent of the inconsistency, be void.
•
State legislatures have the power to make laws with
respect to any matter not enumerated in any of the Lists
set out in the Ninth Schedule and which are not a
matter in respect of which Parliament has power to
make laws
STATE OF MALAYSIA
CLASSIFICATIONS OF LAW
Major legal systems:
• Civil law
• Common law
• Sino–Soviet
• Islamic
• Hindu
• Talmudic
CLASSIFICATIONS OF LAW
(cont.)
•
in general, the legal systems of the world are classified into 3
main types:
a) Civil law
b) Common law
c) Socialist law
•
the Malaysian legal system is a common law system
•
in Malaysia, law has been classified into 3 broad divisions:
a) Public law
b) International law
c) Private law
PUBLIC LAW
•
•
Define : law which governs the relationship
between individuals and the state
subdivided into two categories:
Constitutional law
b) Criminal law
a)
•
•
constitutional law lays down the rights of
individuals in the state
criminal law codifies the various offences
committed by individuals against the State
CASES RELATING TO
CONSTITUTION
Ng Kim Moi (P) & Ors v Pentadbir Tanah Daerah, Seremban,
Negeri Sembilan Darul Khusus (Negeri Sembilan Township
Sdn Bhd & Anor, Proposed Internors)
S Kulasingham & Anor v Commissioner of Lands,
Federal Territory
Government of Malaysia & Anor v Selangor Pilot Association
Ong Ah Chuan v Public Prosecutor
INTERNATIONAL LAW
•
body of law which is composed for its greater
part of the principles and rules of conduct
which states feel themselves bound to
observe, and consequently commonly do
observe, in their relations with each other
•
subdivided into two categories:
– Public international law
INTERNATIONAL LAW (cont.)
– Private international law (‘conflict of laws’)
• A part of municipal law
• Rules that guide a judge when the laws of more
than one country affect a case
•
two main sources of international law that affect
businesses:
a) Customary Rules of International Law
b) Treaties and Conventions
PRIVATE LAW (CIVIL LAW)
•
•
•
matters that affect the rights and duties of
individuals amongst themselves
intended to give compensation to persons
injured, to enable property to be recovered from
wrongdoers, and to enforce obligations
(contracts and trusts)
covers:
– Contract
– Tort
– Trust
PRIVATE LAW (CIVIL LAW)
(cont.)
Contract
•
based on agreement
•
essential elements in a contract:
1.
2.
3.
4.
Offer
Acceptance
Capacity to contract
No mistake, misrepresentation or
undue influence
5. Object must be lawful
6. Intention to enter into legal relations
7. Consideration
PRIVATE LAW (CIVIL LAW)
(cont.)
Tort
• based on an obligation imposed by law
• a civil wrong
• the breach of a general duty which is imposed
by the law (and not agreed between the
parties)
• remediable by a civil action for unliquidated
damages
PRIVATE LAW (CIVIL LAW)
(cont.)
•
any person whose legal right is infringed
may sue that wrongdoer
•
essential elements of a tort:
–there must be an act or omission done
intentionally or negligently
–there must be damage caused by such act
or omission which is not remote
PRIVATE LAW (CIVIL LAW)
(cont.)
Trust
• an equitable obligation binding a person (a
trustee) to deal with property over which he
has control (trust property) for the benefit of
persons (beneficiaries or cestui que trust) of
whom he may himself be one and any one of
the beneficiaries may enforce the obligation
REVIEW
•
•
•
•
•
Explanation and Definition of ‘Law’
Law in Relation to Justice
Law and Ethics
Rule of Law
Law, the State and the Constitution
- Law in Malaysia
- Concept of a ‘State’
• Classification of Law
- Public Law
- International Law
- Private Law
NOOR ZIRA AZLIN BTE M ZAKI
LAW LECTURER