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INTRODUCTION TO LAW

Subject Media Law


Lecture 1

Nor Aishah Muyop

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Definition of Law
3. Enforced by
State/Person

4. Adjudicated by 5. Subject to sanctions


Judiciary

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What is Ethics?
Ethics What is right? What ought to be? Not simply accepting facts as
it is.
Law to govern the conduct of all members of society (natural &
artificial).
Ethic considerations form of moral standards and beliefs.

Both law and ethics are important to business. Why?


Legal standards for activities & decisions
Decision making process refer to applicable code of ethics
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Classification of Law

1) Domestic Law

2) International Law

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LAW

Domestic International Law Domestic


Public Law Private Law

Public IL Private IL

Constitutional Criminal Contract Tort Trust


& Admin. Law Law

Private Law Civil Law


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Understanding Basic Legal Terms
What is Contract?
An agreement which is based on a set of promises and is legally enforceable.
Elements of contract Offer, Acceptance, Capacity to contract, Lawful Object,
etc.
What is Tort?
an obligation imposed by law and can be recovered via civil action for
unliquidated damages.
Elements of tort negligence, duty of care, causation & remoteness, etc.
What is Trust?
An equitable obligation binding a person (trustee) to deal with property (trust
property) of which he has control for the benefits of the beneficiaries.

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Public Law
Public law involves the individuals and State.
2 categories of Public Law are:-
Constitutional Law & Administration Law rights of individual
in a State, any disputes over constitutional matters, e.g.
supremacy of Parliament, state & federal powers.
Criminal Law - laws for the protection of the society & state
and to maintain law and order. Criminal offences such as
cheating, robbery, murder, etc.

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International Law
A body of rules established by custom or treaty and recognized by
nations as binding in their relations with one another.
Can be subdivided into 2 categories:-
Public international law between states &
intergovernmental organizations on issues such as global
trade, environmental, human rights violations.
Private international law regulates the relationship between
different sovereign states on issues that govern the citizen of
the respective state.
E.g. Uniform Custom & Practice 600 (UCP 600), treaties &
conventions.
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Private Law/ Civil Law
Law on matters that affects the rights & duties of the individuals
among themselves.

If acted by individual, it is intended to give compensation to the


injured person and to enforce obligations (contract/trust).

Examples: Tort, Contract, Employment Law, Property Law, Family


Law, Labour Law, Commercial Law, etc.

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Sources of Law
Sources of law can be found in:-
Historical sources Religious belief, local customs,
opinion of jurists, historical development.

Legal sources Legal rule that makes up the law.

Formal sources Statutes, law reports, text books.

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Sources of Law
Written Law
Unwritten Law
Customary Law
Islamic Law

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WRITTEN LAWS

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Sources of Malaysian Law

Sources of Malaysian Law

Unwritten Law Islamic Law


Written Law

Federal State English Law Customary


Constitution Constitutions Law

Judicial Decisions
Legislation

Common Law Equity


Subsidiary Legislation
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Malaysian Legal System
Malaysia consist of Peninsular Malaysia & Sabah and Sarawak.
Federal & State Government whereby 13 states with its own
government and rules.
The Parliament of Malaysia & The Federal Court of Malaya are links
that unite the two parts of Malaysia whereby:-
Parliament - legislate laws;
The Federal Court - a final court of appeal.

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1) The Federal Constitution
This is the supreme law of the land.
Any law passed must be consistent with the Federal Constitution.

It means the law that was enacted must be consistent with the provisions
in the Federal Constitution. (Article 4 of FC)

The Constitution lays down:-


The structure of Federal and State Governments
Legislative powers of Parliament and State Legislative Assemblies-
Schedule 9 (List 1, List 2 & List 3)
The fundamental rights of individual (Articles 5 to 13)
and many more.

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2) The State Constitutions
There are 13 States in Malaysia. Each state has its own Constitution.

The provisions in a State Constitution is regulated by Schedule 8 of the


Federal Constitution.

Generally the State Constitution touches on:


the State Ruler,
the State Government,
the State Legislative Assembly etc.

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3) Legislation
Legislation is the law which is enacted by:-

The Federal Parliament; and


State Legislative Assembly.

It is a very important source of law.

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Terminology
LAWS ENACTED BY:-

ACT Federal Parliament

Law enacted by State


ENACTMENT Legislative Assemblies

Law enacted by Sarawak


ORDINANCE State Legislative Assembly
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4. Subsidiary Legislation
It is enacted by persons or bodies to whom the power
is delegated.

Such persons or bodies may include:-


Yang di-Pertuan Agong;
Ministers; and
Local Government Authorities.

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4. Subsidiary Legislation
The Parliament enacts the main and basic laws leaving the detail
and technical matters to be handled by subsidiary legislation due
to time constraint and lack of technical knowledge.

E.g. various parking rules set out by municipal councils, income tax
rules made by the tax department etc.

The subsidiary legislation cannot contravene the main Act (Parent


Act) or the Constitution.

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UNWRITTEN LAWS

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Unwritten Laws
Unwritten law means the law which is not made by the
Parliament or State Legislative Assembly.
There are 4 types of unwritten law:-
English common law and rules of equity.
Judicial decisions/precedents.
Customs and
Islamic law

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I. English Common Law and Equity
Section 3(1) of the Civil Law Act, 1956 provides that English
Common Law and Equity (statute of general application in Sabah
and Sarawak only) will be applicable subject to 2 restrictions:

1) There should not be no local law governing the particular


issue; and
2) That part of English law must be suitable to the local
customs and circumstances of the people of Malaysia.

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English Common Law and Equity (and Statutes of
General Application for Sabah and Sarawak only)

7 April 1956

1 December 1951

12 December 1949

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II. Judicial Decisions
Law can also be found in decisions of the Courts of Malaysia.
These decisions are made systematically and it is regulated by
doctrine called Doctrine of Binding Judicial Precedent.
Vertical application of the doctrine
Decision of superior courts such as Federal Court bind courts
below it in the hierarchy
Horizontal application of the doctrine
Superior court such as Court of Appeal bound by previous
decision

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Doctrine of Binding Precedents
What is Precedent?
Means a judgment or decision of a Court of Law cited as an authority
for the legal principle in its decision.
Doctrine of Binding Precedents is known as Doctrine of Stare Decisis

Ratio decidendi- Reason for the decision by Judge and binding for
similar cases in the future.
Obiter dictum- (sayings by the way) whereby any facts about the law
which does not part of the judgment. No binding power although
extremely influencing in lower courts.

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Application of Doctrine of Judicial Binding
Precedent-example

The Federal Court (Superior Court in Malaysia) decided


that a minor is not liable under contract.

If a minor is sued in the High Court for not fulfilling his


obligation in a contract, the High Court will follow
previous decision of the Federal Court.

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III. Customs
It is the customs of the local inhabitants of Malaysia.

Mostly customs relating to marriage, divorce and


inheritance are given legal force.
E.g. Adat Temenggong and Adat Perpatih.

The problems relating to customs can be settled by


Penghulus Court or by Native Court in the case of Sabah and
Sarawak.

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IV. Islamic Law
Islamic law pertaining to personal law of Muslims and Islamic law
pertaining to some criminal offences against Islam is a State
matter.
This law is only applicable to Muslims and it is administered
in the Shariah Court.
The power to administer the Shariah Court is left to the
respective state.
The civil court has no jurisdiction over a matter within jurisdiction
of the Shariah Court.(A121A of FC)

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Doctrine of Separation of Powers
Under the Federal Constitution of Malaysia - Yang Di- Pertuan Agong is
the head of country & 3 main authorities are:-
1. Executive

2. Legislative SEPARATION OF POWERS

3. Judiciary

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(1) The Executive Authority
Involves in administering the nation and ensuring that government
policies are carried out in accordance with the law. E.g: The Prime
Minister & The Cabinet.
The government departments which assist in administering the
nation are part of the executive. E.g. The Ministry & government
agencies.
The duties & responsibilities must be done according to the powers
granted by the law so that it will not be void and be held as ultra
vires (no effect).

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(2) The Legislative Authority
Will enact law so that the administration of the government and
country could run smoothly. E.g: The Parliament & State Assemblies.
Cannot interfere with the Executive because the administration are
undertaken by the Executive.
Law will be enacted in accordance with the interest of the citizen.
The voice of the people will be heard through their appointed
representatives at Dewan Negara & Dewan Rakyat.
Law enacted by the Legislative will govern the people, the states
including the 3 government authorities.

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(3) The Judiciary Authority
Interpret and decide the cases according to the law enacted by the
Legislative. E.g The Federal Courts, High Courts, Session Courts &
Magistrate Courts.

The system of court in Malaysia plays an important role in


determining as to whether action done is legal or illegal and in
resolving any dispute or disagreement between the parties.

All parties will be treated equally and the Judiciary is free to make
judgments without coercion, fear or favour.

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Malaysian Judicial Legal System

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Judicial Legal System in Malaysia
Judicial System evolves around the Court structure.
Litigation the process of instituting and defending a legal action
in a court of law.
Role of the Court is concerning administration of the law and
decide cases.
Crime committed by the wrongdoer will be prosecuted in a
Criminal Court whereby the action is brought by the State, i.e. via
Public Prosecutor.
A civil case is brought by parties enforcing their legal rights under
civil law such as contract, defamation, etc.

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Judicial Legal System in Malaysia

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Subordinate & Superior Courts in Malaysia
Subordinate Courts Superior Courts

Peninsular Malaysia - High Courts


Penghulu Courts Industrial Courts
Sabah & Sarawak- Native Court of Appeal
Courts
Federal Court
Magistrate Courts
Juvenile Courts
Session Courts

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(1) Federal Court
The Federal Court is the highest judicial authority in Malaysia and established
under Article 121(2) of the Federal Constitution. Its decision binds all the courts
below.
Jurisdiction:-
To hear appeals of civil decisions of the Court of Appeal where the Federal
Court grants leave to do so.
To hear criminal appeals from the Court of Appeal, but only in respect of
matters heard by the High Court in its original jurisdiction (i.e. where the case
has not been appealed from the Subordinate Courts).
Exclusive jurisdiction on the validity of any laws enacted by
Parliament/Legislative Authority & dispute on any matter between Federal &
State Government.
The highest position in Federal Court in Peninsular Malaysia is the Chief Justice of
Federal Court of Malaysia
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(2) Court of Appeal
The Court of Appeal is an appellate court of the judiciary system in
Malaysia. (hears the appeal of a trial court or lower tribunal).
It is the second highest court in the hierarchy below the Federal
Court.
This court was created in 1994 so as to create a second tier appellate
court after the Privy Council appeals to the United Kingdom was
abolished in 1985.
The court is headed by the President of the Court of Appeal, who is
the 2nd most important person in Malaysian judiciary after the Chief
Justice of Malaysia.
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3) The High Court
There are 2 High Courts:
High Court of Malaya (Peninsular Malaysia);
High Court of Borneo (Sabah & Sarawak)
Jurisdiction:
Criminal hear cases which carry death penalty.
Civil - in divorce & matrimonial causes, bankruptcy & company
cases, appointment and control of guardians of infants, disabled
persons & their property & grant of probates of wills & Letters of
administration.

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4) The Session Court
Jurisdiction:
Criminal - to try all offences other than offences punishable with
death.
Civil:
running down cases, landlord and tenant & distress;
other suits where the amount in dispute does not exceed
RM250,000;
Subject to the consent of the parties involved, to try cases
exceeding RM250,000 but the award is limited to the statutory
limit of RM250,000 only.

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5) The Magistrate Court
Jurisdiction:
Criminal - to try all offences where maximum term of imprisonment
not exceeding 10 years & punishable with fine only. Eg. Cheating,
robbery, housebreaking, theft.
Civil - suits of a civil nature where the amount in dispute does not
exceed RM25,000.
Pass any sentence allowed by law not exceeding:
5 years imprisonment;
a fine of RM10,000.00;
whipping up to 12 strokes; or
any combination of the sentence above.

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6) Small Claims Court
Amount in dispute RM5,000

No need for legal representation

Heard by 1st class Magistrate

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7) Juvenile Court
Court for young offenders of >10 and <18 years old.

Try all offences except punishable with death.

Not open to public

Malaysian Child Act 2001


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8) Special Tribunals

The Special
Industrial Court Commissioners
Public Services For Income Tax
Tribunal
Courts Martial

Professional Disciplinary
Housebuyers Bodies
Labor Court
Tribunal

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Important Legislation Pertaining to Jurisdiction
of Courts

Courts of Judicature Act 1964

Subordinate Courts Act 1948

Federal Constitution

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CIVIL LAWS
Settles disputes between individuals/companies/corporations.
Civil cases are brought to uphold the rights of individuals and to
provide redress such as damages, compensation.
A civil case is brought by an individual/company/corporation.
Civil cases only have to be proven on the balance of probabilities.
At the end of a case, the party at fault has to pay compensation
or comply with another suitable remedy, such as an injunction.

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CRIMINAL LAW

Creates laws for the protection of the society as a whole and to


maintain law and order.
Provides punishment for those who break the law.
Sets out types of behaviour that are forbidden within a society.
Criminal cases must be proven beyond reasonable doubt.
Criminal cases are usually brought on behalf of the State.
At the end of a case, if the defendant is found guilty, he will be
punished by the State.

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Thank You

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