MALAYSIAN LEGAL SYSTEM

QSM 457 CONSTRUCTION LAW

WHAT IS LAW?
Category of Law: Contract law  Tort Law  Criminal Law  Constitution Law  Property Law  Trust Law  Administrative Law  International Law  Etc.

Emphasised on the GENERAL RULE OF CONDUCT

WHAT IS LAW ?
Oxford English Dictionary (Lee Mei Pheng, 2005) 'the body of enacted or customary rules recognised by a community as binding' Sir John Salmond, Jurisprudence (Lee Mei Pheng, 2005) 'the body of principles recognised and applied by the State in the administration of justice law consists of the rules recognized and acted on by courts of justice.'

WHAT IS LAW ?
Law is generally the procedures and the rules of conduct or act which one uses ones every senses in order to harmonize the convenient of oneself and or another Article 160(2) of the Federal Constitution Law includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force in the Federation or any part thereof

WHAT IS LAW ?
The aims of law are mainly: To attain justice  To encourage the doing of what is right or in a particular set of circumstances

just

WHAT IS LAW ?
Law in Malaysia : Sabah and Sarawak are also governed under the same set of law.  Two important links the Parliament and the Federal Court. Are originated from: - England : Common law  - India : Criminal law and Contract law  - Australia : Land law

WHAT IS LAW ?
Law in Malaysia : Supreme law that applies throughout the country is known as the Constitution of Malaysia.  This federal law (Constitution of Malaysia) constitutes:


Legislations Courts Administrative aspects of law Powers of the government The government monarchy Rights of the citizens

The Federal Constitution of Malaysia: Yand Di-Pertuan Agong Act as the head of country Devided into three main authorities, which are...

Yang Di pertuan Agong

Executive Authority Prime Minister Ministers Government Ministries Government departments

Legislative Authority Parliament

Judicial Authority Chief Judge Courts

Senate House of Representative citizen

LAW CONCERNS ALL PARTIES!!

The project manager

Client

Main contractor Sub contractor

Architect

THE CONSTRUCTION PROJECT TEAM and/or the community

Nom. Sub contractor

C&S engineer suppliers M&E engineer Landscape architect Quantity Surveyor

Bankers

WHAT IS A STATE ?
Article 160(2) of the Federal Constitution  State means a state of Federation  Sultan or Yang Di-Pertuan Negeri is the head of state.  Every State has a government and has a written constitution which institute who shall govern and how.

WHAT IS A CONSTITUTION ?
Sinha & Dheeraj, Legal Dictionary, ILBS, Petaling Jaya, p. 44 Constitution is the fundamental law of a state or nation. Article 4(1) of the Federal Constitution states: This Constitution (the Federal Constitution) is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency be void.

R. Rethana v The Government of Malaysia & Another [1988] 1 MLJ 133 Repco Holdings Bhd v Public Prosecutor [1997] 3 MLJ 681

WHAT IS A CONSTITUTION ?
Article 73 of Federal Constitution states: 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.

Article 74 of Federal Constitution

Federal List

State List

Federal Goverment

Federal + State Govermen t

State Goverment

WHAT IS A CONSTITUTION ?
Mamat bin Daud & Others v Government of Malaysia [1988] 1 MLJ 119 Ketua Pengarah Jabatan Alam Sekitar & Anor V Kajing Tubek & Ors and Other Appeals [1997] 3 MLJ 23

WHAT IS A CONSTITUTION ?
Article 75 of Federal Constitution:  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.

PER CONTENT
SUBSTANTIVE LAW AND PROCEDURAL LAW Sinha & Dheeraj, Legal Dictionary, ILBS, Petaling Jaya, p. 195  Substantive law is concerned with the determination of rights and legal powers. It is distinguished from procedure, which is concerned with the legal operations by which these rights and powers are discovered and enforced.

PER CONTENT: Substantive Law

   

Is the statutory or written law that governs rights and obligations of those who are subject to it. It defines the legal relationship (right and obligations) of people with other people or between them and the state. It refers to all categories of public and private law Some of substantive law was derived from principles found in judicial decisions or in common-law

PER CONTENT: Procedural Law



It comprises the rule by which a court hears and determines what happens in civil lawsuit or criminal proceedings. The rules are designed to ensure a fair and consistent application to all cases that come before a court. The time allowed for one party to sue another and the rules of law governing the process of the lawsuit are examples of procedural laws.

PER ENFORCEMENT: Public Law

Sinha & Dheeraj, Legal Dictionary, ILBS, Petaling Jaya, p. 166  Public law is that branch of the law which is concerned with the relations between governmental divisions, the organisations of government, and the relations between the individual and the state

PER ENFORCEMENT: Public Law

PUBLIC LAW

-

CONSTITUTION
-

CRIMINAL

Describes the rights of individuals in the state Deals with matters such as the supremacy of parliament and the rights of citizens Includes the areas dealing with state and federal powers

Systemises the law against criminal Such as: criminal breach of trust, murder, cheating, theft, robbery, counterfeiting and serious hurts to other individuals. Public prosecutors will give punishment for inflicted crimes in state level There must be a wrongful act and a guilty mind in order to test the crime offences

PER ENFORCEMENT: Private Law

Sinha & Dheeraj, Legal Dictionary, ILBS, Petaling Jaya, p. 163  Private law is that the branch of the law which is concerned with the legal relations between private individuals, as distinct from public law

PER ENFORCEMENT: Private Law

PRIVATE LAW

-

CONTRACTS
-

TORTS

Based on the agreement between two parties (offer and acceptance) Must meet all essential elements to form a contract

Are based on the agreement between two parties For claims against the civil wrong or breach of general duty The act or omission must be wronged and must prove three elements (duty of care, breached to the duty and the damages must not too remote

PER ENFORCEMENT: International Law

PUBLIC LAW

INTERNATIONAL LAW
PRIVATE LAW

Sinha & Dheeraj, Legal Dictionary, ILBS, Petaling Jaya, p. 105

International law is a body of rules and principles governing the relations of nations between each other. Since these rules could not be enforced by any definite supranational agency, their validity has long depended on the extent to which any particular nation chose to recognise them.

PER ENFORCEMENT: International Law

Topics covered in an international law: Treaties : Agreement between states dealing with any matter of international concern  Jurisdiction : Power of a state to make and enforce its laws at the international level  State responsibility for wrongful acts  Human rights  War and peace

PER ENFORCEMENT: International Law

INTERNATIONAL LAW: Public Law Ir Harbans Singh KS (2002), Engineering and Construction Contract Management Law and Principles, LexisNexis, Singapore, p. 28  Public International Law is the corpus of legal rules applying between sovereign states. It deals with relationship between states

PER ENFORCEMENT: International Law

INTERNATIONAL LAW: Private Law Ir Harbans Singh KS (2002), Engineering and Construction Contract Management Law and Principles, LexisNexis, Singapore, p. 28  Private International Law is the body of rights and duties of citizens of different sovereign states towards one another. It deals with that branch of the law that applies to individuals or legal entities involved in legal disputes of an international nature.

PER ENFORCEMENT: International Law

INTERNATIONAL LAW: Private Law  Also known as a municipal law - every country may have its own version of law  The rules will guide the judge when the law in more than one country affects a case (conflicts of law)  Any legal dispute between two parties must be heard in the seat where the jurisdictions law should be applied  Deal with issues such as civil or human rights issues, not only between a government and its own citizens but also in how its citizens are treated by other nations.

PER SOURCES
Wu Min Aun (2005), The Malaysian Legal System (3rd ed.), Longman -Pearson Malaysia Sdn. Bhd., Petaling Jaya, p. 109  The term sources of law has several meanings:  Historical sources indicating the factors that have been influential in the development of the law but by themselves not recognised as law. Examples of these factors that influence the development of the law are religious practices and beliefs, local customs and opinions of jurists.  It may also refer to places where the law can be found as for example, in statutes, law reports, textbooks and decisions of courts.  In most cases, however, it refers to legal sources, that is, the legal rules that make up the law.

LEGAL SOURCES

SYARIAH LAW UNWRITTEN LAW

a. English Law b. Judicial Decisions c. Customary Law

WRITTEN LAW
a. The Federal Constitution b. The Constitutions of the States c. Legislation d. Subsidiary legislation

PER SOURCES: Syariah Law

   

The Syariah law only applies to the Muslims It is a sacred law of islam as revealed by Prophet Muhammad s.w.t. It is totally based on Gods commands on duties towards Allah and relationship of one Muslim with another. The main sources: Al-Quran: the words of Allah  Sunnah: rules deduced from the traditions (such as sayings or conduct of Prophet Muhammad s.w.t The secondary sources: Ijma: consensus of jurists of any particular era on a judicial rule  Qiyas: deductions from reasoning by ijtihad or anology

PER SOURCES: Syariah Law

Article 3 of the Federal Constitution  Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation.  In every state other than States not having a Ruler the position of the Ruler as the Head of the religion of Islam in his State in the manner and to the extent acknowledged and declared by the Constitution of that State, and subject to that Constitution, all rights, privileges, prerogatives and powers enjoyed by him as Head of that religion, are unaffected and unimpaired; but in any acts, observances or ceremonies with respect to which the Conference of Rulers has agreed that they should extend to the Federation as a whole each of the other ruler shall in his capacity of Head of the religion of Islam authorise the Yang diPertuan Agong to represent him

PER SOURCES: Written Law

Article 160(2) of the Federal Constitution:  Written law includes this constitution and the constitution of any state.  Section 3 of the Interpretation Acts 1948 and 1967 (Act 388) defines written law to mean:  The Federal Constitution and the Constitutions of the states and subsidiary legislation made thereunder;  Acts of Parliament and subsidiary legislation made thereunder;  Ordinance and Enactments (including any federal or state law styling itself an Ordinance or Enactment) and subsidiary legislation made thereunder; and;  Any other legislative enactments or legislative instruments (including Acts of Parliament of the United Kingdom of Great Britain and Northern Ireland and Orders in Council and other subsidiary legislation made thereunder) which are in force in Malaysia or any part thereof.

PER SOURCES: Written Law

1. THE FEDERAL CONSTITUTION  Is a supreme law of Malaysia  Article 4(1) of the Federal Constitution:


This constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void

PER SOURCES: Written Law

  

The constitutions supremacy is preserved by allowing the courts to review legislative or executive acts. When the legislative or executive acts violate the constitution, the court may declare ultra vires (beyond the legal power) and void. Matters that can cause this violation are such as:a) Matters where the relevant legislature has no power to make law (Mamat b Daud v Government of Malaysia [1988] 1 MLJ 119) - only the Federal Court can review this ground b) The law has not been enacted in conjunction with the procedure as sets in the constitution (Public Prosecutor v Dato Yap Peng [1987] 2 MLJ 311) c) Any case of state law that the rules are inconsistent with the federal law (City Council of Georgetown v Government of the State of Penang [1967] 1 MLJ 169)

PER SOURCES: Written Law

2. CONSTITUTION OF THE STATE  It prescribes matters related to the Ruler (i.e; to act on advice), the Executive Council, the Legislature, the Legislature Assembly, State employees and amendment of the constitution and financial provisions  Article 71(1) of the Federal Constitution: The Federation shall guarantee the right of a Ruler of a State to succeed and to hold, enjoy and exercise the constitutional rights and privileges of Ruler of that State in accordance with the Constitution of that State; but any dispute as to the title to the succession as Ruler of any State shall be determined solely by such authorities and in such manner as may be provided by the Constitution of that State.

PER SOURCES: Written Law

3. LEGISLATION Act of Parliament: Article 73 of the Federal Constitution;  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.  Article 160(2) of the Federal Constitution, Act of Parliament means a law made by Parliament.

PER SOURCES: Written Law

Ordinance and Enactment
Section 3 of the Interpretation Acts 1948 and 1967 (Act 388): It is pertinent to note that State laws are called Enactments, including those made by the former Malay States before Merdeka Day. The only exception to this is the State of Sarawak whose laws are still termed Ordinance. Article 160(2) of the Federation Constitution Enactment , where the expression occurs in the Eight Schedule, means a law made by the Legislature of a State.

PER SOURCES: Written Law

Ordinance and Enactment - The laws made by the Parliament and State Legislatures must comply with the manners and provisions laid out in the Federal constitution. - The divisions of legislation:a. List I of the Ninth Schedule are legislated by the Parliament b. List II of the Ninth Schedule are legislated by the State Legislatures c. List III of the Ninth Schedule are concurrent matters shared by the Parliament and State Legislatures

PER SOURCES: Written Law

SUBSIDIARY LEGISLATION Section 3 of the Interpretation Acts 1948 and 1967 (Act 388) Subsidiary legislation to mean any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Act, Enactment, Ordinance or other lawful authority and having legislative effect.

PER SOURCES: Written Law

Reasons to have this delegation (Wan Arfah, 2006, p. 49):a. The legislature has insufficient time to enact the legislation b. Many modern legislations involve technical matters, therefore experts must be referred to. c. When the laws need to be made or amended quickly, persons or bodies where powers have been delegated to them will have the authority to make the changes.

PER SOURCES: Unwritten Law

Ir Harbans Singh KS (2002), Engineering and Construction Contract Management Law and Principles, LexisNexis, Singapore, p. 36: Unwritten law constitutes that part of the local law that is not recognised as written law in the Malaysian context, i.e. it falls outside the classification afforded under section 3 of the Interpretation Acts 1948 and 1967 (Act 388). Unwritten law comprises the followig: (a) Case law or judicial decisions of the superior courts; (b) English common law and equitable principles as applicable in the local context; and (c) Customs and usages that have been recognised as applicable by the Malaysian courts.

PER SOURCES: Unwritten Law

1. JUDICIAL DECISION  Sinha & Dheeraj, Legal Dictionary, ILBS, Petaling Jaya, p. 32:


Case law The law which is created by and appears in the decisions of the courts. Distinguished from Statutory law. - The decision made by the judge from these courts is known as doctrine of binding judicial precedent. It is also known as doctrine of stare decisis - Precedents mean decision made by the judge previously

PER SOURCES: Unwritten Law

- A court must follow the prior decisions (ratio or principle) of a higher court for the same material facts. - For example: The Supreme Court has made decision in 1987 (Case A). In 1990, the same case facts and situations have been brought to the High Court (Case B). The High Court must therefore decide the case based on the principles governed by the Supreme Court in 1987 - Under this doctrine, decision made by higher courts will bind lower courts (Wan Arfah, 2006, pp.31-32)

PER SOURCES: Unwritten Law

A few situations where the court may not apply the earlier precedent can be due to:a. The judge in Superior Court overruled the precedence decided by the lower courts b. The earlier precedent was arrived at per incuriam (made in ignorance of a statute or a binding precedent) c. There are difference material facts between the case established the precedent with the new one.

PER SOURCES: Unwritten Law

APPLICABLE ENGLISH LAW
- The application of law of England can only be subjected to two limitations:a) b) With the absence of local statutes on the particular subjects, English law is applied only to fill the missing part in the Malaysian legal system Only English Law that suited to local circumstances could be applied.

- Section 3(1), Civil Law Act states: The said common law, rules and equity and statutes of general application shall be applied so far only as the circumstances of the States of Malaysia and their respectives inhabitants permit and subject to such qualifications as local circumstances...

PER SOURCES: Unwritten Law

COMMON LAW  Section 3 of the Interpretation Acts 1948 and 1967 (Act 388) defines common law to mean the common law of England.

PER SOURCES: Unwritten Law



It is mainly made up of nonstatutory (non written) laws, which are the precedents derived from judgments given on real cases by judges (it is purely from decisions of the courts). The British introduced this set of laws to Malaysia through various treaties with local rulers followed by legislation and decisions by English judges or judges trained in the English legal system. - In the earlier time of its implementation, courts were tasked with the responsibility of interpreting the Federal Constitution. In undertaking that duty, common law principles were applied. The words used in the Constitution and its spirit were developed by judges deciding cases within the structure of the common law system.

PER SOURCES: Unwritten Law

- As the law was stood up prior to Merdeka, this English common law was only applicable as the circumstances of the States of Malaysia and their respective inhabitants permit and subjected to such qualifications as local circumstances render necessary. - Malaysian Courts have a wide discretion whether to accept the common law principle or not. - When Malaysian judges accept such principles, they become part of Malaysian common law and Malaysian law has developed in that manner. - Almost all ex- British colonies have adopted the common law system inherited from the British. But in each country, the Courts develop their own common law which may not be identical or similar to the English common law.

PER SOURCES: Unwritten Law

ii. Equity
1.

(Sinha & Dheeraj, Legal Dictionary, ILBS, Petaling Jaya, p. 70)

Equity The body of law, formerly enforced in the Court of the Chancellor of England, aiding, supplementing and correcting the common law. Equity is still to a large extent a separate body of law from the common law, even though in England the attempt was made to fuse the two into a common system. Equity is also used in the law, in the sense it has in common speech, as a synonym of justice or fairness. It here retains the precise meaning of the Latin aequitas, which again is a synonym of the older phrase aequumet bonum. In this sense, it is used in common law decisions as well as in those of equity proper, as a gauge of moral rightness in the interpretation of statutes, and in the application of legal rules. Equity is also used as equivalent to the equity of redemption in the case of mortgagor. It has come in ordinary speech to mean the mortgagors interest. A right of any sort, enforceable only in equity.

2.

3. 4.

PER SOURCES: Unwritten Law

iii. Customary Law
Sinha & Dheeraj, Legal Dictionary, ILBS, Petaling Jaya, p. 51 Custom A rule of conduct which in a given place and among given groups of persons has been followed for an appreciable time. - Customs from the local inhabitants such as:-

a. Family law (marriage, divorce and inheritance) b. Adat in the Malay community c. Hindu and Chinese customs. d. Native customary law (in Sabah and Sarawak)

REFERENCES
1. Lee Mei Pheng (2005). General Principles of Malaysian Law (5th Ed.), Penerbit Fajar Bakti Sdn Bhd., Shah Alam, pp. 1-2 2. Rau & Kumar (2005). General Principles of the Malaysia Legal System, International Law Book Services., Petaling Jaya, pp.58-61. 2. Vijayalakshmi Venugopal (2001). Introduction to Law in Malaysia, Sweet & Maxwell., Petaling Jaya, pp. 2-4 3. http://www.wisegeek.com/what-is-law.htm, search via: google.com 4. http://en.wikipedia.org/wiki/Law_of_Malaysia, search via: google.com 5. http://www1.mmu.edu.my/~husni/government_struc.ppt, search via: google.com 6. http://en.wikipedia.org/wiki/Procedural_law, search via: google.com 7. http://en.wikipedia.org/wiki/Substantive_law, search via: google.com 8. http://legal-dictionary.thefreedictionary.com/Substantive+Law, search via: google.com 9. http://www.worldlawdirect.com/article/839/What_is_international_law.html 10. http://topics.law.cornell.edu/wex/International_law 11. http://www.businessdictionary.com/definition/private-international-law.html 12.http://www.malaysianbar.org.my/press_statements/press_release_common_law.html

END OF LECTURE