1. Chap 1. Intro to msian legal principles (1) (1).pptx

Chap 1. Intro to msian legal principles

1. DPB30073 BUSINESS LAW Chapter 1: Intro to Malaysian legal principles

2. Course Syllabus 1.1 Explain the nature of Malaysian legal principles Define law Recognize functions of law Interpret classification of law a. public law b. private law c. international law Categorize sources of law in Malaysia a. written law b. unwritten law c. Islamic law 1.2 Outline Malaysian judicial system Identify doctrine of separation of powers Compare the hierarchy of courts a. the superior courts b. the subordinate courts Explain the jurisdiction of each court Identify the role of judges in interpretation of statutes 2

3. Assalamualaikum & Hello! I am Mdm Azilah bt Ismail I am here because I love to give presentations. a [email protected] 3

4. What is law? Let’s start with the first set of slides

5. “ Body of enacted or customary rules recognized by the community as binding ” 5 “ Rule of human conduct , imposed upon and enforced among the members of a State . ” “ Law includes any ordinance, Order, by-law, rule, regulation, notification, custom or usage having the force of law . ”

6. “ Sir John Salmond - body of principles recognized and applied by the State in the administration of justice . ” 6 “ John Austin - law is a command by a superior being to an inferior being and it is followed by a legal sanction if the law is not obeyed . It has a coercive (fear) effect, It threatens you to obey it. ”

7. Classification law?

8. Law may be divided into : 8

9. Public law regulates the relationship between the citizen (an individual or group of people) and the State 9

10. Example: In a murder case where Daniel murdered Budin . Therefore, here Daniel has committed a crime which is against the State (King’s law) – R v Daniel. (R= REX). In Malaysia: PP v Daniel Public law Public law is divided into : - Constitutional law - Administrative law - Criminal law 10

11. Constitutional law defines the structure of the principal organs of government and their relationship to each other, and determine their principal functions and the rights of individual under that government. 11

12. Article 6(1) of the Federal Constitution:- says no person shall be held for slavery. Article 8(1) of the Federal Constitution: - says all person are equal before the law and entitled equal protection of the law. 12 Constitutional law Example in Malaysia

13. Administrative law defined as that body of legal principle which concerns the rights and duties arising from the impact upon the functioning individual of the executive instrument of the government . 13

14. In synopsis we can terms it as the law that regulates the duties and exercise of powers by administrative authorities. 14 Administrative law

15. Criminal law deals with acts or omissions which are offences against the State and for which the offender is liable to be tried and if found guilty, will be punished according to the law . 15

16. Crime is defined as disobedience of the law forbidden under pain of punishment. The punishment for crime ranges from death or imprisonment to a money pe nalty or absolute discharge . 16 Criminal law Definition

17. Private law Private law deals with the relation between one citizen and another citize n. It is also known as Civil law . It includes Contract, Family Law, Tort, Land Law and Commercial law in general. 17

18. Example: Where Intan and Linda entered an agreement and Linda breached the contract. Here Intan has a cause of action against Linda. In this situation Intan will be the Plaintiff because she is the one who is initiating the action and Linda will be the Defendant . Intan v Linda Private law Legal action may be commenced or initiated by individuals seeking for damages or compensation 18

19. Exercise Define law. Differentiate between Public and Private law with appropriate examples. 19

20. S ources of Malaysian law?

21. Source of law: 21

22. Source of law: 22

23. Source of law The main sources of law in Malaysia can be categorised as: Written Law Unwritten Law Islamic/ Sharia’h Law 23

24. 1. Written Law a. the Federal Constitution b. States Constitution of the 13 states comprising the Federation c. Federal law made by Parliament d. State laws made by State Assemblies e. Federal and State Subsidiary Legislation Source of law 2. Unwritten Law f. Principles of English Law (Common Law and Equity) g. Judicial Precedent h. Customs 24 3. Syariah Law

25. WRITTEN LAW The Federal Constitution is the supreme law of the land . 25 Any law which is inconsistent with the Federal Constitution is invalid . The Malaysian Parliament functions under a written constitution and is governed by it. Its law making power is limited by the provisions in the constitution. Parliament as a legislative body has the capacity to amend , repeal and make new constitution by way of two third (2/3) majority vote of the both houses of Parliament - Dewan Rakyat (House of Representative) & Dewan Negara(Senate) . The Federal Constitution also establishes a constitutional Monarchy and a Federal System of Government . Federal Constitution

26. WRITTEN LAW The 13 States of Malaysia have individual constitutions, which provide for a single chamber Legislative Assembly in each state. 26 In Sabah & Sarawak, members of the Executive Council are known as State Ministers . State Constitution A Menteri Besar or a Chief Minister heads the government. (In the Malay States a cabinet known as the Executive Council assists the Menteri Besar )

27. WRITTEN LAW It refers to laws made by a person or body , which has power to make law. 27 In Malaysia, Parliament and Legislative Assemblies have powers to enact laws in their respective areas. Laws made by Parliament may extend to the whole country . However, laws enacted by a State Assembly only apply to that particular state only. Legislation Consists of Federal Laws and State Laws.

28. WRITTEN LAW Act - Federal Laws made by Parliament 28 Ordinance - Law made by YDPA during Proclamation of an emergency when Parliament is not sitting concurrently. Legislation Enactment - State Laws made by Legislative Assemblies

29. WRITTEN LAW Also known as delegated legislation . 29 An example of delegated legislation is the parking by laws enacted by various councils under powers conferred on them by the State Local Government Enactments. Subsidiary Legislation/ Delegated Legislation A statute will confer power on an authority for it to enact rules and regulation. e.g by-laws,

30. WRITTEN LAW 30

31. WRITTEN LAW 31

32. UNWRITTEN LAW The supremacy of English Law remains in Malaysia even after independence. 32 Our courts have also tended to look towards the English Law to aid them in the interpretation of the Contracts Act. English Law The English Law is adopted so far as they were suitable to local conditions . Many of the local laws especially those affecting trade, commerce and banking were patterned on English Models (or in some instance other colonial laws) e.g. Section 3 and 5 of the Civil Law Act 1956 provide that English law relating to contract is applicable in Malaysia in relation to areas not covered by our legislation or our case law.

33. UNWRITTEN LAW Refers to law laid down by judges sitting in the Superior Courts as distinct from statute law enacted by the legislative- Judge made law . 33 The Common Law This system was inherited from England

34. UNWRITTEN LAW Refers to customs and adat of local inhabitants in Malaysia. 34 In Sabah and Sarawak, native customary laws apply in land dealings, and family matters. Customs Adat applies to Malays; In Peninsular Malaysia, there are 2 varieties: adat perpatih ( Negeri Sembilan) and adat temenggung ( Naning Melaka). Customs relating to family law – e.g marriage, divorce, inheritance.

35. Body of Islamic law . 35 Islamic Law Applicable to Muslims only and administered in the Syariah Courts . The courts possess civil jurisdiction over offences by Muslim against the religion. The term means way or path ; it is the legal framework within which the public and some private aspects of life are regulated for those living in a legal system based on Muslim principles of jurisprudence

36. 36

37. Exercise 1. Describe the various sources of Malaysian Law. 2. State the differences between legislation and subsidiary legislation ? 3. Explain three (3) differences between the jurisdiction of a sessions court and magistrates court ? 37

38. Doctrine of separation of power ?

39. What is the Separation of Powers? : 39 to contain or prevent the abuse of the powers that governing bodies must have in order to run a nation.  The mechanism works by balancing the powers that are distributed amongst the organs of government and by giving one organ the ability to check the use of power by another.

40. In Malaysia: 40 Prime Minister must come from the Dewan Rakyat YDPA who is the ceremonial executive is an integral part of the Parliament The cabinet is appointed by the YDPA in the advice of the Prime Minister Doctrine of Separation of powers in Malaysia is stipulated clearly in the article 121, 44, and 39 , of Federal constitution .

41. In Malaysia: 41   principle of  separation of powers  under Article 127 of the Federal Constitution , LEGISLATIVE

42. Hierarchy Of Courts ?

43. Hierarchy of court 43

44. Hierarchy of court 44

45. Hierarchy of court 45 Article 121 (1A) Federal Constitution provides for dual justice system: Secular laws (Public and Private) Islamic laws applicable only in Shariah court In Malaysia there are 2 types of trials ie criminal and civil (secular laws). In Malaysia there are 2 types of trials ie criminal and civil (secular laws).

46. Superior Courts 46

47. Federal Court 47 Presided by Chief Justice . Article 121 (1) of the Federal Constitution (FC) The Federal Court has authority over appeals and can be referred to on various matters except those which come under the jurisdiction of the Sharia’h Court . Among its functions include: Hearing appeals on decisions meted out by the High Court in both civil and criminal cases; To hear exclusively matters: Between any state and the Federal Government and Issues pertaining to the Federal and State legislation ; Matters arising from the High Court ; and Issues pertaining to the Federal Constitution .

48. The Court of Appeal 48 Came into effect on 24th June 1994. The Court of Appeal is presided over by: The President of the Court of Appeal and 8 judges. Article 121 (1B) of the Federal Constitution: The Court of Appeal is authorized: To hear any appeal and Decide on the outcome of any decision made by the High Court or criminal matter decided by the Sessions Court.

49. High Court of Malaya and High Court of Borneo (Sabah and Sarawak) 49 Has unlimited power in the exercise of its jurisdiction over criminal and civil cases. However, only cases that are beyond the jurisdiction of the subordinate courts are brought before the High Court. The High Court consists of: Two (2) Chief Judges of Malaya (Peninsular Malaysia) and Chief Judges of Sabah and Sarawak ; and more than 50 Judges and Judicial Commissioners.

50. Subordinate/Lower Courts 50 The Subordinate Courts in Peninsular Malaysia are divided into : the Sessions Court, The Magistrate’s Court and Penghulu’s Court. In East Malaysia, the Subordinate Courts comprise the Sessions Court, Magistrate’s Court and Native Court.

51. Subordinate/Lower Courts 51

52. Sessions Court 52 The highest of the subordinate courts and Criminal : has the authority to hear all matters criminal in nature, except those that carry the death sentence . Civil cases : Claims below RM1,000,000 in matters pertaining to tenancy agreements, distress, motor vehicles, accidents . specific performance or rescission of contracts or for cancellation or rectification of instruments

53. Magistrate’s Court 53 Consists of two: First Class Magistrate’s Court Second Class Magistrate’s Court. In either court, one magistrate presides.

54. Magistrate’s Court 54 1. The First Class magistrate has jurisdiction: Criminal : to hear offences which carry sentences not exceeding 10 years imprisonment , or offences punishable with a fine and Civil : cases involving claims below RM100,000 . The maximum sentence a magistrate can give out is: 5 years imprisonment , 12 strokes of the rotan , and a fine of RM10,000 or any combination of above.

55. Magistrate’s Court 55 2. The Second Class magistrate has the jurisdiction : Criminal : to hear offences of which the maximum term not exceeding 1 year imprisonment or punishable with a fine only. The magistrate may sentence an offender to a maximum of : 6 months’ imprisonment , a fine not exceeding RM1,000 or both. Civil : cases involving claims below RM10,000

56. Penghulu’s Court 56 the lowest of the Subordinate courts in Peninsular Malaysia. Only applicable in village/rural/remote are. Presided by Ketua Kampung ( malay head) Criminal matters: minor offences that carry a fine not exceeding RM25 . Civil matters: claims/disputes not exceeding RM50 . But since 1st March 2013, Penghulu’s Court is abolished.

57. Native Court 57 Have jurisdiction over matters pertaining to: native laws and customs in which both parties are native and involve religious, matrimonial or sexual issues . For civil cases, this particular court can hear cases that involve disputes not exceeding RM50 . It is under the scrutiny of the District Officer .

58. Other Court 58 The Juvenile Courts have similar jurisdiction with the Magistrate’s Court and hear cases involving offenders aged 18 and below (except death penalty cases) The Syariah Court deals with matters pertaining to the religious laws of the Muslims and its jurisdiction is solely over Muslims. The Court-Martial has jurisdiction over any member of the various military forces in the country. The Special Court has exclusive jurisdiction to hear all offences committed in the Federation by the Yang Di-Pertuan Agong or the Ruler of a State .

59. Other Court 59

60. 60 Identify the court of law for the following offences: Joe, robbed a jewellery store and got away with RM300,000 worth of jewelleries. He also shot dead one of the security guards.(high court) Mimi and Reza, muslim couple with 3 kids recently divorced. Mimi wanted to claim her rights for child custody and joint property.(Syariah court) While renovating his house, Ben’s contractor accidentally broke the neighbour’s wall and roof, causing a damage of RM23,000. (magistrate court 1 st class) Yaya, a popular local artiste, signed a contract to record 3 albums under Tune Music for 3 years. However, after 2 years she signed with another company. Tune Music sued her for RM300,000 for breach of contract.(session court) Bala kidnapped a 10 year old from his school. He was later arrested and charged for kidnapping. (session court) Aris, a drug dealer, smuggled 2 kg of cocaine from Thailand and was arrested in Penang.(high court) Lily ( muslim ) and Bob (non- muslim ), both unmarried were arrested for close proximity at a budget hotel by Perak Islamic Religious Council.(Syariah court) (magistrate court Zain, a 15 year old boy broke into his neighbour’s house and stole RM500 from his neighbour. (juvenile court)

61. Thanks! Any questions? 61