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Definition of Law
3. Enforced by
State/Person
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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.
1) Domestic Law
2) International Law
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LAW
Public IL Private IL
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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.
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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.
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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
Judicial Decisions
Legislation
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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)
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2) The State Constitutions
There are 13 States in Malaysia. Each state has its own Constitution.
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3) Legislation
Legislation is the law which is enacted by:-
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Terminology
LAWS ENACTED BY:-
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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.
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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:
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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
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III. Customs
It is the customs of the local inhabitants of Malaysia.
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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
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.
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
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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
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7) Juvenile Court
Court for young offenders of >10 and <18 years old.
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
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
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Thank You
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