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LAW 243 COMMERCIAL LAW
COURSE OUTCOME
CO1. Students should be able to know and understand the communication process. (PO5, PO8) CO2. Students should be able to know about communication challenges in todays world. (PO5, PO8) C03. Students should be able to understand the step-by step process in organizing and composing messages. (PO3, PO4)
LAW 243 COMMERCIAL LAW
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CHAPTER 1 MALAYSIAN LEGAL SYSTEM
1.1 Definition of law 1.2 Classification of law 1.3 Sources of Malaysian law 1.4 Judicial system in Malaysia
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LESSON OUTCOME
By the end of this chapter, students should be able to: 1. Define the word law 2. Know the classification of law and its components in brief 3. Identify the sources of Malaysian law 4. Understand the judicial system in Malaysia
LAW 243 COMMERCIAL LAW
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1.1
Definition of law
Activity: Brainstorm
What comes to your mind when you heard the word Law?
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> Oxford Dictionary: The system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition penalties.
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Source: Oxford dictionary
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> Sir John Salmond
(1862-1924): The body of principles recognized and applied by the state in the administration of justice.
LAW 243 COMMERCIAL LAW
Source: Lee Mei Pheng & Ivan Jeron Detta, Commercial law, Oxford Fajar, 2011.
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1.2
Classification of law
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Public law (individual+state)
International law (state+state)
Private law (individual+individual)
Constitutional law
Criminal law
Public international law
Private International law
e.g. Law of contract
e.g. Law Of trust
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Public law : The law which governs the relationship between individuals and the state. Public law may be further subdivided into two categories i.e. constitutional law and criminal law. Constitutional law lays down the rights of individuals in the state. It deals with questions such as supremacy of Parliament and rights of citizens. It also covers areas dealing with state and federal powers. Criminal law codifies the various offences committed by individuals against the state. A crime is a wrong against the state for which punishment is inflicted by the state.
LAW 243 COMMERCIAL LAW
Source: Lee Mei Pheng & Ivan Jeron Detta, Commercial law, Oxford Fajar, 2011.
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International law: The law which governs the relationship between state and state. It may be subdivided into two categories: 1. Public international law 2. Private international law.
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Source: Lee Mei Pheng & Ivan Jeron Detta, Commercial law, Oxford Fajar, 2011.
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Private law: Private law concerned with matters that affect the rights and duties of individuals amongst themselves.
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Source: Lee Mei Pheng & Ivan Jeron Detta, Commercial law, Oxford Fajar, 2011.
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1.3
Sources of Malaysian law
The main sources of Malaysian law are:
A.
B.
C.
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Written law (also referred to as statute law): 1. Federal Constitution 2. State Constitution 3. Legislation 4. Subsidiary legislation Unwritten law: 1. English law 2. Judicial decision 3. Customary law Islamic law
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A.
1.
WRITTEN LAW
Federal Constitution: - Supreme law of Malaysia - Provides the powers of the Federal & State Governments - Provides fundamental rights of individual
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Source: Lee Mei Pheng & Ivan Jeron Detta, Commercial law, Oxford Fajar, 2011.
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2. State Constitution: - Regulates State Governments - Contains provisions derived from 8th schedule of the Federal Constitution Legislation: - enacted by Parliament and the state assemblies Act: laws made after 1957 Ordinances: - laws made 1946-1957 - laws in Sarawak
3.
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Source: Lee Mei Pheng & Ivan Jeron Detta, Commercial law, Oxford Fajar, 2011.
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4. Subsidiary legislation: - Laws made under any Acts, Enactments or Ordinances - Very important because specify the laws in more detail and for everyday matters - Example: Parent Act (main law) : Hire-Purchase Act 1957 Subsidiary Legislation : Hire-Purchase (Repossession) Regulation - Subsidiary legislation made in contravention of either a parent Act or the Constitution is void.
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Source: Lee Mei Pheng & Ivan Jeron Detta, Commercial law, Oxford Fajar, 2011.
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B.
1.
UNWRITTEN LAW
English law: - Applicable in the absence of local laws - Suitable to local circumstances English Commercial Law?
Section 5(2) of the Civil Law Act 1956, English commercial law applies to Penang, Malacca, Sabah & Sarawak If no local laws applicable Today, many local laws dealing with commercial matters e.g. Contracts Act 1950, Partnership Act 1961, Companies Act 1965
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Source: Lee Mei Pheng & Ivan Jeron Detta, Commercial law, Oxford Fajar, 2011.
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CONTINUE
2. Judicial decisions: - Judges decision - Doctrine of binding precedent : Not decide cases arbitrarily- must follow precedents (previous decisions of similar situations). Each court is bound by the decisions of courts of the same level or higher than it in the same hierarchy of courts, whether or not it believes a decision is correct.
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Source: Lee Mei Pheng & Ivan Jeron Detta, Commercial law, Oxford Fajar, 2011.
RANACO EDUCATION & TRAINING INSTITUTE
CONTINUE
3. Customary law: - Customs practiced by local people - Generally, customs relating to family law are given legal force by courts in Malaysia-marriage, divorce, inheritance - Sabah and Sarawak: native customary laws apply - Peninsular Malaysia: Adat Perpatih - Malays in Negeri Sembilan & Naning in Melaka - land, lineage, election of rulers Adat Temenggung - many states - from Palembang, Sumatra
Source: Lee Mei Pheng & Ivan Jeron Detta, Commercial law, Oxford Fajar, 2011. 17
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C.
ISLAMIC LAW
applicable to Muslims only, does not apply to non Muslims family matters (marriage and divorce) estate matters (inheritance, wasiat)
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Source: Lee Mei Pheng & Ivan Jeron Detta, Commercial law, Oxford Fajar, 2011.
RANACO EDUCATION & TRAINING INSTITUTE
1.4
Judicial system in Malaysia
FEDERAL COURT COURT OF APPEAL
High Court in Malaya Syariah Court Native Court Sessions Court Juvenile Court Magistrates Court Penghulus Court
High Court in Sabah & Swak
Syariah Court Session Court Juvenile Court Magistrates Court
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Source: Lee Mei Pheng & Ivan Jeron Detta, Commercial law, Oxford Fajar, 2011.
RANACO EDUCATION & TRAINING INSTITUTE
QUESTIONS
1. The main sources of Malaysian law comprise: statute law, unwritten law and Islamic law (True / False) The following are written law except: a. Legislation enacted by Parliament and State Assemblies/ perundangan b. Judicial decisions of the superior courts c. Subsidiary legislation d. State Constitutions
2.
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3. 4. Unwritten law also referred to as statute law (True / False) In Perak, Malacca, Sabah and Sarawak, English commercial law at the date on which the matter has to be decided is applicable in the absence of local legislation (True / False)
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5. 6. Judge decides cases arbitrarily without refer to decided cases (True / False) The following statements are true except: a. Federal Constitution provides fundamental rights of individual b. Judge must follow precedents (previous decisions of similar situations) c. English law applicable in the absence of local laws eventhough not suitable with local circumstances d. State Constitutions contains provisions derived from 8th schedule of the Federal Constitution
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CONT.
7. 8. Subsidiary legislation made in contravention of either a parent Act or the Constitution is voidable (True / False) Private law is the law which governs the relationship between individuals and the state (True / False)
9.
Public law is the law which governs the relationship between state and state (True / False)
10. Public law may be further subdivided into 2 categories: constitutional law and criminal law (True / False)
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