WEEK 2 Introduction to Malaysian Legal System

Page 1

Introduction to Malaysian Business Law

  • Overview of the legal system governing business operations in Malaysia.

Page 3

Learning Outcomes

  • Students will be able to:

    • Define the term 'law'.

    • Elaborate on the classification of law.

    • Explain the law-making process.

Page 4

What is Law?

  • Sir John Salmond: "The body of principles recognized and applied by the State in the administration of justice."

  • John Austin: "A command issued by a sovereign power to an inferior and enforced by coercion."

Page 5

Definitions of Law

  • Oxford English Dictionary: "A body of enacted law or customary rules recognized by the community as binding."

Page 6

Malaysian Law

  • Definition: "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 of law in the Federation or any part thereof." (Article 160(2))

Page 9

Why Do We Need Law in Our Country?

  1. To provide a government structure and legislative procedure.

  2. To provide public service and raise taxes to support them.

  3. To regulate and promote the economy.

  4. To preserve national security and promote public order.

  5. To grant individual members personal rights and duties.

  6. To give legal validity to transactions between members of society.

Page 11

Classification of Law

  1. Public and Private Law.

  2. Common Law and Equity.

  3. Criminal and Civil Law.

Page 12

Public Law vs Private Law

Public Law

  1. Constitutional Law.

  2. Administrative Law.

  3. Criminal Law.

Private Law

  1. Law of Contract.

  2. Law of Tort.

  3. Company Law.

  4. Family Law.

Page 14

Distinction: Criminal and Civil Law

  • Criminal Law: Offense against the State; involves punishment.

  • Civil Law: Wrong against the Person; involves compensation.

  • Prosecution vs Accused (Criminal), Claimant (Plaintiff) vs Defendant (Civil).

  • Burden of Proof:

    • Criminal: Prosecution must prove beyond reasonable doubt.

    • Civil: Claimant must prove on the balance of probabilities.

Page 17

Legal Sources of Malaysian Law

  • According to Sharifah Suhana (2007), sources of law may refer to:

    1. Historical background.

    2. Locations of laws (e.g., Statutes, law reports, textbooks).

    3. Legal rules forming laws.

  • Learning Outcome: Identify the sources of Malaysian Law and elaborate on each.

Page 18

Written Law

  • Components:

    • Federal Constitution.

    • State Constitution.

    • Legislation (subsidiary legislation).

  • Syariah Law: Based on Al-Quran, As Sunnah, Ijma’, Qiyas.

Page 20

Federal Constitution

  • Significance:

    • Establishes the legitimacy of the country.

    • Supreme law of the country.

    • Sets the structure of government (legislature, executive, judiciary).

    • Grants rights to citizens.

Page 21

Content of the Federal Constitution

  • Article 4: Supreme law of the land.

  • Article 75: Federal law prevails over State laws.

  • Fundamental liberties and election processes governed.

Page 23

State Constitution

  • Article 71(4): Mandatory provisions for each State Constitution.

  • Each state has unique constitutions.

Page 24

Legislation

  • Refers to laws enacted by Parliament and State Legislative Assemblies.

  • Acts: Laws made by Parliament.

  • Enactments: Laws made by State Assemblies.

Page 25

Legislative Process Overview

  1. Pre-parliamentary stage.

  2. Parliamentary stage (Refer to Article 66).

Page 26

Pre-Parliamentary Stage

  • Proposal via political party manifestos, ministry policy decisions.

  • Referred to Cabinet for decisions.

Page 27

Parliamentary Stage (Article 44)

  • Parliament consists of Yang di-Pertuan Agong and two houses.

  • Steps:

    1. First reading.

    2. Second reading.

    3. Committee stage.

    4. Royal assent.

    5. Third reading.

    6. Publication.

Page 32

After Parliamentary Stage

  • The Bill must be presented to the King for assent (Article 66(3)).

  • If not assented within 30 days, it becomes law (Article 66(4A)).

Page 35

Subsidiary Legislation

  • Defined in Section 3 of the Interpretation Act 1948 and 1969.

  • Importance: Provides legislative effect through delegated powers.

Page 36

Unwritten Law

  1. Customary law (Chinese, Indian, Adat laws).

  2. Judicial precedent (case law).

  3. English law (common law and equity).

Page 37

Common Law

  • Based on decisions from English Common Law courts.

  • Decisions made by judges often fill gaps in legislation.

Page 38

Equity

  • Emerged in the 13th century to address unfairness in the common law system.

  • Offers legal principles that supplement strict laws.

Page 39

Example Remedies Available

Common Law

  • Compensation/Damages.

Equity

  1. Specific Performance.

  2. Injunction.

  3. Restitution.