FACULTY OF ARCHITECTURE

,
PLANNING AND SURVEYING
BARCHELOR OF QUANTITY SURVEYING
(HONS) AP224
(ASSIGNMENT 1)

COURSE CONSTRUCTION LAW I (BQS 457)
GROUP AP224 (2C)
PREPARED FOR MADAM SHARIFAH NUR AINA BINTI SYED ALWEE
PREPARED BY 1. FATIN AZIERAH BINTI APANDI
(2017465098)
2. AININ HUSNINA BINTI MOHD RIDZUAN
(2017626714)

.......................................................................................................................................................................................... 13 REFERENCES .............................. 10 CHAPTER 4: THE DOCTRINE OF JUDICIAL PRECEDENT IN MALAYSIA COURTS ..............................................9 CHAPTER 3: THE ADVANTAGES OF DOCTRINE OF JUDICIAL PRECEDENT .................................................................................3 CHAPTER 1: THE SOURCES OF LAW ........................................................................................................................ 14 2 ..............................6 CHAPTER 2: THE DIFFERENCE BETWEEN CRIMINAL LAW AND CIVIL LAW ................................. INTRODUCTION ..................................... 11 CONCLUSION ....................................................................CONTENTS CONTENTS . Error! Bookmark not defined........................................................

It means that the law should include justice as an important element. INTRODUCTION It is important to be aware of the legal system in Malaysia. “Law” generally is the procedures and the rules of conduct or act which one uses one’s every senses in order to harmonise the convenient of oneself and or another. it is useful to be aware of the most obvious. There are two important links which are the Parliament and the Federal Court. powers of the government. Compare by law. which are… 3 . For people to respect law and obey it.equality. Supreme law that applies throughout the country is known as the Constitution of Malaysia. In the Federal Constitution of Malaysia. While it is impossible to be aware of every law. the government monarchy and rights of the citizens. There are also individual state laws. Sabah and Sarawak is one political unit but is not governed exactly the same set of laws. courts. statute law. Legal justice refers to the way in which the law is just and fair. it must contain concepts such as freedom . as by the people in its constitution. whether in the form of legislation or of custom and policies recognized and enforced by judicial decision. administrative aspects of law. laws may differ from those of a western country. The aims of law is to attain justice and to encourage the doing of what is right or just in a particular set of circumstances. The Malaysian Legal System is largely based on the British Common Law system as a result of the colonization of the country by the British in the 19th century to the 1960s. the common law in so far as it is in operation in the federation or any part thereof. Yang Di-Pertuan Agong act as the head of country and divided into three main authorities. It includes any written or positive rule or collection of rules prescribed under the authority of the state or nation. law must satisfy certain basic requirements. A good law is law that is just and fair. and as a Muslim country. Peninsular Malaysia. and any custom or usage having the force in the federation or any part thereof. Law includes written law. The law system is known as The Constitution of Malaysia which lays down the legal framework to protect the citizens of the country. This federal law constitutes legislation. justice and morality. It has been said that justice is the ultimate aim of the law. namely. Law also is the principles and regulations established in a community by some authority and applicable to its people.

The constitution is the supreme law of the federation and any law passed after Merdeka Day which is inconsistent with Constitution shall. They cannot interfere as to the administration carried out by the executive. then it might be challenge in court. Law will be enacted in accordance with the interest of the citizens. Constitution is the fundamental law of a state or nation. Judiciary is the law which was enacted by the legislative will not only govern the people but also the nation including the three government organ. The judiciary will interpret the law enacted by the legislative and at the same time applies the said law in arriving at their decision. The legislative will enact law so that administration could run smoothly. If dispute arise as to whether certain action contradict the law. fear or favour. Parliament will be the place where law will be enacted and the voice of the people was heard through their representative. The duties must be done according to the power granted by the law so that it will not be void and be held ultra vires or no effect. All parties will be treated equally and the judiciary is free to make judgements without coercion. The system of court is under this organ plays an important role in determining as to whether action done is legal or illegal. to the extent of the inconsistency be void. Other than that. Yang Di-Pertuan Agong Executive Authority Legislative Authority Judicial Authority Prime Minister Chief Parliament Minister Judge Senate Government House of Courts Ministries Representative Government Departments Citizen The executive involves in administering the nation and ensuring that government policy will be carried out according to the law. The government departments which assist in administering the nation are part of the executive. parliament may 4 .

law can be classified into public and private law. The legislature of a State may make laws for the whole or any part of that state. 5 . make laws for the whole or any part of the Federation and laws having effect outside a well as within the federation. such as the the Law of Contracts and the Law of Torts. Last but not least. While private law is relationships between individuals. Public law is the relationship between individuals and the state.

Lastly. third reading followed by Dewan Negara. Each states in Malaysia has its own individual constitution which provide for a single chamber Legislative Assembly in each state. Third. law reports. Fifth. The Federal Constitution is a supreme law of Malaysia. Federal Constitution lays down the power of federal and state governments. The first one is Written Law. It will proceed to committee stage. many modern legislations involve technical matters therefore experts must be referred to. It applies to all state in the federation. when the laws need to be made or emended quickly. Lastly. Legislation refers to laws enacted by a body constituted for this purpose. State employees and amendment of the constitution and financial provisions. in statues. the Constitution of the State. There are four reasons to have this delegation. After that. there are eight process of approving the bills.1. the Legislature. 6 . the legislature has insufficient time to enact the legislation. The last one in Written Law is Subsidiary Legislation. Sources of law can be found in historical sources and legal sources. Second. publication. Written Law includes the constitution and the constitution of any state. In Malaysia. First. laws are legislated by the Parliament and the Legislature of the State. Besides. First. first reading followed by second reading. the Legislature Assembly. textbooks and decisions of courts. Subsidiary Legislation made by person or bodies under powers conferred on them by Acts of Parliament or State Assemblies. The second sources of law is Unwritten Law. Unwritten Law constitutes that part of the local law that is not recognised as ‘written law’ in the Malaysian context. The first one in written law is the Federal Constitution. There are three sources of law which are Written Law.0 SOURCES OF LAW Sources of law means the origin from where the law or binding rules of human conduct come into existence. Yang Di-Pertuan Agong will give his royal assent. the Executive Council. persons or bodies where powers have been delegated to them will have the authority to make changes. drafting the bills. It provides the basic or fundamental rights of an individual. Moreover. Secondly. Unwritten Law and Syariah Law. Second. It prescribes matter related to the Ruler. For example. Constitution supremacy is maintained by giving to the superior courts the power and duty to invalidate any legislative or executive acts.

Judicial decision is law can be created through decisions made by judges of Superior Courts and Subordinate Courts. The last law in unwritten law is Customary Law. Custom from the local inhabitants such as family law and Adat in Malay community Syariah Law is the last sources of law. SUPERIOR COURT SUB- ORDINATE COURT There are a few situations where the court may not apply the earlier precedent can be due to the judge Superior Court overruled the precedence decided by the lower court. 7 . English Law also used in Malaysia. Custom is a rule of conduct which in a given place and among given groups of persons has been followed for an appreciable time. the earlier precedent was arrived at per incuriam and there are difference material facts between the case established the precedent with the new one. Other than that. The application of law of England can only be subjected to two limitations which are with the absence of local statues on the particular subjects. Syariah law only applied to the Muslims. Al-Quran is the words of Allah while Sunnah is rules deduced from the traditions such as saying or conduct of Prophet Muhammad SAW. English Law is applied only to fill the missing part in Malaysian Legal System and only English Law that suited local circumstances could be applied. The first one is Judicial Decision. It is totally based on God’s commands on duties towards Allah and relationship of one Muslim with another. It is sacred law of Islam as revealed by Prophet Muhammad SAW. The main sources of Syariah law is al-Quran and Sunnah.

8 . marriage and divorce.The court will enforce the Islamic law are the Syariah Court for matters such as family matters.

Based on jury opinion. defendant can be found liable or not liable.0 DIFFERENCES BETWEEN CRIMINAL LAW AND CIVIL LAW Civil law deals with the disputes between individuals. civil law is compensation. The prosecution is not allowed to appeal.2. Cases are almost always decided by a jury. in civil law. only the defendant may appeal a court's verdict. or between the two. Moreover. society. and defendants are not entitled to the same legal protections as are the criminally accused. such as a corporation. in cases of civil law. For the type of punishment. assault and theft. the death penalty. defendant is convicted if guilty and acquitted if not guilty. civil law’s case filed by private party while criminal law filed by government. the jury decide this. Civil law deals with behavior that constitutes an injury to an individual or other private party. While in criminal law. Juries are present almost exclusively in criminal cases. to prevail. the judge decides this. breach of contract and property damage. the plaintiff must establish the defendant's liability only according to the "preponderance of evidence". laws vary by state and country. either party (claimant or defendant) can appeal a court's decision while in criminal law. in which compensation is awarded to the victim. Cases are usually decided by a judge punishment almost always consists of a monetary award and never consists of imprisonment. organizations. for the decision in civil law. Examples are defamation includes libel and slander. a guilty defendant is subject to custodial (imprisonment) or non-custodial punishment (fines or community service). the jury must agree unanimously before a defendant is convicted. In exceptional cases. Examples are murder. 9 . punishment for serious (felony) charges often consists of imprisonment but may also include a fine paid to the government. For criminal law. Criminal law is the body of law that deals with crime and the legal punishment of criminal offenses. or an injunction in nuisance. Criminal law deals with behavior that can be construed as an offense against the public. Last but not least. Furthermore. or the state even if the immediate victim is an individual. Cases are initiated by a private party (the plaintiff). usually financial for injuries or damages. In the criminal justice system.

This is because the Court will not be required to analyse the case and make a decision as they will already have the answer before them. This is of course unless there is some further fact which is material to the decision as the Court will then be capable of reaching a different conclusion.3. Courts are able to lay down legal rules and principles a lot quicker than Parliament and because there are constant societal and technological advances. Last but not least. is the consistency between cases. another advantages is the ability to develop the law even further. the Court did not have to form an original precedent was could merely apply a previously established principle to the issue at hand. This would be unfair and society would most likely lose confidence in the justice system. Here. Another advantage. 10 . Greater fairness is also provided as cases with similar facts will be treated the same. it will not take as much time to reach a reasoned conclusion. Hence. Judicial precedent also prevents judges from producing prejudicial decisions since a judge will often be bound to follow a previous decision even if he disagrees with it. injustice will also be prevented as it would certainly be unjust for different outcomes to be reached in two cases with similar facts. Making law in decided case provides an opportunity for growth and legal development and ensures that the law is able to keep abreast with the continuous advances in society. which is a significant benefit within the judicial process. This is important in ensuring that the rulings of judges remain as consistent as is reasonably possible so as to prevent confusion and unfairness. If a Court is already provided with an answer to a problem in which they face. An example how effective judicial precedent can be is exemplified in the case of Hunter and Others v Canary Wharf Ltd and London Dockland Development Corporation. it is necessary that new legal rules and principles can be established more conveniently. which has already been mentioned.0 ADVANTAGES OF DOCTRINE OF JUDICIAL PRECEDENT There are many advantages to the doctrine of judicial precedent with one of the main advantages being the ability to save time when making a decision on a case. This strengthens the system and is also likely to reduce crime since those who are aware of the consequences will be less likely to commit a criminal offence.

This was the position in the case of Ng Hoi Cheu v Public prosecutor(1968) 1MLJ 53. the high court and other inferior courts in Malaysia to follow the doctrine of judicial precedents was reaffirmed. the Federal court judge. The above practice of High Court is observed to continue to exist unchanged under 11 . whether present or past. the Federal court. As far as the High Courts are concerned about the practice of horizontal judicial precedent. in Joginder Singh v Public prosecutor the High court while exercising appellate jurisdiction ruled that it would not follow the decision of High Court in an appeal presided over by three judges. the Court of Appeal in Malaysia was reminded of its obligation to accept loyally the decisions of the higher court (Federal Court) and the need not to allow itself to be reminded to follow and apply the principles of judicial precedent in future. The Supreme Court had earlier decided this case but the current issue was whether the Supreme Court’s decision should be reviewed or over ruled. 4. Delivering the judgment of the Federal Court on this case. the question arose as to whether it was permissible for an intermediate court like the Court of Appeal in Malaysia to disregard judgment of the Federal Court.0 DOCTRINE OF JUDICIAL PRECEDENTS IN MALAYSIA COURT The practice of judicial precedent is found applicable in Malaysian courts and this has been confirmed by Chang Min Tat F. where the need for Federal court.J in public prosecutor v Datuk Tan Chang Swee(1980)2 MLJ 276-277. 2MLJ 829. The attitude and assumption of Malaysian High Court Judges are that one High Court Judge is not bound by decision made by another High Court Judge either of original or appellate jurisdiction. 1054 which expressed disapproval of the House of Lords for the court of appeal‘s refusal to follow the House of Lord’s prior decision in Rookes v Barnard (1964) AC 1129. By way of operation the civil courts. By horizontal operation of judicial precedent. The doctrine of judicial precedents is operated in vertically and horizontally in Malaysian courts. By vertical operation. The Federal court of Malaysia over ruled a decision of the supreme court of Malaysia. In the case of Cooperative Central Bank v Feyen Development (1997). The Federal Court decided that the decision was wrongly decide. decisions of the Federal court bind all courts. the remarks of Lord Hailsham in Cassell v Broome (1972) AC 1027. The Federal court eventually reviewed the prior decision of Supreme Court. Based on this. Also. This can be seen in the civil matter of Malaysia National Insurance v Lim Tiok. adopted in an unequivocal term. Edgar Joseph Junior. the court of appeal and even the high courts in Malaysia are bound to follow their own prior decision and prior decisions of a court of the same level. it means the higher or superior court binds all courts subordinate to follow its prior decisions. where Justice Chang Min Tat did not follow the decision of his contemporary Justice Smith while exercising appellate jurisdiction.

12 .the Malaysian court system. By so doing. the court of Appeal in Malaysia over ruled High court’s decision in Syarikat Kayu Bersata v OMW(Sarawak)(1995) and other cases which followed it. Similarly. the court of Appeal has dropped the fact that it is bound by its own decision and decision of other court of coordinate jurisdiction.

Also. The courts have had to deal with complex issues arising out of an evolving legal system over the past 50 years. we have seen how exceptions have been created. The next generation of the Malaysian judiciary will need to continue to decide and clarify issues that will invariably arise over the coming years. With growth. the benefits of judicial precedent as well as the operation of doctrine of judicial precedent have been discussed. Nonetheless. the source of law have been examined and the civil law and criminal law have been distinguished. such as the creation of the Islamic banking bench in the civil courts. 13 . The system. which includes recent developments that have taken place naturally. meaningful development of the legal landscape is dependent on respect for the separation of powers on the part of the other branches of government as well.CONCLUSION Based on above discussion. Similar development have taken place in the Shariah courts wherein a federal shariah appellate system was created although the lower court remains at the hands of the states. It must secure the national order and ensure prosperity for the country. The Malaysian legal system is a relatively young one. barely over half a century old. The evolution of the legal landscape as Malaysia moves forward in the 21st century will hopefully be guided by an approach that is true to the spirit of the Constitution and the safeguarding of the fundamental liberties enshrined therein. the country's legal system appears to have been restored into its earlier form to a system that existed before the British influence. In order to do so. is still developing. an independent and impartial judiciary is vital. As such. but there remains much to be developed. As a concluding remark. Constitutionally speaking the two parallel court system seems to be the direction. the law and the legal system must be designed to be mutually advantageous to all the races and religious communities of the country. however. whether the present two parallel court system will remain or continue to develop on separate tracks is still unclear.

Business Law.expatfocus.slideshare. 14 .org/wiki/Sources_of_law https://www.com/case.London: Blackstone Press.REFERENCES https://www. 2015) Doctrine of Judicial Precedent: How It Works? Retrieved from https://prezi. J. I.Bond.com/difference/Civil_Law_vs_Criminal_Law http://www.diffen. K.britannica. P.net/ainnabilarosdi/5-sources-of-law-lecture https://en.dictionary.com/expatriate-malaysia-legal-system Smith T.com/story/what-is-the-difference-between-criminal-law-and-civil-law https://www.com/ulby4qc4vgp9/doctrine-of-judicial-precedent-how-it-works/ Case survey: Donoghue v. ( 1995 ) . Helen J.net/671508286/sources-of-law-52889953 https://www.com/ajcl/articleabstract/2/2/255/2587109?redirectedFrom=fullte xt Noor Fadzhana (26th June. Retrieved from http://lawgovpol.Oxford University Press.Business Law. B (May 2015) The Doctrine of Judicial Precedent Retrieved on 27 May 2018 from https://academic.wikipedia. Stevenson ( 1932 ).com/browse/law https://www. ( 2009 ) .oup.slideshare.study-donoghue-v-stevenson-1932 Lim Mei Pheng.