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Week 1 - Chapter - 1 - Principles of Law
Week 1 - Chapter - 1 - Principles of Law
Practice
ECM 517
Principles of Law
Lesson Learning Outcomes
At the conclusion of this lesson, we should be
able to:
Discuss what is Law.
Describe the various types of Laws
State the sources of Law
What is Law?
Law has many definition
The written and unwritten body of rules largely derived from custom and
formal enactment which are recognized as binding among those persons
who constitute a community or state, so that they will be imposed upon and
enforced among those persons by appropriate sanctions
Curzon
The Torah from the Old Testament is probably the oldest body of
law. It was written in about 1280 BC. It has moral rules such as
the Ten Commandments, that tell people what acts are not
permitted.
Law in Malaysia - History
Native legal system (Negrito, Senoi and Malay
Aborigin)
The Malacca Sultanate
The spread of Islam to South East Asia
The extension of British colonial
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Law, State and Constitution
Peninsular, Sabah and Sarawak 1 political unit
yet different sets of law
2 common links:
Parliament can and does whole country legislation
Federal Court is the final court of appeal for the whole country
Internationally, Malaysia is a state
Locally, within Malaysia there are 13 states
each has a government and rules
Malaysian written constitution i.e. Federal
Constitution as supreme law
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Classification of Law
Law regulates the citizen in their relations
with the State (government) and with one
another. An easy way to see how it operates
in the legal system is to classify it in the light
of its relationship. Law can be classified into
Per Content, Per Sources and Per
Enforcement.
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Categories of Law
International
Law
Public Law
Public law regulates the relationship between
the citizen and the state
Trust law sets out the rules for money that is put into an
investment, such as pension funds that people save up for
their retirement.
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Written Legislation
Laws enacted by a body constituted for this purpose
In Malaysia, laws are legislated by Parliament
Laws enacted before 1957 are known as Ordinances,
after 1957 are Acts
Laws enacted by State Legislative Assemblies
(Dewan Undangan Negeri) are called Enactments
(Sarawak Ordinances)
Used as a mean of repealing, amending, enacting or
codifying the law
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Written
Regulations/Sublegislations
Any proclamation, regulation, order,
notification, by-law or other instrument made
under any ordinance, enactment or lawful
authority and having legislative effect
Detail the Parliament and State legislature to
govern everyday matter
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Unwritten English Law
Part of Malaysian law
Sources are English common law and rules of
equity
Earlier application without modification
Nowadays subjects to:
Absence of local statutes (written law passed by a
legislative body) on particular subjects
Suitability to local context
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Unwritten Judicial Decisions
Found in the judicial decisions of:
High Court
Court of Appeal
Federal Court
Supreme Court
Judicial Committee of Privy Court (Jawatankuasa Kehakiman)
Advantages:
Practical based on actual experiences
Flexible compared to law enacted by Parliament
Rich in legal detail than statue law (written enactment of a legislative authority
that governs a state, city or country)
Cases should be treated in a similar fashion by the courts to ensure justice
Disadvantages:
Greater research needed
Difficult to tell the statement in a judgment is ratio or dicta
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Unwritten Judicial Decisions
Doctrine of Stare Decisis/judicial precedent
Sources of law where past decisions of the judges
create law for future judges to follow
Also known as case law, which is one of the primary
sources of English law and Malaysian law
Create certainty of outcome for future case and
scope for the common law to be modified and updated
Way of operation:
Vertical bound by the prior decisions of a higher court
Horizontal bound by their own prior decisions and prior
decisions of a court of the same level
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The impotance
Its create certainty of outcome for future case and scope for the
common law to be modified and updated.
Legal profession can give more helpful advice regarding the law to
their clients, including advice as to the merits of the case and, just as
importantly, advice regarding the outcome.
This certainty leads to consistency and fairness in that like cases are
dealt with in a similar way.
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Unwritten Customary Laws
West Malaysia Customary Laws
Undang-Undang Adat Melayu tradition
elements:
Undang-Undang Adat Melayu Purba i.e. Adat Pepatih
and Adat Temenggung
Undang-Undang Hindu
Dharmasutra - manuals of human conduct
that form the earliest source of Hindu law
Dharmasastra - poetic
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Unwritten Islamic Law
Applied to Muslim, regardless of race
Extends to family matters and inheritance
Administrates by Syariah Courts (Islamic
courts) at state and in Federal Territories of
KL and Labuan
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Organisation of Civil Court
Hear and
determine by
Ruler of YDPA
Syariah Court
Syariah Court
Native Court
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The Malaysian Judiciary
Federal Court
To the exclusion of any other court
Determine validity of law made by Parliament/State
Exclusive jurisdiction to determine dispute between States and Federal
Ultimate court in civil, criminal and constitutional matters
Court of Appeal
With appellate jurisdiction to hear civil and criminal cases of High or Session Courts
High Court
Criminal cases which carry death penalty
Civil cases of divorce, admiralty (maritime law), bankruptcy and company matter
Session Court
Criminal all offences other than offences punishable with death
Civil Cases
Magistrates Court
Criminal cases
Civil cases
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Rule of Law
The Rule of Law is the law that says that Government can
only legally use its power in the way the government and
the people agree.
It limits the powers a Government has, as agreed in a country's constitution.
The Rule of Law prevents dictatorship and protects the rights of the people.
When leaders enforce the legal code honestly, even on themselves and their
friends, this is an example of the rule of law being followed.
"The rule of law", wrote the ancient Greek philosopher Aristotle in 350 BC, "is
better than the rule of any individual."
Professional Engineers and The Law
Engineers like other professional people, have a duty
to acquire a working knowledge of the law as it
affects their professional work
.
In the case of an engineer the relevant fields of law
are notably those of contract, especially the standard
forms of building contract, and the various statutory
regulations, such as the Building Regulations,
planning law, health and safety law, procurement law,
and the like
Professional Engineers and The Law
Although, an engineer is not expected to know all the
law in depth, but he is expected to ensure that his
client does not suffer from the absence of his own
legal knowledge.
He is expected to know enough law and shall be
aware of the circumstances in which specialist legal
advice is needed.
He should then advise his client to obtain legal
advice.
Alternatively, he should himself instruct a barrister
directly.
Professional Engineers and The Law