Bussiness Law notes

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T3 - Sources of Law T3 - Sources of Law and How Legislation and How Legislation are passed are passed

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malaysian Law

Transcript of Bussiness Law notes

Page 1: Bussiness Law notes

T3 - Sources of Law T3 - Sources of Law and How Legislation and How Legislation

are passedare passed

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MEANING OF SOURCES The word ‘sources’ has several meanings:- Historical sources: - factors that have influenced

the development of law although they are not recognized as law. These include religious beliefs, local customs and opinion of jurists

Legal sources : legal rules that make up the law Places where the law can be found – for

example, statutes, law ports and text books Sources of Malaysian Law means the legal

sources i.e. the legal rules that make up the law in Malaysia

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What is this?◦ It is a basic doctrine in modern democratic

government◦ Montesqieu, “The Spirit of Laws” (1748):

The powers of government are to be separated into 3 parts, namely:-

1. Legislative - responsible for making laws2. Executive - to govern, enforce and policies the laws3. Judiciary – to adjudicate or interpret the laws

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1. Legislative - responsible for making laws Parliament and State Legislative Assemblies Parliament comprises of:

Dewan Negara – Elected by State Legislature or appointed by Yang di-Pertuan Agong – “Senator”

Dewan Rakyat - Elected by people – “YB”

2. Executive - to govern, enforce and policies the laws Cabinet – comprises of Prime Minister and other Ministers Supreme policy-making body in Malaysia

3. Judiciary – to adjudicate or interpret the laws Courts:-

Superior Courts - Federal Court, Court of Appeal, High Court Subordinate Courts - Session Court, Magistrate Court and etc

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Check and balance mechanism Lord Acton: “Power tends to corrupt,

and absolute power corrupts absolutely.”

Illustration, says, if all the 3 powers centralised into the cabinet:-

They can set policy to impose death penalty on smoking (Executive function);

They will make law to that effect (Legislative function); They will be the one who sentenced death penalty on

you (Judiciary). Conclusion: Is such separation important?

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Malaysian law can be classified into:-a) Written law; andb) Unwritten law.

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Sources of law can be categories into 2:

1. Written Law which consist ofI. Federal ConstitutionII. State ConstitutionIII. LegislationIV. Subsidiary legislation and V. Syariah Law

 2. Unwritten Law consist of

I. Principles of English LawII. Judicial Decisions and III. Customs

 

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It is the most important source of law It refers to:-

1. Federal Constitution and State Constitutions.

2. Legislation enacted by Parliament and State Assemblies. (Acts, Ordinance and Enactment)

3. Subsidiary legislation made by persons or bodies under powers conferred on them by Acts of Parliament or State Assemblies. (eg Rules, Regulations, By-laws, etc.)

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Generally, they are:-1. Parliament

Laws made by Parliament are called Acts.2. State Assemblies

Laws made by the State Legislative Assemblies (except in Sarawak) are usually called Enactments. The laws in Sarawak are usually called Ordinances.

3. Persons or bodies under powers conferred on them by Acts of Parliament or State Assemblies They are usually known as Rules, Regulations,

By-laws and etc

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Malaysia is a Federation of 13 States with a written constitution, the Federal Constitution.

The Federal Constitution is the supreme law of Malaysia.

Lays down the powers of the Federal and State Governments

Preserves the basic or fundamental rights of the individual.

These rights written into the Constitution can only be changed by two-thirds majority of the total number of members of the legislature.

This is in contrast to normal laws which can be amended by a simple majority.

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Article 4(1) of the :“This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void”

It applies to all the States in Malaysia.

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It set out the powers of the Federal and State Government.

The FC also enshrines the fundamental rights of the individual.

These fundamental rights can only be changed by 2/3 majority of the total numbers of legislature.

These fundamental rights include:- right to be informed of the grounds of arrest as soon as

may be;right not to be detained for more than 24 hours without

an order for remand from Magistrate;protection against retrospective criminal law and etc

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Art 7(1): No person shall be punished for an act which was not punishable by law when it was done or made.

This is also known as “protection against retrospective criminal law”.

Illustration:◦ Ali ate some cake on 29.09.10◦ Parliament enacts law to prohibit and punish the

eating of cake on 30.09.10 and this law (Anti-Cake Act 2010) is to be applied retrospectively (ie “back dated”).

◦ Is Anti-Cake Act 2010 a valid law?

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States in Malaysia, for example: Selangor, Penang, Johor, Sabah, Sarawak and etc.

This mean besides the Federal Constitution which applies to all states in the Federation, each state also possesses its own constitution regulating the government of that State.

Include matters concerning the Ruler, the Executive Council, the Legislature, the Legislative Assembly, financial provisions, State employees and amendment of the Constitution.

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Refers to laws enacted by the Parliament at federal level and the State Legislative Assemblies at state level

In Malaysia, laws are enacted by Parliament at federal level and by the various State Legislative Assemblies at state level.

They have to enact laws subject to the provisions set out in the Federal Constitution.

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III. Legislation Ordinance = Laws that are enacted by

Parliament after 1946 but before Malaysia’s Independence in 1957. / The laws in Sarawak

Acts = Laws that are made after 1957 Enactments = Laws made by the State

Legislative Assemblies (except Sarawak)

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Meaning of “subsidiary” = secondary Subsidiary legislation also known as

“delegated legislation” Usually made by Minister or someone who

authorised under the parent act. Section 3 of the Interpretation Acts 1948 and

1967 defines “subsidiary legislation” as:“any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Act, Enactment, Ordinance or other lawful authority and having legislative effect.”

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Concept of parent and subsidiary legislation.

Parent act also known as “enabling act” For example:

Employment Act 1955

Employment (Termination and Lay-Off

Benefits) Regulations

1980

Parent Act(made by

Parliament)

Subsidiary Legislation (made by Minister)

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i. Orders in council. This is the highest form of delegated legislation, many Acts of Parliament being brought into operation in this way. The power to make the Order being contained in the Act.

ii. Rules and regulations. A statue may authorize a minister or a government department to make a wide variety of rules and regulations. These rules, Orders in Council are collectively known as statutory instruments (SIs).

iii. By Laws. These are rules made by local authorities. Their operation is restricted to the locality to, which they apply.

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ADVANTAGES DISADVANTAGES 1. Saves limited time in

Parliament; 2. Allow rapid change; 3. MPs lack detailed or technical

knowledge. E.g. Specific details in Abortion Act, Road Traffic detail

4. Quick response to new developments, e.g. Foot and Mouth outbreaks. The Prevention of Terrorism (Temporary Provisions) Act allows the quick addition of new prohibited groups.

5. Enables minor changes to statutes, e.g. Variations in sentences, approval of motor vehicle changes.

6. Model bylaws available from Whitehall.

1. implies that Parliament has insufficient time to scrutinize it. Parliament is not reviewing legislation properly.

2. Sub-delegation of powers a further problem (although not for EU statutory instruments), which causes complexity and confusion.

3. Sheer volume causes complexity - it is impossible for anyone to keep abreast of all delegated legislation.

4. Lack of publicity, not known about by the public (and often lawyers).

5. It is undemocratic as most regulations are made by civil servant or other unselected people, except for local authority bylaws made by elected councilors

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V. Syariah Law/ Islamic Law Article 3 (1) of the Federal Constitution provides

that Islam is the religion of the federation. Islamic law is only applicable to Muslims as Article

11 of the Federal Constitution guarantees every person’s right to profess and practice his religion

Islamic law is administered in each state according to the Administration of Muslim Law Enactments or Ordinance.

It governs Muslim’s family law (marriage, divorce, right to custody), and some aspects of personal law (e.g. wills, inheritance) and other offences that are not covered by the Penal Code (e;g. Khalwat).

Administered in Syariah Courts that possess civil jurisdiction in proceeding parties who are Muslims and limited criminal jurisdiction.

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What is unwritten law? The unwritten law comprises the following

(in descending order of importance):1. Judicial decisions of the Superior

Court;2. English Law;3. Customary Law.

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I. Judicial Decisions Definition: A judge has to follow what

earlier courts have decided in a similar situation (precedent). However, a higher appeal court may overturn precedents.

A judge is subjected to the rule of stare decisis that is to stand by cases already decided. This doctrine is also known as the doctrine of judicial precedent or binding precedents.

Judges and magistrates are not bound by decisions regarding the same or similar facts by another court if the decisions were made outside their hierarchy, at the same level or below their level

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In Malaysia, the law is to be found not only in legislation (ie: written law) but also in cases decided by the superior courts.

Only the decisions of superior courts are source of law, as it is these courts that decide on matters of law, whereas subordinate court generally decide on matters of fact.

What is superior court? What is subordinate court?

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Superior Courts are:-1.Federal Court;2.Court of Appeal;3.2 High Courts namely - High

Court of Malaya and High Court of Sabah and Sarawak.

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Subordinate Courts include:-1. Session Court;2. Magistrate Court;3. Penghulu Court (in West

Malaysia)

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• It is generally recognised that judges do make law though not in the same manner as the legislature.Judges make laws in 2 ways:-1. Applying an established rule or principle to a new situation or a set of facts. 2. Interpreting laws enacted by the legislature.

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This occurs most frequently in areas where statutory law has made very little impact such as the law of tort.

Illustration: ◦ Tort of negligence◦ Donoghue v Stevenson [1932] AC 562

Ms. Donoghue, drank ginger beer given to her by a friend, who bought it from a shop. The beer was supplied by a manufacturer named Stevenson. While drinking the drink, Ms. Donoghue discovered the remains of a decomposed snail. She then sued Stevenson for damages ($) as a result of Stevenson’s negligence.

◦ Example: Ali, drank milk given to him by his friend, Mutu, who bought it from a supermarket. The milk was manufactured by Ah Chong’s Food Sdn Bhd. Ali has discovered a decomposed rat in the milk. He then sue Ah Chong’s Food Sdn Bhd for negligence in KL High Court. The KL High Court will then apply the principle established in

Donoghue v Stevenson in Ali’s case and may held in favour of Ali.

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Statute laws are rarely self-contained or self-explanatory and courts are frequently called upon:-◦ To decide what the laws mean; and◦ How the laws are to be applied to particular situations.

Illustration:◦ Smith v Hughes [1960] 2 All ER 859

Under the Street Offences Act 1959, it was an offence for prostitutes to "loiter or solicit in the street for the purposes of prostitution".

The accused were calling to men in the street from balconies and tapping on windows.

They claimed they were not guilty as they were not in the “street”.

The judge held that they were guilty as the intention of the Act was to cover the mischief of harassment from prostitutes.

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Precedent = a superior court’s decision The Hierarchy of Precedent1. Federal Court2. Court of Appeal3. High Court

◦ Illustration: General rule: Federal Court held “A”; Court of

Appeal, High Court, Session Court and Magistrate Court must held “A” and not others.

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English Law means:-1.Common Law2.Equity 3.English Statues

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1. Common Law ◦ based on customs common throughout England◦ It is an unwritten law (not made by Parliament)◦ Based on the decisions/precedents of the superior courts◦ Available as of right◦ Only available remedy is damages ($$)

2. Equity◦ It was first developed by Lord Chancellor (the King’s right hand)◦ By way of petition to King – decided based on fairness and not

on precedents.◦ Supplemental to common law, use to correct its defects and

reduce its harshness◦ Not available as of right, it must come with clean hand (not

due to your own fault) + court’s discretion◦ Equitable remedy – Injunction. This is an order of the court

directing someone to stop doing something or to do some particular thing.

3. English statutes◦ Laws enacted by the British Parliament.

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II. Customary Law Also known as adat law consists of customs

and traditions of the local people. Among the known adat law in West

Malaysia includes Adat Pepatih and Adat Temenggong.

Native customary laws in East Malaysia are the basic law of the state

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It mainly relates to family matters. For example, marriage, divorce and inheritance.

For example, Chinese Customary Law:◦ Choo Ang Chee v Neo Chan Neo and Ors (1908) 12

SSLR 120 – “the six widows case” The Court held that Chinese marriages under customary

law is polygamous. (in this case, 6 wives/widows) However, many customs have been given way to

statute law enacted by the Parliament. Law Reform (Marriage And Divorce) Act 1976

(Act 164) provides that polygamy is an offence.

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Example of law reports:-◦ Malaysia/Singapore

Malayan Law Journal (MLJ) Current Law Journal (CLJ) Singapore Law Reports (SLR)

◦ UK QB (Queen's Bench Division) Ch D (Chancery Division)

◦ Specialised Law Reports (eg. Tax) Simon’s Tax Cases (STC)

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Civil Action Criminal Action

Contract dispute, tort and etc. Theft, murder, computer crimes and etc.

Summons/Suits Prosecute/Prosecution

Plaintiff Public Prosecutor/Deputy Public Prosecutor

Defendant Accused

Liable Guilty

Plaintiff v Defendant(Ben Hon v Ali)

Public Prosecutor v Accused(PP. v Ali)

v = and v = against

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Civil Action Criminal ActionStandard of proof: Balance of probabilities

Standard of proof: Beyond reasonable doubt

Remedies: Damages ($$), injunction, specific performance and etc

Sentences: Death penalty, imprisonment, fine

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Bona fide – Good faith Mala fide – Bad faith

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The Malaysian Legal System, Wu Min Aun, 1999, 2nd Ed.

An Introduction to the Malaysian Legal System, Wan Arfah Hamzah & Ramy Bulan, 2003.

Tun Mohamed Suffian’s An Introduction to the Constitution of Malaysia, Tunku Sofiah Jewa & others, 2007, 3rd Ed.

General principles of Malaysian law, Lee Mei Pheng, 2nd Ed.