LECTURE 1 : LECTURE 1 :

ATGB 2643 ATGB 2643 -- LEGAL LEGAL STUDIESSTUDIES

1

LECTURE 1 : LECTURE 1 : INTRODUCTION TO INTRODUCTION TO LEGAL SYSTEMLEGAL SYSTEM

LEARNING OUTCOMESLEARNING OUTCOMES

At the end of this lecture, students will be able to :

�Identify the government and law, sources of law,types/classification of law

�Differentiate the written/unwritten law

2

�Differentiate the written/unwritten law

�Discuss the legislation procedures, court decisions,

�Discuss the role of federal/state government andEnglish law

�Discuss the hierarchy of courts

�Explain the federal constitution, powers of federal andstate governments

WHAT IS LAWWHAT IS LAW

� Law can be defined as a body of rules and regulationswhich are developed and enforced by the governmentto deal with crime, business arrangements and socialrelationships

3

� Law is typically administered through a system ofcourts in which judges hear disputes between partiesand apply a set of rules in order to provide anoutcome that is just and fair. The manner in which lawis administered is known as a legal system, whichtypically has developed through tradition in eachcountry.

WHAT IS LAW WHAT IS LAW Cont’dCont’d

� Most countries rely upon the police to enforce thelaw :Ie; to issue legal warnings and citations, executesearch or other legal warrants and to make arrests

4

FUNCTIONS OF LAWFUNCTIONS OF LAW

� Law is based on the concept of ‘fault’.

� Example : passing of sentences in criminal cases andaward of damages in civil cases

� Law is said to have the following functions:

To govern and regulate the conduct of the people

5

�To govern and regulate the conduct of the peopleand organisations in a community, society or nation

�To protect and preserve the safety and well-beingof the society from those who would threaten it

�To punish the guilty with aims of retribution,deterrence and rehabilitation

�To strike a true balance in the scale of justice

CATEGORIES OF LAWCATEGORIES OF LAW� Public law�Regulates the relationship between an individualand the community

�Example: constitutional law (concern about rightsof individuals in the community), criminal law(concern with various offences committed by

6

(concern with various offences committed byindividuals against community)

�Parties involved : the ‘public prosecutor’ & the‘accused’ (in criminal cases)

�Standard of proof : the court must be convincedthat the ‘accused’ is guilty beyond all reasonabledoubt

�Punishment : sentence in the form of fine and/orimprisonment

CATEGORIES OF CATEGORIES OF LAW LAW cont’dcont’d

� Private law

�Sometimes referred to as civil law

�Regulates the relationship between individuals in thatcommunity

�Includes law of contract, tort, trust, land, family,company, partnership, agency and etc

7

company, partnership, agency and etc

�Legal action undertaken as an initiative of theindividual

�Parties involved : the plaintiff and the defendant

�Standard of proof : burden of proof is on the plaintiffwho is to prove his/her case ‘on the balance ofprobabilities’

�Punishment : monetary compensation as remedy

The development OF The development OF Malaysian LAWMalaysian LAW8

Prehistoric period

Historic Period- Pre-European Era, - Hindu-Buddhist Influences - Chinese Influence - Islamization and the Melaka Sultanate

European ColonialismEuropean Colonialism

The Japanese Invasion and Its Aftermath

Independence

Towards Malaysia

SOURCES OF MALAYSIAN LAWSOURCES OF MALAYSIAN LAW

� Written law – the federal and stateconstitutions, legislation and delegatedlegislation

� Unwritten law – law which is not enacted by the

9

� Unwritten law – law which is not enacted by theparliament or the State Assemblies. Unwrittenlaw includes customs, case law (judicialprecedent), English common law and equity

� Islamic law

The federal constitutionThe federal constitution

� The supreme law of the federation

� Any general law that is inconsistent with theconstitution is void to the extent of theinconsistency

10

inconsistency

� Establishes a constitutional monarchy and afederal system of government

The federal constitution The federal constitution cont’dcont’d

� Divides legislative powers between thefederal government and the stategovernments

� Federal lists – ie civil & criminal law

11

� Federal lists – ie civil & criminal lawprocedure, finance, education

� State list – islamic law , malay customs, landmatters, agriculture, local government, etc

� Concurrent list – ie town & country planning,drainage & irrigation, housing

The doctrine of the The doctrine of the separation of powersseparation of powers

� In federal constitution, the 3 separate bodiesof Government are defined as :

�Executive – elected representatives chargedwith the task of administration

12

with the task of administration

�Legislative- parliament given the responsibilityto make law

�Judiciary – judges appointed to interpret andapply the law (independence of judiciary)

The state constitutionsThe state constitutions

� All 13 states comprising of the federationhave individual constitutions which provide fora single chamber Legislative Assembly in eachState.

13

State.

� Constitutional Ruler : ‘Sultan’, ‘Yang di-PertuanBesar’(NS), ‘Raja’ (Perlis), ‘Yang di PertuaNegeri’ (Penang, Melaka, Sabah & Sarawak)

� State government is headed by ‘Chief Minister(Menteri Besar), assisted by Executive Council

LegislationLegislation

� Refers to statues passed by parliament orthe state legislative assemblies

� ‘act’ – a federal law made by parliament

� ‘enactment’ – a state law made by a State

14

� ‘enactment’ – a state law made by a StateLegislative Assembly with the exception ofSarawak where its law are called Ordinances

� ‘Ordinance’- a law enacted by Parliamentafter 1946 but before Malaysia’sindependence in 1957.

Delegated legislationDelegated legislation

� Means any rule, regulation, order, notificationor by-law enacted by an authority underpowers conferred on it by a statue

15

powers conferred on it by a statue

� Ie : uniform building by-law which was madeunder the Street Drainage & Building Act1974

� Also known as ‘subsidiary legislation’

Customs Customs

� Relates with family law ie; marriage, divorce andinheritance, are given legal force by courts inMalaysia

16

� Example of local customs ; ‘adat pepatih’ and ‘adattemenggong’ in Peninsular Malaysia ; nativecustomary law in Sabah & Sarawak (eg; in landdealings over native customary land)

Case law Case law (Judicial Precedent)(Judicial Precedent)

� Law to be discovered by reading the earliersimilar cases

� Judges are bound by the rule of judicial

17

� Judges are bound by the rule of judicialprecedent

� Hierarchy of courts in order of inferior tosuperior courts:

� Ie Chung Peng Chee v Cho Yew Fai & Ors[1954]MLJ 100

English Common Law & English Common Law & EquityEquity

Civil law act 1956

� Section 3(1) : the rules of common law (case lawdecided by the English Common law Court) andequity (decided by the English Court of Equity)may be applied by the Malaysian courts, if it is

18

equity (decided by the English Court of Equity)may be applied by the Malaysian courts, if it isdeemed to be appropriate to do so based on thefacts of the case and the situation at hand.

� Section 3(2) : In the event of conflict or variancebetween the common law and the rules of equitywith relevance to the same matter, the rules ofequity shall prevail.

EquityEquity• Is the name given to the set of legal principlesin countries following the English common lawtradition , which supplement strict rules of lawso as to achieve ‘natural justice’

• The principles of the law of equity are based

19

• The principles of the law of equity are basedon the concept of fairness and are generallyused when there are:

• No other specific principles that apply orspecific principles that apply , but to applythem would lead to an unjust result in the case

Muslim LawMuslim Law

� Muslim law is applicable only to Muslims and administered in the Syariah Courts (established by the State)

� Civil courts have no jurisdiction in respect of

20

� Civil courts have no jurisdiction in respect of any matter within the jurisdiction of the syariah courts

The legal institutionsThe legal institutions� The judiciary is empowered by the Constitution tointerpret the Federal and State Constitutions.

� It is an independent body separate from thelegislative and executive arms of government

� The courts in Malaysia are as follows:

21

� The courts in Malaysia are as follows:

� Penghulu court

� Magistrates’ court

� Session court

� High court

� CA

� Federal court

The legal The legal institutions institutions Cont’dCont’d

� Courts created for specific purposes:

�Juvenile court

�Native court

22

Native court

�Syariah court

�Employment court

�Special court

Statutory interpretationStatutory interpretation

� The duty of courts is apply the law laid down in the statueto the particular facts which face the courts in each case,so as to beget justice between the parties of the suit.

� General rules are :

�The literal rule – the courts should give them that meaningwithout any gloss

23

�The literal rule – the courts should give them that meaningwithout any gloss

�The golden rule – where words in a statue are ambiguous ,that meaning should be given which best expresses theintention of parliament

�The mischief rule – the court will attempt to answer thequestion ‘what does the statue mean’ by asking ‘what wasthe mischief (or unsatisfactory state of affairs) whichParliament meant the Act to remedy?

LITIGATIONLITIGATION

� The process of fighting or defending a case in acivil court of law

� Litigate – to take legal action

� In Malaysia, court cases are presented andconducted under an adversarial system, as

24

� In Malaysia, court cases are presented andconducted under an adversarial system, asadopted in England, in which plaintiff and thedefendant are to find evidence to be presentedto the judge to adjudicate, whereas some otherEuropean countries adopt a different system –the inquisitorial system in which the judge has theduty to find evidence and investigate the case

How does the court determine How does the court determine How does the court determine How does the court determine How does the court determine How does the court determine How does the court determine How does the court determine which party would get which party would get which party would get which party would get which party would get which party would get which party would get which party would get judgment in their favor?judgment in their favor?judgment in their favor?judgment in their favor?judgment in their favor?judgment in their favor?judgment in their favor?judgment in their favor?

� Civil case

�Whose case is stronger : plaintiff – plaintiff wins;defendant – defendant winsdefendant – defendant wins

�Balance of probabilities is almost even – defendantwins (as the burden of proof is on the plaintiff)

� Criminal case

�Doubt : reasonable – accused acquitted; notreasonable – accused convicted

25

‘PRIMA FACIE’ case‘PRIMA FACIE’ case

� A Latin phrase which means ‘at first glance’ or‘on the face of it’

� Once the plaintiff/public prosecutor (PP) hasadduced their evidence , the judge must decideif there is a ‘prime facie’ case; ie sufficient

26

if there is a ‘prime facie’ case; ie sufficientjustification that there is a case to answer

� ‘Prima facie’ is not a conclusive finding of guilton the charges. The finding of whether thedefendant or accused is guilty or not of theallegations is made at the conclusion of the trial

‘PRIMA FACIE’ case ‘PRIMA FACIE’ case cont’dcont’d

� If the judge is of the opinion that the plaintiffor public prosecutor has not proven a ‘primafacie’ case, the judge must give judgment infavour of the defendant or accused

27

favour of the defendant or accused

� Principle : presumption that the defendant /accused are innocent until proven to thecontrary

How the case proceed?How the case proceed?� A case proceeds in the following sequence:

�Plaintiff / PP begins their case

�Plaintiff / PP concludes their case

�The judge makes a findings of whether there is a ‘primafacie’ case

28

facie’ case

�No ‘prima facie’ case - judgement in favour ofdefendant/accused; OR ‘Prima facie’ case proved –defendant/accused called on to begin their case

�Defendant /accused begin their case; OR Exercisetheir rights of silence

� The judge decides on whether the defendant/accusedare liable /guilty or not

ALTERNATIVE DISPUTE ALTERNATIVE DISPUTE RESOLUTION (ADR)RESOLUTION (ADR)

� Martin, E.A (1997) defined ADR as any of a varietyof techniques for resolving civil disputes without theneed for conventional litigation.

� Arbitration

� it is a process that requires third party or we called

29

� it is a process that requires third party or we calledas arbitrator, which empowered to resolve theproblems as stated in the arbitration agreement.

�Arbitrator – private judge

�The award – final and binding on the parties

�The law of arbitration is codified in the ArbitrationAct 1952

ALTERNATIVE DISPUTE ALTERNATIVE DISPUTE RESOLUTION (RESOLUTION (ADR) ADR) –– cont’dcont’d� Mediation

�A private, informal dispute resolution process in whicha neutral third person, the mediator, helps disputingparties to reach an agreement

�The mediator has no power to impose a decision on the

30

�The mediator has no power to impose a decision on theparties

�The advantages of mediation are informality, speed,economy and often leads to an agreed settlementbetween the parties

�Once the mediator is able to obtain an agreement, theparties come together and draft and sign asettlement agreement

ALTERNATIVE DISPUTE ALTERNATIVE DISPUTE RESOLUTION (RESOLUTION (ADR) ADR) –– cont’dcont’d

� Tribunal

�A group of people appointed to inquire into some matteror dispute and to adjudicate.

�Ie: ‘Tribunal For Homebuyer Claims’ etsablished underthe Housing Development Act 1966 which is to hear any

31

the Housing Development Act 1966 which is to hear anyclaim brought by a homebuyer (if amount is less than RM25,000)

judicialjudicial

� Judiciary system of a country is run by the governmentfor the people. Just like other departments run by thegovernment people expect judiciary to work for theirwelfare. People want the judiciary should be efficientand clean so that and has no influence over it from any

32

and clean so that and has no influence over it from anyexternal agency. A fair and transparent judiciary systemof the country earns huge respect from its people.

REFERENCESREFERENCES

1. Bruce, Richard H (1991). Success in Law (3rd Ed). John Murray Ltd :London

2. Curzon, L.B (2002). Dictionary of Law (6th Ed). Pearson educationLimited : England

3. Lee, Mei Pheng (2005).General Principles of Malaysian Law (5th Ed). FajarBakti : Malaysia

4. Lecture note from Ar. Chang Choong Yew

33

4. Lecture note from Ar. Chang Choong Yew

5. Martin, E.A (1997). Oxford Dictionary of Law (4th Ed). Oxford UniversityPress : New York

6. Singh, K.S.H (2003). Engineering and Construction Contract Management.Post Commencement Practice. LexisNexis: Singapore

7. Venugopal, A.V (2001). Introduction to Law in Malaysia. Sweet & MaxwellAsia : Malaysia

8. Vohrah, B and Aun, W.M (2000). The Commercial Law of Malaysia. PearsonMalaysia Sdn Bhd : Malaysia