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CHAPTER

An Introduction to the
Concept of Law in Malaysia

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OBJECTIVES
This chapter:

defines the concept of law in

Malaysia in relation to the state
and the Constitution

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PREVIEW

What is Law?

Law, the State and the Constitution

- Law in Malaysia
- What is a State?

Classification of Law
- Public Law
- International Law
- Private Law

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Why do we need LAW?

(do we really need law?)

is a means or device to regulate the economic and

social behaviour of society
aims to preserve the economic and social welfare of
our society
is needed to regulate and control the affairs of society
is a regulatory device providing the mechanism for
society to function through tools such as legislation
and case-law
guarantees our freedom, enables free enterprise and
provides a means to settle disputes amicably

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WHAT IS LAW?

It is a set of rules / tools that regulates interactions

that people have with each other, and which sets
standards of conduct between individuals and
between individuals and the government and
which are enforceable through sanction.

To the layman, law is understood as being a

general rule of conduct.

The Oxford English Dictionary defines law as the

body of enacted or customary rules recognized by
a community as binding.

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WHAT IS LAW? (cont.)

Sir John Salmond in Jurisprudence, defines

law as:
the body of principles recognized and applied
by the State in the administration of justice

John Austin in The Province of Jurisprudence

Determined, describes law as a command set
by a superior being to an inferior being and
enforced by sanctions (punishments).

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WHAT IS LAW? (cont.)

the term law is defined both by Article 160 (2) of

the Federal Constitution and Item (43C) of
section 2(1) of the Interpretation and General
Clauses Ordinance 1948 to include:
(a) the written law
(b) common law in so far as it is in operation in
the Federation or any part thereof
(c) any custom or usage having the force of law in
the Federation or in any part

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LAW, THE STATE AND THE

CONSTITUTION

law in Malaysia, which consists of Peninsular

Malaysia, Sabah and Sarawak, is one political unit
but it is not governed by the same set of laws

attempts are made to achieve uniformity in the law

throughout Malaysia but this is not possible in all
areas of the law
2 links uniting the two parts of Malaysia:

the Parliament
the Federal Court
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WHAT IS A STATE?

legal systems are administered almost entirely on

the basis of the political unit known as the State

for international purposes, Malaysia is one state

within Malaysia, however, there are thirteen states

each state has a government and has rules which

lay down who shall govern and how

Malaysia has a written constitution Federal

Constitution the supreme law of the Federation

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WHAT IS A STATE? (cont.)

Article 4(1) of the Federal Constitution:

4. Supreme Law of Federation.

(1) This Constitution is the supreme law of the Federation

and any law passed after Independence Day which is

inconsistent with this Constitution shall, to the extent of
the inconsistency be void.
laws enacted by Parliament which are inconsistent with
the Federal Constitution may be declared void by the
courts
see *R Rethana v The Government of Malaysia & Anor
c/f, Repco Holdings Bhd v Public Prosecutor

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WHAT IS A STATE? (cont.)

The Federal Constitution confers legislative power to

the Federal Parliament and the State legislatures.
Article 73:

73. Extent of Federal and State Laws

In exercising the legislative powers conferred on it by
this Constitution:
(a) Parliament may make laws for the whole or any
part of the Federation and laws having effect outside
as well as within the Federation
(b) The legislature of a State may make laws for the
whole or any part of that State
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WHAT IS A STATE? (cont.)

parliament may make laws for the whole of Malaysia

Article 74:
Parliament may make laws with respect to any of the
matters enumerated in the Federal List or the
Concurrent List.
The Federal List:
1. External affairs
2. National defence
3. Internal security

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WHAT IS A STATE? (cont.)

4. Civil and criminal law and procedure and the
administration of justice
5. Federal citizenship and naturalization; aliens
6. The machinery of government
7. Finance
8. Trade, commerce and industry
9. Shipping, navigation and fisheries
10. Communications and transport
11. Federal works and power
12. Surveys, inquiries and research
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WHAT IS A STATE? (cont.)

13. Education
14. Medicine and health
15. Labour and social security
16. Welfare of the aborigines
17. Professional occupations
18. Holidays; standard of time
19. Unincorporated societies
20. Control of agricultural pests; etc
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WHAT IS A STATE? (cont.)

21. Newspapers; publications; publishers; printing and

printing presses
22. Censorship
23. Theatres; cinemas; public amusements
24. Federal housing and improvement trusts
25. Co-operative societies
26. Prevention and extinguishment of fire, including fire
services and fire brigades

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WHAT IS A STATE? (cont.)

The Concurrent List:
1. Social welfare, social services, protection of
women, children and young persons
2. Scholarships
3. Protection of wild animals and wild birds;
National Parks
4. Animal husbandry
5. Town and country planning
6. Vagrancy and itinerant hawkers
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WHAT IS A STATE? (cont.)

7. Public health, sanitation and prevention of diseases
8. Drainage and irrigation
9. Rehabilitation of mining land and land which has
suffered soil erosion
10. Fire safety measures and fire precautions in the
construction and maintenance of buildings
matters enumerated in the Concurrent List may also
be the subject-matter of laws made by the state
legislatures
the State Legislature may also make laws with
respect to any of the matters in the State List
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WHAT IS A STATE? (cont.)

The State List:
1. Islamic law and personal and family law of Muslims;
Malay customs; offences by Muslims; Syariah Courts
2. Land
3. Agriculture and forestry
4. Local government
5. Local services
6. State works and water
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WHAT IS A STATE? (cont.)

7. Machinery of the State Government
8. State holidays
9. Offences against State Law
10. Inquiries for State purposes
11. Indemnity
12. Turtles and riverine fishing

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WHAT IS A STATE? (cont.)

see Mamat bin Daud & Ors v Government of

Malaysia, Ketua Pengarah Jabatan Alam
Sekitar & Anor v Kajing Tubek & Ors and other
appeals

if any state law is inconsistent with a Federal

law, the Federal law shall prevail Article 75,
Federal Constitution

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WHAT IS A STATE? (cont.)

if any State law is inconsistent with a Federal

law, the Federal law shall prevail and the State
law shall, to the extent of the inconsistency, be
void

State legislatures have the power to make laws

with respect to any matter not enumerated in
any of the Lists set out in the Ninth Schedule
and which are not a matter in respect of which
Parliament has power to make laws

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CLASSIFICATIONS OF LAW
Major legal systems:
Civil law
Common law
SinoSoviet
Islamic
Hindu
Talmudic
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CLASSIFICATIONS OF LAW
(cont.)

in general, the legal systems of the world are classified

into 3 main types:
a) Civil law
b) Common law
c) Socialist law

the Malaysian legal system is a common law system

in Malaysia, law has been classified into 3 broad

divisions:
a) Public law
b) International law
c) Private law

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PUBLIC LAW
law which governs the relationship between
individuals and the state
subdivided into two categories:

Constitutional law
b) Criminal law
a)

constitutional law lays down the rights of

individuals in the state
criminal law codifies the various offences
committed by individuals against the State

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INTERNATIONAL LAW

body of law which is composed for its greater part

of the principles and rules of conduct which
states feel themselves bound to observe, and
consequently commonly do observe, in their
relations with each other

subdivided into two categories:

Public international law

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INTERNATIONAL LAW (cont.)

Private international law (conflict of laws)
A part of municipal law
Rules that guide a judge when the laws of more
than one country affect a case

two main sources of international law that affect

businesses:
a) Customary Rules of International Law
b) Treaties and Conventions

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PRIVATE LAW (CIVIL LAW)

matters that affect the rights and duties of

individuals amongst themselves
intended to give compensation to persons
injured, to enable property to be recovered from
wrongdoers, and to enforce obligations
(contracts and trusts)
covers:
Contract
Tort
Trust

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PRIVATE LAW (CIVIL LAW) (cont.)

Contract
based on agreement
essential elements in a contract:
1. Offer
2. Acceptance
3. Capacity to contract
4. No mistake, misrepresentation or
undue influence
5. Object must be lawful
6. Intention to enter into legal relations
7. Consideration
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PRIVATE LAW (CIVIL LAW) (cont.)

Tort
based on an obligation imposed by law
a civil wrong
the breach of a general duty which is imposed
by the law (and not agreed between the
parties)
remediable by a civil action for unliquidated
damages
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PRIVATE LAW (CIVIL LAW) (cont.)

any person whose legal right is infringed

may sue that wrongdoer

essential elements of a tort:

there must be an act or omission done
intentionally or negligently
there must be damage caused by such
act or omission which is not remote

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PRIVATE LAW (CIVIL LAW) (cont.)

Trust
an equitable obligation binding a person (a
trustee) to deal with property over which he
has control (trust property) for the benefit of
persons (beneficiaries or cestui que trust) of
whom he may himself be one and any one of
the beneficiaries may enforce the obligation

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