Introduction To Law PDF

INTRODUCTI ON TO LAW CHAPTER 1  · Students should be able to: Be familiar with the term law, sources of Malaysian Law, the Malaysian LEARNING Government system and OUTCOME...

INTRODUCTI ON TO LAW CHAPTER 1  · Students should be able to: Be familiar with the term law, sources of Malaysian Law, the Malaysian LEARNING Government system and OUTCOME Malaysian Judicial system. 2 What is law? INTRODUCTION -WHAT IS LAw ? A general rule of conduct and The body of enacted or customary rules recognized by a community asO binding (Oxford English Dictionary). - diJilidkan > - dikuatkuasakan Olen A body of rule which is enforceable by the State. Kerajaan negeri 3 What is the law's aim? hubung kaif LAW IN RELATION TO JUSTICE The aim is to attain justice in society. Justice? It is an abstract idea of right and wrong , fairness and equality. Mengalakkan melakukan Therefore, the aim of a given law is to encourage the doing of what is right. betul. penara 4  Pengelasan far CLASSIFICATION OF LAW CLASSIFICATIO N OF LAW untuava INTERNATIONA PUBLIC LAW PRIVATE LAW L LAW Govern the relationship Law that prevails Rights and duties of individual between individuals and the state between amongst themselves PUBLIC PRIVATE CONSTITUTION INTERNATIONA INTERNATIONA CONTRACT TRUST TORT CRIMINAL LAW AL Right LAW of f Offences against the state. L LAW L LAW Offences against Rights and obligations Relationship between trustee individuals in the Obligation imposed on individuals that arise by agreement and by beneficiary individuals state individu Haky untuk bersvara dalam negeri - 5 It governs the relationship between individuals and the state PUBLIC LAW Constitutional Law o Lays down the right of indv. In the state. o Deals with questions such as supremacy of Parliament& rights of citizens Criminal Law Perlanggaran bermentangm negen ; o Offences against the state. Kewajipan atas individu dikenakan o Obligations imposed on individuals ke dengan Cara o Function of criminal law is to punish the offender by way of imprisonment, fine and/ or caning penjara , denda Sebatan 6 Law that prevails between states. INTERNATIONAL LAW International law is a body of rules and principles governing the relations of nations between each other. Pencorobon an ful di 2013-Lahad Topics covered in an international law:- date o Treaties : Agreement between states dealing with any matter of international concern o Jurisdiction : Power of a state to make and enforce its laws at the · unde international level Johor , Singapura o State responsibility for wrongful acts Israel a Palestine o Human rights - Humme genocide o War and peace 7 1. Public International Law INTERNATIONAL LAW V The law that prevails between States o “Public International Law is the corpus (main part) of legal rules applying between sovereign states. It deals with relationship between states” Legal rules such as: o Law of sea o International criminal law o International humanitarian law o Eg: Singapore & Malaysia ( Pulau Batu Puteh) 8 2. Private International Law INTERNATIONAL LAW The body of rights and duties of citizens of different sovereign states towards one another. Also known as a ‘municipal law’. Every country may have its own version of law The rules will guide the judge when the law in more than one country affects a case (conflicts - of law) Legal issues on: o Civil or human rights o Negligence o Contract o Not only between a government and its own citizens but also in how its citizens are treated by other nations. 9 PRIVATE LAW Concerned with matters that affect the rights and duties of individuals amongst themselves. Contract o Rights and obligations that arise by agreement o Based on the agreement between two parties (offer and acceptance) Collective bargaininga negotiation o Must meet all essential elements to form a contract - - 10 Trust PRIVATE LAW Relationship between trustee and beneficiary o Relationship where property is held by one party for the benefits of other party 11 Tort PRIVATE LAW Offences against individuals o No agreement between the parties Perlanggaran o For claims against the civil wrong or breach of general duty - o The act or omission must be wronged Act/omission eg.:(negligence)+ (causation)+fault(kesalahan)+protected interest(kepentingan dilindungi)+ damage(kerosakan)= liability(tanggungan) Case: Barnett v Chealsea& Kensington Hospital Management Committe 12 1.2 SOURCES OF LAW  Sumber SOURCES OF LAW Sources -a place which something comes or is obtained. Source of law can be found in : o Historical sources –Religious belief, local customs, opinion of jurists, historical development. o Legal sources –Formal sources that make law. membuat undang - undang -- 14 Law enacted by parliament or state assemblies WRITTEN LAW FEDERAL STATE PembertUkan -day SUBSIDIARY CONSTITUTIO CONSTITUTIO LEGISLATION LEGISLATION N N 15 1. Federal Constitution WRITTEN LAW Article 4 Fed Cons is the Supreme law of the land Article 75 of the Fed Cons-’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’. Fed Cons provides the basic or fundamental rights of an individual. 16 1. Federal Constitution Undang-Undang Bertulis WRITTEN LAW Arrangement of Articles has 14 Fed Cons comprises of example: o Fundamental liberties (Liberty of the person, Equality) o Citizenship (Citizenship by operation of law, Citizenship by registration (wives and children of citizens) o Election (Conduct of elections, Constitution of Election Commission) o Judiciary (Constitution of Federal Court, Constitution of Court of Appeal ,Constitution of the High Courts) 17 1. Federal Constitution WRITTEN LAW ~ Breach of Authority o First List-Federal eg: education, finance, defence, internal securities o Second List-State eg: Islamic Law, Land, agriculture, local government - o Concurrent List-Federal and State eg: social welfare, scholarship, town, National Parks, drainage, country planning. 18 2. State Constitution WRITTEN LAW Each state has its own constitution (Selangor Constitution, Johor Constitution) Every state has a single chamber ( Legislative Assembly) The State Constitution contains provisions which are enumerated in the 8 Schedule of the Federal Constitution 19 3. Legislation WRITTEN LAW Legislation refers to laws made by a person or body which has the power to make law (Parliament and State Legislative Assemblies) Laws made by Parliament are known as Act Laws made by State Legislative Assemblies Are known as Enactment Laws made by Legislative Assemblies of Sarawak, are known as Ordinance 20 3. Legislation WRITTEN LAW Parliament State Legislative Assemblies Enact laws at Federal level Enact Laws at state level Within limit prescribed by federal Enact laws prescribed by state constitution constitution Laws enacted before 31/8/1957 are Laws enacted by State Assemblies called Ordinance. Laws enacted are called Enactment except after 31/8/1957 are called acts Sarawak laws called Ordinance Parliament can enact law in matters State Legislative Assembly can listed in List I of the nine schedule enact law in matters listed in List II of the nine schedule 21 Legislative Process WRITTEN LAW dikefuai. Article 44 Parliament comprising of Yang Dipertuan Agong, and two houses, Dewan Negara (Senate) and Dewan Rakyat (House of - Representatives) Bill may originate in either Dewan except for money bill must · originate in Dewan Rakyat 22  Legislative Process WRITTEN LAW First Reading menter ministryenterial o Minister formally introduces the bill in the Dewan Rakyat by having its short title read Second Reading o Debate on the general principles of the Bill, followed by a vote Committee Stage pindaan o Detailed examination of the bill and consideration of amendments, followed by a report - Third Reading o Further debate on the general principles of the Bill, Followed by vote 23 Legislative Process WRITTEN LAW Dewan Negara I o Similar procedures as in Dewan Rakyat, If passed the Bill is referred back to Dewan Rakyat Royal Assent o The YDPA affixes the public seal within thirty days of presentation Publication o Act comes into forces o Federal gazzete (Warta Kerajaan Malaysia) 24 Subsidiary Legislation WRITTEN LAW Subsidiary legislation means 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 to parent statute. Makes Gives power to Makes Subsidiary Legislation Parent Act (Employment Act Minister (Not legislature but (Employment (Termination and Legislature (Parliament) 1955) executive) Lay-Off Benefits) Regulation 1980) 25 26 · 27 UNWRITTEN LAW I F S C SYARIAH LAW ENGLISH LAW JUDICIAL PRECEDENT CUSTOMS Hudud Marriage and divorce Divorce Claim Jess 28 English Law Cont.. -24 min +t sir Ade line -. , UNWRITTEN LAW Principles of English Law English Law comprises of two parts oCommon Law (Body of rules developed by old common law courts oEquity Law (to reduces the harshness of law, for justice, the quality to be fair) 29 Reception of English law and Equity through: UNWRITTEN LAW Section 3(1) of English Law Act 1956 o in West Malaysia, apply the common law of England and the rules of equity as administered in England on the 7thday of April 1956 - - o In Sabah, apply the common law of England and the Rules of equity as administered in England on the 1stday December - 1951 - o In Sarawak, apply the common law of England and the Rules of equity as administered in England on the 12thday December 1949 - - 30 Reception of English law and Equity through: UNWRITTEN LAW Section 5(1) & (2) OF Civil Law o For commercial matters o Eg: law of partnership, corporation, banks and banking, principals and agents, carriers by air, land and sea, marine and insurance, life and fire insurance mercantile law. o If there are have developments or changes in English Common Law and Equity after cut off date, they do not become law in Malaysia 31 Reception of English law and Equity through: UNWRITTEN LAW 2 conditions in applying English law in Malaysia: o It is only applied in the absence of local statutes o It can only be applied if it is suited to local circumstances - ada Kenpa balajar eng If · 32 Judicial Precedents UNWRITTEN LAW I Judicial precedents are decisions made by previous cases that have similar situation Precedents are basically decision made by judges previously in similar situations, eg: If the Federal court made a certain decision in 2000 and assuming the facts and situation before a High Court judge deciding a case in 2003 are similar to the said Federal Court case, The High Court judge must decide the case before him by applying the principles laid down by the federal court in 2000. 33 Categories Of Judicial Precedent UNWRITTEN LAW I 1 2 Persuasive Court may but need Binding not apply when deciding the case before High Court judges are I All decision of higher The higher courts are not bound to follow Decision from outside Courts binds the lower bound by their own the decision of another of the Malaysian Court courts decisions High Court Judges 34 MALAYSIA COURTS HIERARCHY LOWER COURT HIGHER COURT OF COURT HIGH COURT (WEST) SESSION COURT MAGISTRATE AND JUVENILE FEDERAL COURT COURT OF APPEAL COURT OF HIGH COURT (EAST) SESSION COURT MAGISTRATE AND JUVENILE 35 Custom UNWRITTEN LAW Custom of local inhabitants in Malaysia are also a source of law Customs relating to family law, ie. Mariage, divorce, and inheritance are given legal force by the courts in Malaysia 36 37 Muslim Law/ Syariah Law UNWRITTEN LAW Muslim Law which is applicable only to Muslims and is administered by a separate court system, the Syariah Courts. Syariah Court is the court which enforces the Islamic law relating to marriage, divorce and family matters. It is bases on Quran and Hadith, Fatwa and Ijma Ulama. The Federal Constitution provides that the States have the power to administer Muslim Law. The State legislature has authority over the constitution, organization and procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to persons professing the religion of Islam. Muslim law applies to Muslims only and does not apply to non-Muslims. 38 39