CHAPTER 1 INTRODUCTION TO LAW IN MALAYSIA.pdf

INTRODUCTION TO LAW IN MALAYSIA ISH300 ACADEMY OF CONTEMPORARY ISLAMIC STUDIES UITM CAWANGAN NEGERI SEMBILAN Learning outcome  Students will be able to:  Understand the concept and basic Malaysian Halal Laws  Identify the implementation of international halal Certificat...

INTRODUCTION TO LAW IN MALAYSIA ISH300 ACADEMY OF CONTEMPORARY ISLAMIC STUDIES UITM CAWANGAN NEGERI SEMBILAN Learning outcome  Students will be able to:  Understand the concept and basic Malaysian Halal Laws  Identify the implementation of international halal Certification  Analyses the application of Malaysia Halal Laws DEFINITION OF LAW What is Law? ⌖ No agreed definition of law. ⌖ Some even say it can never be defined… ⌖ Law is a set of rules, regulations necessary to govern people in a community, state or nation. What is Law ? “Law is generally the procedures and the rules of conduct or act which one uses one’s every sense in order to harmonize the convenient of a oneself and or another”.  Defintion of Law Oxford English Dictionary (Lee Mei Pheng ,2005) ‘the body of enacted or customary rules recognised by a community as binding. Sir John Salmond ,Jurisprudence (Lee Mei Pheng ,2005) ‘the body of principles recognised and applied by the State in the administration of justice law consists of the rules recognised and acted on by courts of justice. Law is the body of official rules and regulation, generally found in constitution, legislation, judicial opinions and used it to govern a society and to control the behaviour or its members, so law is a mechanism of social control.  To Attain Justic e IMPORTANCES To To OF HAVING Encoura ge The Protect LAW AND Doing Of People RULES IN What Is SOCIETY Right To Regula te Society Generally, LAW is… A set of rules enforceable by authority or custom; or by the state which the parliament, the government, the king, the monarch or the court has made which everyone has to follow or otherwise they have to face sanctions or penalty as consequences of its breach. JURIST VIEW LAW AS…  St. Thomas Aquinas (Natural Law Jurist):  “Law is a rule and measure of acts, whereby man is induced to act or to restrain from acting…now the rule and measure of human acts is the reason, which is the first principle of human acts…consequently it follows that;  “Law is something pertaining to reason.” 8  9  John Austin (Positivist): “Law is a command set by the sovereign or superior being to an inferior being, enforced by sanctions.”  10  Roscoe Pound (Sociologist):  “Law is an instrument of social engineering; to maximize the fulfillment of interest of the community, provide smooth running of the machinery of society.”  11  H.L.A Hart: “Law is a system of rules specifically a systematic union at the center of primary and secondary rules.”  12  John-Salmond:  “The body of principles recognised and applied by the state in the administration of justice”. SEVERAL MEANINGS OF LAW 13 1. rule of law 2. legislation 3. legal system of a nation; or 4. legal process( procedural aspect such as adjudication or law making process)  Why do people obey the ‘Law’? ⌖ People obey law out of fear of punishment. ⌖ Felt bound to obey because of sanctions ⌖ To arrange their affairs according to the law. How do the ‘Law’ develops in a society? ⌖ Develops with the society's need and the influence of history. ⌖ Influenced by religion, logic, sociology, philosophy, economics, trade, politics, industry and inventions. FUNCTIONS OF LAW An instrument to foster social order Resolves Facilitates Constitutes, Communicates, conflict co- regulates & regulates & operative distributes reinforces social action power values/behaviour FUNCTIONS OF LAW  Resolves conflict Provides a rationalized & conclusive settlement to disputes Provides a formalized mechanism for settling disputes by using the most typical of all legal institutions that is the court Other mechanism for resolving conflicts includes e.g. arbitration, mediation, conciliation also recognized by law Maintains public order by regulating human's behaviour through suppression of deviant behaviour.  FUNCTIONS OF LAW  Facilitates co-operative action Recognizes certain basic underlying interests and provide a framework of rules for giving effect to them. Provides systems/procedures for transfer of ownership in land, inheritance of property & formation of groups for peaceful purposes Deals with the distribution of wealth & entitlement in society, that is, allocating things which people wants & values. Makes certain forms of wealth possible, which cannot exists without law e.g copyright, shares (intangible wealth).  Constitutes,regulates & distributes power Power in society is not equally distributed. Law, hence functions to distribute power. Provides for succession to power and defines who has the right to exercise what kind of power in society. Specify who these officials are and what these powers are. Prescribes the structures of the authority through which government is carried out Specify powers in the relationship between private citizens & groups e.g. parent and child, property owners and the rights of individuals to set up organizations in society.  Communicates, regulates & reinforces social values/behaviour Law can also be made as well. Hence, also functions as a mechanism for changing and improving the human's behaviour. By changing odd rules or introducing quite new ones especially through legislation. Law has always enforced some morality. Matters formerly left to the individual conscience has been made the subject of state control through law. Law reserved the "status quo“, & at the same time introduces deliberate change in our social arrangement. Law thus, reconciles btw stability & change. CLASSIFICATIONS OF LAW  PUBLIC LAW  governs the relationship between individuals and the State.  May be divided into: 1. Constitutional Law 2. Criminal Law 3. Administrative Law 1. Constitutional Law  Constitutional law lays down the rights of individuals in the State. It deals with questions such as supremacy of Parliament and rights of citizens. 2. Criminal Law  Criminal law codifies the various offences committed by individuals against the State. Thus, criminal law imposes on individuals the obligation not to commit crimes. CLASSIFICATIONS OF LAW  INTERNATIONAL LAW  Body of law composing of principles & rules of conduct which states commonly observed in their relations to each other.  May be divided into 2 parts: 1. Public International Law  The law about the mutual relationship between the states. It is also concerned with international organizations, e.g. United Nations and its associated bodies. International law consists of the general principles of law, customs, conventions or treaties recognized by civilized nations. 2. Private international law (i.e. conflict of laws).  Itconcerns the difficulties, which arise when legal disputes occur between parties from different nations. In order to determine which is the correct system to apply, the court will consult the rules of private international law. CLASSIFICATIONS OF LAW  PRIVATE LAW  Concerned with matters that affect the rights and duties of individuals amongst themselves.  Under private law, legal action is normally undertaken at the instance or initiative of the individual. 1. The law of contract encompasses all sorts of commercial and non- commercial transaction. It deals with esp. commercial promises. It is designed to enforce promises, by ordering people to carry them out or to compensate the other party if they failed to do so. 2. Tort is based on an obligation imposed by law. A tort is a civil wrong. It is the breach of a general duty, which is imposed by the law. Any person whose legal right is infringed may sue the wrongdoer. E.g. of 'tortious act': assault, battery, interfering goods, defamation (libel and slander). 3. A trust is an equitable obligation binding a person (a trustee) to deal with property over, which he has control (trust property) for the benefit of person (beneficiary).  Other classification includes:  Civil vs Criminal law  God-made Law vs Man-made law  Substantive vs Procedural Law  All the above classification applies to the various classification stated before. Islamic scholars  Muslim jurist Muhammad ibn Idris ash-Shafi`i (767–820), who codified the basic principles of Islamic jurisprudence in his book ar-Risālah.  The book details the four roots of law (Qur'an, Sunnah, ijma, and qiyas) while specifying that the primary Islamic texts (the Qur'an and the hadith) must be understood according to objective rules of interpretation derived from scientific study of the Arabic language.  According to scholar Noah Feldman, under many Muslim caliphate states and later states ruled by sultans, the Ulama were regarded as the guardians of Islamic law and prevented the Caliph from dictating legal results, with the ruler and ulama forming a sort of "separation of powers" in government.  Laws were decided based on the Ijma (consensus) of the Ummah (community), which was most often represented by the legal scholars.  Malaysian Perspective  In a society with certain structure it is definite that different individuals will have different opinions which have to be coordinated by law. Laws is a type of glue stick that holds society together, so that they can live peacefully.  For example, law of criminal helps to safeguard the personal property and lives. Law of contract helps to ensure people keep on their promises  Law protects basic individual rights and freedom such as liberty, equality and freedom of speech. It prevents individuals in powerful position from taking an unfair advantage of other people.  Law ensures a safe and peaceful society, in which individual rights are preserved. Certain governments have cruel laws, where police and armies arrests and punishes people without a trial in the court. MALAYSIA LEGAL HISTORY ▪ Malaysia legal history has been determined for six hundred years ago ▪ Three major periods that responsible for current Malaysia system are Sultan Melaka, the spread of Islam and British colonial rule. ▪ The formal legal text of traditional Melaka consisted of the Undang-Undang Melaka (Laws of Melaka)and the Undang-Undang Laut Melaka  Adat Temenggung be the the source of law  Adat Temenggung’s punishment is more heavy than Adat Pepatih  If there is conflict between the customary law and Islamic law, the Islamic law will be applied/used  When Melaka fell into the hands of Portuguese and Dutch, the local people still practice the Islamic law and Malay custom