Law

1) What is law?
a) The body of enacted or customary rules recognized by a community as binding.
b) Law may be defined as a body of rules and regulations which are developed and enforced by
government to deal with crime, business arrangements and social relationships.
c) Law is administrated through court system which judges hear disputes between parties
and apply set of rules to provide a fair outcome.
d) Law generally the procedure and the rules of conduct which one uses one’s every
senses in order to harmonize the convenient of oneself and another.

2) Function of law,
a) To attain justice
b) To encourage of doing what is right
c) To regulate and control the conduct of people
d) To protect and preserve safety of society
e) To punish the guilty with aims of retribution
f) To strike a true balance in the scale of justice

Categories of law
1) Public law

Constitutional& administrative Criminal

Describe the rights of individuals under the Systemise the law against criminal
government
Regulates the duties and exercise of powers Public prosecutors will seek punishment for
by administrative authorities inflicted crimes in state level
Deals with matters such as the supremacy of There must be a “wrongful act” and a “guilty
parliament and the rights of citizens mind” in order to test the crime offences
Include the areas dealing with state and Ex. Criminal breach of trust
federal powers
2) Private law

Contract Tort
Based on the agreement between two or more No agreement between parties for claims
parties against the civil wrong or breach of duty
Must meet all essential elements to form a The act must be wronged and must prove
contract (offer, acceptance) required elements (duty of care, breach of duty
of care)
Written Law
Federal constitution
1) Constitution is the fundamental law of state/ nation.

2) Constitution is the supreme law of federation.

3) Any law that pass after Merdeka which are inconsistent with constitution will be void.

4) Constitution can be amended by,

a) Passing federal law
b) Dewan Rakyat and Dewan Negara requires absolute majority of 2/3.

5) Yang di-Pertuan Agong,

a) federal head of state of Malaysia.
b) He reigns but not rule
c) Elected by conference of rulers
d) 5-year rotation
e) Required to exercise his executive powers on advice of cabinets
f) Head of state

6) Every state (state government) has own government and written constitution.

7) Prime minister = head of government

8) Chief ministers = head of state government

9) In exercising the legislative powers coffered on it by this constitution:

a) Parliament may make law for the whole/ any part of federation and laws having
effect outside as well as within the federation.
b) The legislature of a state may make laws for the whole/ any part of state.

State constitution
Legislation
1) Parliament,
a) Law made by parliament known as act of parliament.
b) Have power enact/ make law for whole federation/ any part.

2) Duty of legislature,
a) Amend constitution
b) Approve new law
c) Repealing old & new law and verifying its progress

3) The parliament will exercise its power to make laws by passing bills in both houses
of parliament,
a) Senate (Dewan Negara)
b) House of representatives (Dewan Rakyat)

4) A bill may originate in either of the house.

5) The house which a bill originated, shall send it to the other house once bill is passed.

6) Bill goes through several stages of “reading” in both houses.

7) Process of making a new law,

a) Drafting bill – after the proposal approved by cabinet

b) First reading,
i) Only long title will be read
ii) Happen when the minister will introduce the bill in dewan rakyat
iii) No debate is allowed
iv) The minister will announce orally the expected date of second reading
v) The text of the bill must be printed out and circulated to every member in the house
before second reading.

c) Second reading,
i) Allow to debate and voting
ii) Content of bill discussed and debated among all the members of the house
iii) Bill pass to committee stage if majority member favour of it
iv) If majority vote against the bill, it will be read for second time and no further action
will be taken.

d) Committee stage,
i) They will examine the bill
ii) Committee can be selected/ committee of whole house
iii) Amendment will be carried out if necessary

e) Third reading,
i) For further “read for the third time and do pass”. This is confined the contents of the
bill and no amendments may be moved.
ii) A bill passed by one house can be amended by the other house.
iii) If both house unable to agree on amendments then no further action will be taken on
the bill.
 f) Royal assent,
i) A bill secures the passage through both houses is presented to Yang di-Pertuan Agong.
ii) He will give royal assent in form of public seal within 30 days
iii) The bill become law in the expiration of 30 days.

8) However, no laws shall come into force until it has been gazetted/ published in the
gazette under the article 66(5) of federal constitution.

9) Can a bill become law without royal assent?

a) Yes
b) National security council (NSC) did not receive royal assent
c) It passed by dewan rakyat and negara
d) The conference of rulers wanted some provisions of the bill to be refined
e) The bill become law after 30 days
f) NSC became law on 1 august 2016

Subsidiary legislation
1) Any proclamation, rule, regulation made under any act, enactment and having legislative
effect.

2) Known as delegated legislation.

3) Made by persons/ authorities outside parliament.

4) Reasons to have this,

a) The legislature has insufficient time to enact the legislation details
b) Many modern legislations involve technical matters therefore experts must be referred to.
c) Persons/ bodies where powers have been delegated to them will have the authority to
make the changes.
d) When the laws need to be made or amended quickly.

The government system

1) Legislative, make law.
2) Executive, administers law
3) Judiciary, interprets law

Legislative
1) legislative enact law so administration could run smoothly.
2) Cannot interfere to the executive administration
3) Law will be enacted in accordance with the interest of the citizen
4) Parliament will be the place where law enacted.
Unwritten Law
1) Unwritten law constitutes that part of the law that is not recognized as “written law”.

English Law
1) With the absence of Malaysian law on particular subjects, English law is applied on to fill
the missing part in Malaysian legal system.

2) Only English law that is suited to local circumstances could be applied.

3) Consist two part,

a) Common law
b) Equity,
i) Body of law
ii) To aid, supplement and correct the common law
iii) Concept of “justice” and “fairness”
iv) Developed after many conflicts cannot be redressed through common law
v) When there is conflicts between the common law and equity law, rules of equity shall
prevail.

Judicial decision
1) Judicial decisions is the law which is created by decisions of case law in courts.

2) Judicial precedent is the past judicial decision in similar situation.

3) Doctrine of binding judicial precedent is the decision that a judge make based on look back
the past cases.

4) A few situations where the court may not apply the earlier precedent,
a) The judge in superior court overruled the precedent decided by the lower courts
b) Precedent laid down by the lower court where the case is on appeal
c) The earlier precedent was arrived at per incuriam made in ignorance of a statute or
a binding precedent
d) There are material differences in facts between the case established the precedent with
the new one
5) Advantages and disadvantages,

Advantages Disadvantages
Uniformity - for all Rigidity - Once a rule is laid down, it is binding
Certainty - lawyers can advise on the probable Illogical - If judge do not wish to follow judicial
outcome precedents, judges may introduce illogically
Flexible - Rules base on facts Complexity - So many precedents causes hard
to find relevant precedents to follow
Save time - Already existing solutions Bulky - So many precedents and no one can
know them all
Save legal cost - Lesser disputes Slow development - Depends on slow litigation
systems
Customary law
1) Custom is a rule of conduct which in a given place and among given groups of persons has
been followed for an appreciable time.

2) Customs from local prohibitants,

a) Family law (Marriage, divorce)
b) Native customary law
c) Hindu and Chinese customs
d) Adat in malays

Parliamentary privileges
1) Freedom of speech and debate
a) No persons shall be liable in any court for anything said/ done

2) Immunity from civil/ criminal proceedings for anything done or said before the house
a) No member shall be arrest by reasons of anything which he may have brought by bill,
resolution, motion/ or have said before the house.

Doctrine of ultra vires

1) Ultra vires means beyond the power and invalid.
2) Ultra vires is an act done without authority.
3) For administrative power, it is ultra vires if,
a) It is authorized in substance
b) It is procedurally irregular/ breach of rules of justice
c) An act goes beyond the limits of power given

Litigation
1) The process of fighting in a case in a court.
2) Litigate means to take legal action.

Criminal law Civil law

Party taking action government Private party
Party who sue Public prosecutor Plaintiff
Legal action against Criminal defendant Civil defendant
punishment Defendant may found guilty, and If defendant is liable, plaintiff are
will receive punishment such as jail able to claims for damages
burden of proof Prosecutor must prove defendant The burden can shift to defendant
guilty to rebut the plaintiff’s evidence
Standard of proof The defendant is guilty beyond The defendant is more likely to be
reasonable doubt liable that not liable

Prima Facie Case

1) Once the plaintiff/ public prosecutor has adduced their evidence, the judge must decide if
there is a “prima facie” case.
2) “prima facie” is finding of whether the defendant is guilty or not.
3) Presumption that the defendant/ accused are innocent until proven to the contrary.
Mediation
1) Mediation is a voluntary process of settlement by the assistance of a third party.
2) Parties maintain full control of the workings and outcome.
3) Rules of mediation,
a) Disputing parties may submit to mediation at any time
i) Either before or during the court proceeding. The judges may also encourage parties
to mediation

b) Disputing parties may decide the terms of mediation

i) Parties may sign a mediation agreement with agreed terms.

c) The mediator shall have power to make decision

i) Mediator only play the role of facilitating communication, identifying their needs,
developing options among them for amicable solution.

d) All communications and admissions made under a mediation are strictly

without prejudice
i) It is not subject to discovery in evidence in any proceedings unless parties consented to
it.

Arbitration
1) A private and judicial determination of a dispute by an independent third party.
2) The arbitrator decides he outcome of the proceedings and the parties bound by the decision.
3) Arbitrator decide the dispute.
4) Arbitrators does not legally qualified but they must be independent and fair.
5) Parties are advice to appoint experienced arbitrator.

Adjudication
1) Is a process for the resolution of payment construction disputes.
2) Unpaid party only allowed to refer “payment” dispute not other claims like tort.
3) The non-paying party has to reply to the claim dispute,
a) They may accept that they owe the unpaid party the claimed amount and propose to
make payment to the unpaid party.
b) They may accept that they owe a part of the claimed amount and propose to make payment
of the said part to the unpaid party.
c) They may completely deny the claimed amount and state its defence to the claim.
d) They may opt to not reply to the payment claim within the 10 working days at all.