SHORT NOTE CEM583

TOPIC 1: PRINCIPLES OF LAW

DEFINITION OF LAW

i. Curzon- The written and unwritten body of rules largely derived from custom and formal
enactment
ii. John Austin- A command set by Superior Being to an Inferior Being and enforced by sanctions
iii. System of rules that people are supposed to follow in a society or a country

CLASSIFICATION OF LAW
1. Public law - regulates the relationship between the citizen and the state
Type of Public Law
a. Constitutional Law
-Defines the structure of government and the rights of individuals under that government.
-Used to create laws on how different levels of governments can act and on human rights

b. Administrative Law
-regulates the duties and exercise of powers by administrative authorities
-used by ordinary citizens who want to challenge decisions made by governments

c. Criminal Law
-concerns those acts or omissions which are offences against the State
-to prosecute and punish people who break laws

2. Private Law/Civil Law

-regulates the relationships between individuals.
-It includes contract, tort, trust, land, company, partnership, agency and commercial law.

Type of Private Law

a. Contract law -sets rules on agreements to buy and sell items and services

b. Property Law -states the rights and obligations when buy, sell, or rent homes and buildings

c. Trust Law- sets out the rules for money that is put into an investment, such as pension funds

d. Tort Law -the breach of a legal duty which causes compensable injury or loss to person, property,
or rights
 Categories of Tort Law:

1) Negligent torts - Encompass harm done through the failure of a reasonable standard of
care. Example: Accidents.

2) intentional torts - Harms done intentionally by the willful misconduct of another, such
as assault, fraud and theft.

3) strict liability – Not focusing on culprit. Instead, focuses on the act itself:

-if someone commits a certain act, then that person is responsible for the damages
from that act regardless of the level of care exercised or their intentions. Example:
Assault, trespass, produce liability, fraud, conspiracy)

SOURCES OF LAW

1) Federal Constitution
2) 13 Constitution of the States
3) Federal laws made by Parliament
4) State laws made by State Assemblies
5) Federal and state subsidiary legislation
6) Islamic law
7) English Law suitable to local circumstance

RULE OF LAW- the law that says that Government can only legally use its power in the way the government
and the people agree

 limits the powers a Government has, as agreed in a country's constitution

 prevents dictatorship and protects the rights of the people.
 When leaders enforce the legal code honestly, even on themselves and their friends, this is an
example of the rule of law being followed
 Legitimately exercise only in accordance with written, publicly disclosed laws adopted and
enforced accordance established procedural steps
TOPIC 2A: THE GOVERNMENT STRUCTURE AND SYSTEM

Federal Government structure

1. YDPA

THE RIGHTS AND ROLE OF YDPA

a. EXECUTIVE AUTHORITY

-YDPA must act in accordance with the advice of cabinet. However, some situation he may act in his
personal discretion:

 The appointment of PM
 The withholding of consent to a request for a dissolution of Parliament.
 Call for a meeting for a conference of rulers

3 important functions vested in the YDPA:

 supreme commander of armed forces.

 has power to grant pardons, reprieves and in respect of all criminal offences committed
 has the power to appoint certain members of the Dewan Negara (senate).

b. LEGISLATIVE POWER
-He has 30 days to assent the bill passed by Parliament otherwise on expiry of the 30 days period,
it becomes law

c. THE PREROGATIVE (exclusive right)

- the power to award honors and other ceremonial powers

COUNCIL OF RULERS

Important roles of council of rulers

I. To safeguard the interests and status of Malay rulers:

-selection of the YDPA and the Deputy YDPA
-Approves or disapproves any act, practice or religious ceremony

II. Administrative affairs of the country.

-Approves or disapproves any law and gives advice on whatever appointment that, under the
Constitution, requires the approval of, or consultations with the Council of Rulers.
-Appoints members of the Special Courts
-deliberate matters pertaining to national policies
2. The Legislative Authority (Perundangan)
 Power to create the laws and make it applicable to the country
 have the authority to control government expenditure
 Focus on public opinion

The separation of power at federal, state & concurrent levels

FEDERAL LIST STATE LIST CONCURRENT LIST

External Affair Muslim Law Social welfare
Defense Land Scholarship
Internal Security Agriculture & Forestry Protection of wildlife
Civil & Criminal Law Revering Fishing Town & country planning
Citizenship Local Government Drainage & venery
Finance Library, Museums Housing
Commerce & Industry Culture & Sport
Shipping
Communication &
transportation
Education
Health
Labors
Fishery
Tourism

3. The Executive Authority

 Power to govern the country

 Authority power is vested in the Yang di-Pertuan Agong
 The body which exercise this power is the Cabinet
 Each Minister must be approved by the King.

4. Judicial Authority (Kehakiman)

 the area of justice lies with the courts.

4 big areas of jurisdiction:

 The power to interpret the Constitution

 The power to interpret law
 The power to proclaim a written Federal or State law invalid.
 The power to declare a government action as invalid in the eyes of the law.
TOPIC 2B: Malaysia Legal System

SUPERIOR COURT

Consist of:

1) Federal Court
 the highest judicial authority in the country. Its decision binds all the courts below.
 hears appeals from the Court of Appeal
 All its members are appointed by the Yang di-Pertuan Agong
 Every proceeding is heard and disposed off by three judges or a larger uneven number

2) Court of Appeal
 It consists of the President of the Court of Appeal and fifteen Court of Appeal judges.
 members are appointed by the Yang di-Pertuan Agong
 the final court of appeal on matters decided by the High Court in its appellate or
revisionary jurisdiction.

3) Special Court
 any preceding against the Yang di-Pertuan Agong or the Ruler of a State
 has exclusive jurisdiction to try all offenses committed in the Federation by the Yang di-
Pertuan Agong or the Ruler of a State and all civil cases by or against the Yang di-
Pertuan Agong or the Ruler of a State.

4) High Court
 have unlimited jurisdiction in all criminal matters other than matters involving Islamic
law

Division Under High Court

a) Criminal Division: hears cases in the exercise of its original on any criminal matter from
the subordinate courts.

b) Civil Division: hears among others, actions on foreclosure, tort and contracts for
services.

c) Commercial Division: hears among others, insurance, companies winding-up, agency,

banking, intellectual property and Specific Relief Act cases.

d) The Appellate and Special Powers Division: hears appeals from the subordinate courts,
cases under the Legal Profession Act 1976

e) Family Division: hearing matrimonial (marital) cases under the Law Reform (Marriage
and Divorce) Act 1976
DIFFERENT BETWEEN CRIMINAL CASE AND CIVIL CASE

 Different in terms of their punishment. Criminal cases will have jail time as a potential
punishment, whereas civil cases generally only result in monetary damages.
 The standard of proof is also very different. Crimes must generally be proved with a solid proved
and evidence, whereas civil cases are proved by lower standards of proof. The difference in
standards exists because civil liability is considered less blameworthy and because the
punishments are less severe.
 Criminal cases almost always allow for a trial by jury. Civil cases do allow juries in some instances,
but many civil cases will be decided by a judge.
 A defendant in a criminal case is entitled to an attorney, and if he or she can't afford one, the
state must provide an attorney. A defendant in a civil case is not given an attorney and must pay
for one, or else defend him or herself.
 The protections afforded to defendants under criminal law are considerable. Many of these well-
known protections are not available to a defendant in a civil case.

SUBORBINATE COURT

1) Section Court-to hear both criminal and civil cases and is presided by a Sessions Court Judge.

a) Criminal Jurisdiction
 all offences other than offences punishable with death
 may pass any sentence including natural life sentence.
b) Civil Jurisdiction
 deal with all claims more than RM25,000-00 up to the value of RM250,000-00
 Has unlimited jurisdiction to hear matters involving motor vehicle accidents, disputes
between landlord and tenant

2) Magistrate Court
a) Criminal Jurisdiction
 Has jurisdiction to try all offences for which the maximum sentence does not exceed ten
years
 may not impose a term of imprisonment exceeding five years.
b) Civil Jurisdiction
 hear all actions of a civil nature where the amount matter does not exceed RM25,000-
00.
 Where the amount claimed does not exceed RM5,000-00, you may wish to file your
claim in the small claims division of the Magistrates Court

3) Juvenile Court
- If a child is found guilty of an offence, he shall not be imprisoned, may either be sent to an
approved school or released on bail
- For capital offences, the child shall be detained in prison at the pleasure of the Ruler.
TOPIC 4A: CONSTRUCTION SAFETY

Responsibility of the Employer

 Employ a safety and health officer

 Formulate a Policy and Safe Operating Procedures (SOP)
 Establish a safety and health committee

-Requirement to employ a Safety and Health Officer at the workplace for projects of over RM20 million
whether for works of:

A. Building operations
B. Engineering construction

Hazards on Site

-Heat stress - Noise

-Dust exposure -Mechanical hazards

-Electrical hazards -Chemicals

-Working at heights -Confined space

Type of Accidents

1. Falling from height 2. Hit by falling object

Cause of fall: Causes of accident:

*No fencing *poor housekeeping

*No provision of safety harness *No overhead protection

*Faulty design of structures/ladders *No installation of safety net

*Installation of equipment by incompetent persons *No toe-board on work platform

3. Buried under falling earth/structure 4. Electric shock

5. Hit by vehicle 6. Contact with moving machinery

Safety and Health Management

Strategies

 Establish a Safety and Health Committee

 Identify hazards at the workplace
 Conduct risk assessment
 Plan and implement safety and health measures

Employer Control measures

 Formulate a Safety and Health Policy

 Employ a Safety and Health Officer or site safety supervisor
 Formulate and enforce safety and health rules at the workplace.
 Increase supervision on high risk activities
 Investigate all accidents and dangerous occurrences
 Conduct workplace inspections
 Display safety warning signages at appropriate locations
 Provide safety and health training for all workers
 Provide PPE for all workers and ensure proper use
 Prepare safe work procedures for all activities
 Provide suitable and safe equipment for all work activities
TOPIC 4B: Occupational Safety and Health Act 1994 (OSHA)

Contents in OSHA 1994

 APPOINTMENT OF OFFICERS
 GENERAL DUTIES OF EMPLOYERS AND SELF-EMPLOYED PERSONS
 INDUSTRY CODES OF PRACTICE
 GENERAL DUTIES OF EMPLOYEES
 SAFETY AND HEALTH ORGANISATIONS
 REGULATIONS

The list of regulations under OSHA:

 Employers' Safety and Health General Policy Statements

 Control of Industry Major Accident Hazards
 Safety and Health Committee
 Safety and Health Officer
 Labeling of Hazardous Chemicals

Objectives of the Act

 To ensure the safety, health and welfare of persons at work.

 To protect person at a place of work other than persons at work.
 To promote an occupational environment for persons at work
 To provide the means towards a system of regulations and approved industry codes of practice.

Factory and Machinery Act 1967

-only covers less than 20 percent (manufacturing, quarrying and construction industries)

Regulations under FMA:

- Leads
- Asbestos
- Mineral Dust
- Noise Exposure

Objective of FMA

 focus on control of factories & machinery

 registration & inspection of machines
 less provision for health
General Duties of Employers and Self-Employed Persons

1) Ensure the safety, health and welfare of all workers while at work. It includes:

a) Planning and maintenance of plants and work system

b) Planning for the use, handling, storage and transportation of the plant and materials

c) Provision of information, instruction, training and supervision.

d) Provide access routes to and from work areas.

2) Formulate a written Safety and Health Policy

3) Conduct operations without endangering the safety of others

4) Provide information to others on business operations.

Importance of a Safety and Health Policy

 Long term objective

 Continuous commitment at all levels of management.
 Delegation of task at lower management levels.

Safety and Health Policy:

1. Statement of intent
 Safety priority in all daily work activities.
 Safety integrated into all daily work activities.
 Safety of workers and others are of utmost priority.
 The company will do anything in its power to avoid and prevent accidents
2. Organization
3. Arrangements

General Duties of Employees

 Ensure personal safety and that of others.

 Cooperate with employer and others regarding safety
 Properly wear PPE that are provided by employer.
 Comply and obey to any safety instructions or procedures instituted by employer concerning
safety
Safety and Health Officer

 Apply to specific industries.

 Employ a competent person
 Specific responsibilities to ensure compliance to the Act and promotion of safe work.
 Possess such qualification and received training.

Safety and Health Committee- established when there are 40 or more workers.

-Instructed by Director General

Function of Safety and Health Committee

 review all safety and health measures that have been taken.
 Investigate issues concerning occupational safety and health and bring to attention of employer.
TOPIC 4C: INTRODUCTION TO NIOSH, CIDB & DOSH

Role of NIOSH Malaysia

 Entrusted to promote a Safe & Healthy Workplace and Workforce in Malaysia.

 Committed to assist Employers and Employees to manage Occupational Safety and in their
organization effectively.
 Dedicated to providing Quality Solutions for OSH issues a professional manner

Functions of NIOSH Malaysia

 To contribute towards efforts in upgrading occupational safety and health through developing
curriculum and training programmes
 To assist industry to solve problems relating to occupational safety and health.
 To assist those who are responsible for occupational safety and health with the latest information.
 To conduct short-term and long-term research in occupational safety and health related areas
 To disseminate information on research findings and to become the center of reference

Services provided by NIOSH

 Training
- To ensure the success of any OSH programme at the workplace
- To understand the workings of safety management systems and the legal compliance required.
- understand their own responsibilities and the necessary actions to be taken towards upgrading
safety and health
 Examination
 NIOSH R&D
 Facilities
 Consultation

Function of CIDB

 To advise and make recommendations to the Federal Government and the State Government
 To provide consultancy and advisory services
 To promote quality assurance in the construction industry;
 To encourage the standardization and improvement of construction techniques and materials.
 To promote quality assurance in the construction industry;
 To encourage the standardization and improvement of construction techniques and materials.

Objective of DOSH

 To prepare and preserve a workplace with a safe and healthy working system;
 To provide basic welfare facilities to all workers
 To revise and improve on this policy whenever necessary
 To investigate all accidents and to have action taken
 To ensure staffs are provided with the relevant information, instruction, training and supervision
TOPIC 6A: CONTRACT LAW

Sources of the Contract Law

1. Written Law 2. Unwritten Law

 Contract Act 1950 Judicial Decision
 Civil Law Act 1956 -Case Law
 Sale of Goods Act 1957 -Judicial precedent
 Specific Relief Act 1950
 Insurance Act 1996

Categories of the Contract Law

1. Valid Contracts - if a contract has all the required elements, it is valid and enforceable in a court
of law.

2. Void Contracts - is not a contract and has no effect in a court of law and cannot be enforced in a
court of law. Mostly missing one or all the essential elements needed for a valid contract.
Examples:
 Contracts involving an illegal subject matter
 Contracts entered by someone not mentally competent
 Contracts that are against public policy because they are too unfair.

3. Voidable Contracts - a contract which may appear to be valid and has all of the necessary
elements to be enforceable but has some type of flaw which could cause one or both of the parties
to void the contract.
Examples:
 Contracts entered when one party was a minor.
 Contracts where one party was forced or tricked into entering it.
 Contracts entered when one party was incapacitated

4. Unenforceable Contracts - a contract which cannot be enforced in a court of law. This could
happen because the terms of the contract are ambiguous, if one party has a voidable contract or
if the Statute of Limitations has expired.
Elements of a Contract

1. A clear or firm offer or proposal

- intimation of willingness by the offerer to enter into a legally binding contract.
2. An acceptance of the offer/proposal
3. Intention to create legal relations
- both parties must show an intention to enter into a legally binding agreement
-in express form - the acceptance is made in words, i.e. oral or written
-implied form – the acceptance is made other than in words e.g. by conduct
4. Consideration
- each party must contribute something in reciprocation of the other’s promise
-The contract must have some legal value for both party
5. Consent
- the parties must contract with free consent, i.e. consent must not be obtained by coercion,
fraud, misrepresentation.
6. Legality
-the contract must be formed within the boundaries of the law
TOPIC 6B: THE CONTRUCTION CONTRACT

Types of contract:

 PAM Contracts
 CIDB Contract
 IEM Contracts
 PWD(JKR) Contracts

PWD/JKR CONTRACT PAM CONTRACT

 Standard form of contract -Standard form of contract for private

for government and public sector and traditional general contract
 covered all building and engineering work - covered building work only

CONSTRUCTION INDUSTRY PAYMENT AND ADJUDICATION ACT (CIPAA)

Purpose of CIPAA:

 To Facilitate Regular and Timely Payment

 To Provide a Mechanism for Speedy Dispute Resolution Through Adjudication
 To Provide Remedies for the Recovery of Payment in the Construction Industry

Scope of the CIPAA:

 all construction contracts made in writing

 local and international construction contracts
 does not apply for any construction work of any building which is less than four storeys high and
which is wholly intended for his occupation

Categories of Contracts

1. Construction Work Contract- the construction, maintenance, renewal, removal, demolition of

buildings and or structures, civil engineering works
2. Construction Consultancy Contract- Architectural work, Engineering, Surveying, Exterior and
interior decoration, Landscaping
Remedies provided under CIPAA

 Right to suspend or reduce the rate of progress of the construction work provided notice is
given.
 Right to request for direct payment from the principal of the party owing the moneys

Master Title- developer will be the land holders in Master Title.

-Developer has the right to control all the transactions of the land.

-After the units are sold, developer must transfer the ownership of land to the house owner

Strata Title- only happen in Sub-Divided Property like condominium, apartment, flat.

-there are a few houses on the same land but with different lease.

Individual Title- all the landed property like terrace house, bungalow will have separate land holders.

-some of landed property which share the facilities is consider as Strata Title.
TOPIC 7: BREACH OF CONTRACT, REMEDIES, AND DAMAGES

Breach is- Non-performance

-Failure to perform an absolute duty required under the contract.

Types of Performance

1. Complete Performance- contractor discharged without summon) (no breaching issue)

2. Substantial Performance-subjected to legal remedy, e.g. damages. The non-breaching party may
recover damages caused by the breach.
3. Inferior Performance- subjected to equitable remedy, e.g. injunction. The non-breaching party
may either:
1) Rescind the contract and recover restitution, or
2) Affirm the contract and recover damages.

Breach of Contract occur when:

 Any party to the contract fails to perform his part of the contract
 Any party to the contract makes it impossible for the perform his obligation under the contract

Types of Breach of Contract

1. Anticipatory breach of contract

A party declares his intention of not performing the contract before the performance is due
2. Actual breach
one party refuses to form his side of the bargain on the due date or performs incompletely.

Timing of breach

a. before performance is due (Anticipatory breach)- promisor refusing to perform or disabling

himself from performing his promise
b. at the time performance is due (Actual breach)- promisor fails to carry out the performance
c. during performance of the contract (Actual breach)- the promisor has started but fails to perform