Business Law & Ethics

Dr. Jady @ Zaidi Hassim Faculty of Law, UKM jady@ukm.my / 03 89216361 / 019 3333238

Course Outline (7 weeks) Introduction To Malaysian Legal System Contract Sale of Goods Agency Insurance Employment Partnership Company

Scope of Discussion Today

Introduction to Law Classification of Law

Sources of Malaysian Law

Malaysian Legal System

1. INTRODUCTION TO LAW

Definition

(a) Regulation (b) Human Behaviour (c) Enforceability (d) Up to date (e) Justice and Equality Art. 160(2) Federal Constitution and Item 43C of s. 2(1) Interpretation and General Clauses Ordinance 1948 define law as: (a)Written law (b)Common law (c)Any custom or usage having the force of law

2. CLASSIFICATION OF LAW

Meaning of sources Historical sources Legal sources Finding of the sources

Religious belief Local customs Opinion of jurists Legal rules Paper rules Statutes Law reports Text books
Federal Constitution Parliament and State Assembly Rules, Regulations and Principles of English By-laws

SOURCES OF LAW

Sources of Malaysian Law (1) Written sources (2) Unwritten sources (3) Muslim law

Law Judicial Decisions Customs

3. SOURCES OF MALAYSIAN LAW

Written Sources 1) Federal Constitution 2) State Constitution 3) Federal Law 4) State Law 5) Subsidiary Law

1. Perlembagaan Persekutuan
Surinder Singh Kanda v Gov of

the Fed of Malaya (1962)

- FC prevails over any other laws

Articles:

2. State Constitutions- Perlembagaan Negeri

Administered by State Legislative Assembly (DUN) 8th Schedule of FC (State List) Matters: Ruler, the Executive Council, the Legislature, the Legislative Assembly, financial provisions, State employee Different provision for each State Royal Hierarchy order Inconsistencies, removed by Art. 71 of FC.

3. Substantive Legislations- Undang-undang Persekutuan

Drafted and passed by Parliament (Federal Level) Drafted and passed by ADUN (State Level) Act after Independence Ex: Contract Act 1950, Company Act 1965, Sale of Goods Act 1957 Ordinance before Independence Enactment for State Only Enakmen Tanah Rizab Melayu kelantan 1930; enakmen Undang-undang Pentadbiran Islam Selangor 1984.
ACTS

Contract Act 1950 (Amend. 2006)

4. Subsidiary Legislation-Undang-undang Subsidiari

Minister / ADUN or Municipal Council Federal Level / State Level depending on debate

presentation (Parliament / DUN)

Ex: Peraturan Perihal Dagangan (Harga Jualan murah) 1987;

Undang-undang kecil suruhanjaya Pulau Pinang 1957 Subsidiary legislation means any proclamation, rule, regulation, order, resolution, notice, rule of court, bylaw or other instrument made under or by virtue of any Ordinance and having legislative effect. It is subject to the approval of the Council, which may be given through either the positive procedure or the negative procedure.

UNWRITTEN SOURCES

Unwritten Sources (1)

1.English Law
Section 3 & 5 Civil Law Act 1956 Common Law and Equity Section 3 of the Civil Law Act 1956 provides that (1) save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia, the court shall (a) in West Malaysia apply the Common Law of England and the rules of Equity as administered in England on the 7th April 1956; (b) in Sabah, 1st December 1951; (c) in Sarawak, 12th December 1949 respectively. whether there is any written law pertaining to the subject matter. whether local circumstances and local inhabitants would permit its application. Commonwealth of Australia v Milford M Sdn Bhd (1990) the development of common law after 1956 may well be applicable in Malaysia.

2. Judicial Decisions- Keputusan Mahkamah (Malaysia)

Stare Decisis Doctrine Operate according to Court Hierarchy System 2 ways operation Vertical higher courts Horizontal - their own prior decisions / court of the same level (past or present) PP v Datuk Tan Cheng Swee (1980) / Mah Kah Yew v

PP (1971)
Followed the previous decision, no deviation of precedent of

StareConway v Rimmer (the reason for deciding) decisis (1968) doctrine of binding Deviation judicial precedent for justice Obiter dictum (remarks in passing judgement) not binding

higher court. Binding upon Ratio decidendi only and not Obiter Dicta Ratio decidendi

Unwritten Sources (2)

3. Customs Customs relating to family law marriage, divorce and inheritance Adat applies to Malay Adat perpatih - N.9 Adat Temenggong Hindu and Chinese customary law Native customary law for Sabah and Sarawak 4. Muslim Law Head of the Muslim religion in a state Sultan Penang, Malacca , Sabah & Sarawak, Federal Territories Yang Dipertua Negeri Court syariah Courts (now 5 tiers)

4. MALAYSIAN LEGAL SYSTEM

Hierarchy of Court (1)

Hierarchy of Court (2)

Mahkamah Khas Mahkamah Juvana Mahkamah Tentera Mahkamah

Perusahaan Mahkamah Anak Negeri Mahkamah Syariah