BL Chapter 1

All Rights Reserved Business Law
Oxford Fajar Sdn. Bhd. (008974-T) 2010

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CHAPTER 1
An Introduction to the
Concept of Law in Malaysia
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This chapter:
defines the concept of law in
Malaysia in relation to the state
and the Constitution
OBJECTIVES
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PREVIEW
What is Law?
Law in Relation to Justice
Law and Ethics
Rule of Law
Law, the State and the Constitution
- Law in Malaysia
- What is a State?
Classification of Law
- Public Law
- International Law
- Private Law
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LAW
is a means or device to regulate the economic and
social behaviour of society
aims to preserve the economic and social welfare of
our society
is needed to regulate and control the affairs of society
is a regulatory device providing the mechanism for
society to function through tools such as legislation
and case-law
guarantees our freedom, enables free enterprise and
provides a means to settle disputes amicably
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WHAT IS LAW?
It is a set of rules that regulates interactions that
people have with each other, and which sets
standards of conduct between individuals and
between individuals and the government and
which are enforceable through sanction.
To the layman, law is understood as being a
general rule of conduct.
The Oxford English Dictionary defines law as the
body of enacted or customary rules recognized by
a community as binding.

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Sir John Salmond in Jurisprudence, defines
law as:
the body of principles recognized and applied
by the State in the administration of justice
John Austin in The Province of Jurisprudence
Determined, describes law as a command set
by a superior being to an inferior being and
enforced by sanctions (punishments).
WHAT IS LAW? (cont.)
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the term law is defined both by Article 160(2) of
the Federal Constitution 1957 and Item (43C) of
section 2(1) of the Interpretation and General
Clauses Ordinance 1948 to include:
(a) the written law
(b) common law insofar as it is in operation in the
Federation or any part thereof
(c) any custom or usage having the force of law in
the Federation or in any part
WHAT IS LAW? (cont.)
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Law aims to maintain justice in society.
Justice is an abstract idea of right and wrong;
fairness and equality.
The aim of a given law is to encourage the doing
of what is right or just in a particular set of
circumstances.
Justice is what right-minded members of the
community (that is, those having the right spirit
within them) believe to be fair.
LAW IN RELATION TO JUSTICE
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Law attempts to represent what society
believes is right or fair.
However, in its application to a particular set
of circumstances, a law may not always
appear to be just.
LAW IN RELATION TO JUSTICE
(cont.)
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The purpose of law is to govern the conduct of all
members of society, whilst ethics guides individuals in
ascertaining the soundness of rules, and their impact
upon relationships.
Law and ethics, though of different concepts, are often
related.
Businesses often use legal standards in carrying out
their activities and in decision-making, businesses also
adopt codes of ethics or conduct.
LAW AND ETHICS
Ethics is about what is right and what ought to be,
not simply accepting what is.
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according to Dicey, the rule of law involves the
following three propositions:
1. No person must be punished except for a
breach of the law.
2. All persons are equal before the law
irrespective of status or position.
3. The rights or freedoms of citizens are
enforceable in the courts.
RULE OF LAW
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law in Malaysia, which consists of Peninsular
Malaysia, Sabah and Sarawak, is one political unit
but it is not governed by the same set of laws
attempts are made to achieve uniformity in the law
throughout Malaysia but this is not possible in all
areas of the law
2 links uniting the two parts of Malaysia:
the Parliament
the Federal Court
LAW, THE STATE AND THE
CONSTITUTION
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legal systems are administered almost entirely on
the basis of the political unit known as the State
for international purposes, Malaysia is one state
within Malaysia, however, there are thirteen states
each state has a government and has rules which
lay down who shall govern and how
Malaysia has a written constitution Federal
Constitution the supreme law of the Federation
WHAT IS A STATE?
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Article 4(1) of the Federal Constitution:
4. Supreme Law of Federation.
(1) This Constitution is the supreme law of the Federation
and any law passed after Independence Day which is
inconsistent with this Constitution shall, to the extent of
the inconsistency be void.
laws enacted by Parliament which are inconsistent with
the Federal Constitution may be declared void by the
courts
see R Rethana v The Government of Malaysia & Anor
c/f, Repco Holdings Bhd v Public Prosecutor

WHAT IS A STATE? (cont.)
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73. Extent of Federal and State Laws
In exercising the legislative powers conferred on it by
this Constitution:
(a) Parliament may make laws for the whole or any
part of the Federation and laws having effect outside
as well as within the Federation
(b) The legislature of a State may make laws for the
whole or any part of that State

The Federal Constitution confers legislative power to
the Federal Parliament and the State legislatures.
Article 73:

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parliament may make laws for the whole of Malaysia
Article 74:
Parliament may make laws with respect to any of the
matters enumerated in the Federal List or the
Concurrent List.
The Federal List:
1. External affairs
2. National defence
3. Internal security
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4. Civil and criminal law and procedure and the
administration of justice
5. Federal citizenship and naturalization; aliens
6. The machinery of government
7. Finance
8. Trade, commerce and industry
9. Shipping, navigation and fisheries
10. Communications and transport
11. Federal works and power
12. Surveys, inquiries and research

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13. Education
14. Medicine and health
15. Labour and social security
16. Welfare of the aborigines
17. Professional occupations
18. Holidays; standard of time
19. Unincorporated societies
20. Control of agricultural pests; etc

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21. Newspapers; publications; publishers; printing
and printing presses
22. Censorship
23. Theatres; cinemas; public amusements
24. Federal housing and improvement trusts
25. Co-operative societies
26. Prevention and extinguishment of fire, including
fire services and fire brigades

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The Concurrent List:
1. Social welfare, social services, protection of
women, children and young persons
2. Scholarships
3. Protection of wild animals and wild birds;
National Parks
4. Animal husbandry
5. Town and country planning
6. Vagrancy and itinerant hawkers
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7. Public health, sanitation and prevention of diseases
8. Drainage and irrigation
9. Rehabilitation of mining land and land which has
suffered soil erosion
10. Fire safety measures and fire precautions in the
construction and maintenance of buildings
matters enumerated in the Concurrent List may also
be the subject-matter of laws made by the state
legislatures
the State Legislature may also make laws with
respect to any of the matters in the State List

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The State List:
1. Islamic law and personal and family law of Muslims;
Malay customs; offences by Muslims; Syariah Courts
2. Land
3. Agriculture and forestry
4. Local government
5. Local services
6. State works and water

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7. Machinery of the State Government
8. State holidays
9. Offences against State Law
10. Inquiries for State purposes
11. Indemnity
12. Turtles and riverine fishing

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see Mamat bin Daud & Ors v Government of
Malaysia, Ketua Pengarah Jabatan Alam
Sekitar & Anor v Kajing Tubek & Ors and other
appeals
if any state law is inconsistent with a Federal
law, the Federal law shall prevail Article 75,
Federal Constitution
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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
State legislatures have the power to make laws
with respect to any matter not enumerated in
any of the Lists set out in the Ninth Schedule
and which are not a matter in respect of which
Parliament has power to make laws
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Major legal systems:
Civil law
Common law
SinoSoviet
Islamic
Hindu
Talmudic
CLASSIFICATIONS OF LAW
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in general, the legal systems of the world are classified
into 3 main types:
a) Civil law
b) Common law
c) Socialist law
the Malaysian legal system is a common law system
in Malaysia, law has been classified into 3 broad
divisions:
a) Public law
b) International law
c) Private law
CLASSIFICATIONS OF LAW
(cont.)
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law which governs the relationship between
individuals and the state
subdivided into two categories:
a) Constitutional law
b) Criminal law
constitutional law lays down the rights of
individuals in the state
criminal law codifies the various offences
committed by individuals against the State
PUBLIC LAW
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body of law which is composed for its greater part
of the principles and rules of conduct which
states feel themselves bound to observe, and
consequently commonly do observe, in their
relations with each other

subdivided into two categories:
Public international law
INTERNATIONAL LAW
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Private international law (conflict of laws)
A part of municipal law
Rules that guide a judge when the laws of more
than one country affect a case
two main sources of international law that affect
businesses:
a) Customary Rules of International Law
b) Treaties and Conventions

INTERNATIONAL LAW (cont.)
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matters that affect the rights and duties of
individuals amongst themselves
intended to give compensation to persons
injured, to enable property to be recovered from
wrongdoers, and to enforce obligations
(contracts and trusts)
covers:
Contract
Tort
Trust

PRIVATE LAW (CIVIL LAW)
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Contract
based on agreement
essential elements in a contract:
PRIVATE LAW (CIVIL LAW) (cont.)
1. Offer
2. Acceptance
3. Capacity to contract
4. No mistake, misrepresentation or
undue influence
5. Object must be lawful
6. Intention to enter into legal relations
7. Consideration
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Tort
based on an obligation imposed by law
a civil wrong
the breach of a general duty which is imposed
by the law (and not agreed between the
parties)
remediable by a civil action for unliquidated
damages
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any person whose legal right is infringed
may sue that wrongdoer
essential elements of a tort:
there must be an act or omission done
intentionally or negligently
there must be damage caused by such
act or omission which is not remote

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Trust
an equitable obligation binding a person (a
trustee) to deal with property over which he
has control (trust property) for the benefit of
persons (beneficiaries or cestui que trust) of
whom he may himself be one and any one of
the beneficiaries may enforce the obligation
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REVIEW
Explanation and Definition of Law
Law in Relation to Justice
Law and Ethics
Rule of Law
Law, the State and the Constitution
- Law in Malaysia
- Concept of a State
Classification of Law
- Public Law
- International Law
- Private Law

BL Chapter 1

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All Rights Reserved Business Law

Oxford Fajar Sdn. Bhd. (008974-T) 2010

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