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Malaysian Legal System, :pen: COMMERCIAL LAW SEC 02 :pen: - Coggle Diagram

- - - - The Supreme Law :crown:
        
        other law can be void if inconsistent with Constitution
      - Jurisdiction of 14 states
      - Fundamental rights of individual
    - - Acts
      - Enactments
      - Ordinances
    - - a.k.a Delegated Legislation
      - Refers to rules and regulations enacted by an authority under power conferred on it by a statute
      - According to the Interpretation Act 1967, it is any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Ordinance, enactment or other lawful authority and having legislative effect
  - - - can be found in the
        
        Equity
        
        Just or fair
        
        Contains rules and principle as supplement to common law
        
        Remedy & recognized common law
        
        Statute
        
        Laws enacted by the Parliament
        
        A supplement to common law
        
        Common law
        
        Develop from judicial decision
        
        Established before statute were passes
      - In Malaysia it is based on Sections 3 and 5 of the Civil Law Act 1956
        
        Section 3 - General application of English law
        
        Section 3(1) in the absence of local legislation
        
        (a) In peninsular Malaysian the courts shall apply the common law of England & the rules of equity as administrated in England on the 7 of April 1956
        
        (b) The courts in Sabah and Sarawak shall enforce English common law and equity laws, as well as legislation of general application, as administered or in effect in England on December 1, 1951 and December 12, 1949, respectively.
        
        Limitations
        
        Absence of local statutes
        
        Suitability to the local circumstances
        
        Section 5- Application of English Commercial Law
        
        Section 5(1) In the absence of local laws, the rules of English commercial law to be implemented in Peninsular Malaysia (except the states of Penang and Malacca) as they stood on April 7, 1956.
        
        Section 5(2) provides that if a dispute or issue occurred or had to be resolved in England, the rules of English commercial law shall apply in the states of Penang, Malacca, Sabah, and Sarawak during the corresponding time, except local law exists.
    - - Decisions of the superior court judges constitute Malaysian Law by the use of the ‘doctrine of binding judicial precedent'
        
        'Doctorine of binding judicial precedent'
        
        follow decisions made by judges previously in other cases based on the same situations
        
        only decisions of the superior court judge form judicial precedent
        
        decisions of higher courts bind lower courts
        
        Types of 'precedent'
        
        Original Precedent
        
        decision made based on justice, equity and good conscience (new)
        
        Declaratory Precedent
        
        applies an existing rule of law without extending it (old)
        
        The hierarchy of the courts
        
        Federal Court decision exceptions
        
        when there are two contradict decision
        
        inconsistence with the House of Lords decision
        
        decision was given Per incuriam
        (wrong decision)
        
        Decisions of Commonwealth Countries
        
        not binding, only persuasive
    - - Administration of Islamic Law
        
        Islam under the federal constitution; Islam is the religion of federation, but other religion may also be practiced in peace and harmony.
        
        Administration of Muslim Law; (1) Hukum syarak is part of state list and administrated by states, (2) Ruler of a State as a Head of Religion for his state, and (3) YDPA is the Head of Muslim Law for Melaka, Penang, Sabah and Sarawak.
        
        Functions of Council of Religion; (1) Collection, administration and division of zakat and fitrah, (2) Making final ruling regarding fatwa, and (3) Appointing committee for religious matter.
      - Enforcement of Islamic Law
        
        Enforcement of Muslim Law by Syariah Court to decide on cases provided by the Enactment
        
        The Syariah Court
        
        Civil Jurisdiction eg marriage, divorce, disposition or claim of property arising out of the above, and guardianship or custody of infants.
        
        Criminal Jurisdiction eg matrimonial offences, offences relating to sex, and offences relating to consumption of intoxicating liquor.
        
        Punishment including imprisonment up to 3 years, fine up to RM5000, whipping up to six strokes or combination of all these.
    - - Customs of the local in habitants which have been accepted as law by the courts
        
        Types of Customary Law
        
        Native Customary Law
        
        Native Court
        
        Malay Customary Law
        
        Syariah Court
        
        Chinese Customary Law
        
        Ordinary Court
        
        Broadly applied.
        
        Applicable to certain matters only
        
        Offence to persons, property & society
        
        Family law
        
        Inheritance
      - Chinese & Indians- less
        important after the enforcement
        of the Law Reform
        ( Marriage & Divorce) Act 1976.
- - - - Nur Nabilah Izzah binti Md Eharay A18HA0172
        
        Nursahira binti Enji A18HA3044