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BEQ2123 - CONSTRUCTION LAW & MANAGEMENT: MALAYSIAN LEGAL SYSTEM PART 2…

- - - - regulates the relationship between one state and another
    - - PUBLIC INTERNATIONAL LAW
        
        the law that prevails between States
      - PRIVATE INTERNATIONAL LAW
        
        aka ‘conflict of laws’ as it is commonly referred to is a part of municipal law as a result of which every country has different versions of it; consists of rules that guide a judge when the laws of more than one country affect a case.
    - - Body of law which is compose of principles and rules of conduct which States are bound to observe in their relationship with each other;
  - - - deals with the relationship between a citizen and another i.e., matters that deal with the rights and duties of individuals amongst themselves e.g. contract, tort, family law, company law, property law
    - - CONTRACT
      - TORT
      - FAMILY LAW
      - TRUSTS
      - LAW OF PROPERTY
    - - Basically private or civil law whilst regulating the relationships between individuals has the following aims:
        
        Providing compensation to persons injured
        
        Enforce obligations (contracts and trusts)
        
        Enable property to be recovered from wrongdoers
  - - - regulates the relationship between the citizens and the State e.g. constitutional law, administrative law and criminal law
    - - ADMINISTRATIVE LAW
        
        regulates duties and exercise of powers by administrative authorities
      - CONSTITUTIONAL LAW
        
        deals with the rights of the individuals in the State
      - CRIMINAL LAW
        
        codifies various offences committed by individuals against the State; deals with the punishment of those who found guilty.
- - - - Islamic law
      - Customs of the local inhabitants which have been accepted by the courts
      - Judicial decisions of the superior courts i.e., High Courts and the Federal Courts;
      - Principles of English law applicable to local circumstances;
    - - Forms part of the laws of Malaysia;
      - Can be found inter alia in the English common law and Equity;
      - General Application of English Law :
        
        Under S.3 Civil Law Act 1956: Clause 3.(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-
        
        (b) In Sabah, apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on 1 December 1951
        
        (c) In Sarawak, apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on 12 December 1949
        
        (a) In Peninsular Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on the 7 April 1956
        
        Provided always that the said common law, rules of equity and statutes of general application shall be applied so far only as the circumstances of the states of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary.
        
        NOT ALL of England’s common law and equity form part of Malaysian law;
        
        The application of the law of England is subject to two limitations (proviso to section 3(1) of the Civil Law Act 1956) i.e.,
        
        (i) in the absence of local statutes and
        
        (ii) only that part of English law that is suited to local circumstances
    - - Common Law
        
        refers to law and the corresponding legal system developed through decisions of courts and similar tribunals, rather than through legislative statutes or executive action.
      - Equity
        
        name given to the set of legal principles, in jurisdictions following the English common law tradition, which supplement strict rules of law where their application would operate harshly, so as to achieve what is sometimes referred to as “natural justice”.
        
        often confusingly contrasted with “law”, which in this context refers to “statutory law”(the laws enacted by a legislature) and “common law” (the principles established by judges when they decide cases).
    - - Case example:
        It was held in this case that the English Superstitious Uses Act 1547 and Mormains Acts of 1531 and 1735 were NOT applicable in the Straits Settlements.
      - Maxwell C.J. said, “..that law is subject, in its application to the various alien races established here, to such modifications as necessary to prevent it from operating unjustly and oppressively on them.”
    - - Another important source of law in England though not a distinct type of law from which originated much of Insurance law;
      - The Law Merchant was based upon mercantile customs and usages and was largely international in character;
      - Section 5(2) on the other hand provides that
        in the states of Penang, Malacca, Sabah and Sarawak, the law to be administered in the matters of commerce shall be the SAME as would be administered in England at the corresponding period unless local laws exist.
      - So in West Malaysia, the principles of English commercial law to be applied is as it stood on the 7th April 1956
      - Thus in Penang, Malacca, Sabah & Sarawak, the law which is applicable in England at the same period in which the case is heard will apply but since we have many local statutes that relate to commercial law they will apply but not to English law.
      - Its application in Malaysia is based on section 5(1) of the Civil Law Act 1956 which provides as follows:
        
        With respect to mercantile law in the states of West Malaysia other than the states of Penang and Malacca, the principles of English commercial law to be administered shall be the same as would be administered in England in the like case at the date of the coming into force of this in the absence of local legislation.
      - Kon Thean Soong v Tan Eng Nam [1982] 1 MLJ 323
        
        Section 5 is silent on matters relating to suitability (of English commercial law) to local circumstances unlike section 3 of the Civil Law Act.
        
        In the above case, the Privy Council held that the English Moneylenders’ Act was not applicable to the Straits Settlements.
        
        The court in this case had held that the English Partnership law was NOT applicable in Malaysia since we already have the Contracts (Malay States) Ordinance to regulate the matter.
        
        So based on the above case it can be concluded that English Commercial law is still required to suit the local circumstances.
    - - TYPES
        
        Adat applies to Malays;
        
        Prior to the enforcement of the Law Reform (Marriage and Divorce) Act, 1976, Hindu and Chinese customary law were recognized.
        
        Customs of the local inhabitants of Malaysia are also a source of law;
        
        Peninsular Malaysia there are two main varieties of Malay customary law i.e., adat perpatih and adat temenggung
        
        Is personal law applicable to the natives of Sabah & Sarawak.
        
        Natives are the indigenous people of these two states;
        
        There is a hierarchy of Native Courts in both States exercising jurisdictions over natives in respect of their personal laws such as breach native customs, religion and matrimonial matters;
        
        The Native Court is a court peculiar only to the states of Sabah and Sarawak
      - Jurisdiction
        
        Native customary law applicable to non-Malay natives (Native law) and administered at Native Court.
        
        Non-native customary law (Chinese customary law -Sarawak only) administered at ordinary court.
        
        Malay customary law applicable to the Malay administered by Syariah court.
      - How will a “customary law” be considered “a law”?
        Conditions which must be present before a custom can be recognized by the courts as legally binding: (time) immemorial existence; existed continuously within that period, reasonableness, certainty, peaceful user, compulsion, capable of precise definition, consistent with other customs and not contrary to statute.
      - Definition:
        
        “The regular pattern of behaviour accepted by a given society as binding upon itself”
        Therefore, Certain customs by their nature can only apply to particular groups of people or in particular areas”
  - - - Legislation (statutes)
        
        law enacted by the legislative bodies in Malaysia (Parliament and the State Assemblies) (e.g., Acts of Parliament, Ordinances, Enactments etc.).
      - Subsidiary Legislations
        
        made by persons or bodies under powers conferred on them by Acts of Parliaments or State Assemblies (e.g., Orders in Council, Rules and Regulations, By-laws, Statutory Instruments etc.)
      - State Constitution
        
        consisting of the Constitutions of the 13 States comprising the Federation;
      - the supreme law of the nation, Article 4(1);