BSR406 - building control I

Lecture 01
INRODUCTION TO LAW
zulkifli sapeciay
 WHAT IS LAW

• General rule of conduct

• Sir John Salmond, Jurisprudence: The body of

principles recognized and applied by the State in
the administration of justice… in other words, law
consists of the rules recognized and acted on by
courts of justice

• Carzon, A Dictionary of Law: The written and

unwritten body of rules largely derived from
custom and formal enactment which are
recognized as binding among those persons who
constitute a community or state, so that they will
be imposed upon and enforced among those
persons by appropriate sanctions…
 FUNCTION OF LAW

• As a clear method to protect or control the community or

people of his conduct. Example, criminal law is used to
protect or control any anti-social activities wherein any
action or activities that contravened criminal law will be
punished. As such, people will be more careful hi every of
his action to ensure that his action will not cause
detrimental, injury damage etc to others.

• To encourage the doing of what is right or just

• To provide sanction to wrongdoers

• To ensure that the victim will be compensated.

 CLASSIFICATION OF LAW

A) Secular/Civil B) Syariah Law

Law

c) International Law
 Classification of Law
A) Secular Law

1. PUBLIC LAW
Governs the relationship between individuals and the state.

Constitutional Law
Lays down the rights of individuals in the State.

Criminal Law
Codifies the various offences committed by individuals against the
state. Aims at punishing criminals and suppressing crime.

Administration Law
Laws that lays down the administration and
execution power of the executive in administrating the State

Industrial Law
Laws that lays down the administration and
execution power of the executive in administrating the State
 Classification of Law
A) Secular Law (Cont’d)
2. INTERNATIONAL LAW
Body of law that prevails between States

3. PRIVATE LAW
Concerned with matters that affect the rights and duties of individuals.
Action taken at the instance or initiative of an individual.

Contract : Based on agreement. Determines when a promise or a set of

promise is legally enforceable

Tort :Obligation imposed by law-civil wrong: remediable by a civil

action for unliquidated damages.

Trust: Equitable obligation binding a person to deal with property over

which he has control for the benefits of person.
 Classification of Law
B) Syariah Law
Law which are enacted by and revealed from Allah swt, cannot be
amended or whatsoever at anytime

C) International Law

Is a body of law which is composed for its greater part of the principle
and rules of conduct which State feel themselves bound to observe
and consequently commonly do observe in their relation whih each
other.
 Terminology
Criminal Law - Beyond Reasonable Doubt
Civil Law - Balance of probabilities

Civil Criminal
Plaintiff (Plaintif) Prosecutor (Pendakwa raya)
Sue (Saman) Prosecute (Dakwa)
Defendant (Defendan) Accused (Tertuduh)
Liable (Bertanggungan) Guilty (Bersalah)
Judgment for the Plaintiff)
(Penghakiman untuk Plaintif) Convict (Sabit Kesalahan)

Appeal Case
Appelant (Perayu) Respondent (Responden)
SOURCE OF MALAYSIAN LAW
 Sources of Malaysian Law

• Written Law

• Unwritten Law

• Muslim Law
 Sources – Written Law

Refer to that portion of Malaysia law

which includes Federal Constitution,
State Constitution, Legislation and
Subsidiary Legislation
 Sources – Written Law

MOST important source of written law.

Consist of:
• Federal constitutions
• State Constitution
• Legislation
• Subsidiary Legislation
 FEDERAL CONSTITUTION

What is Constitution?

Basically refers to a set of rules which determines, among others,

the manner the institution are to be set up, the powers to be
distributed and the justice to be administered

A constitution is "[a] charter of government deriving its whole

authority from the governed" (Black's Law Dictionary).

The constitution sets out the form of the government. It specifies

the purpose of the government, the power of each department
of the government, the state-society relationship, the
relationship between various governmental institutions, and
the limits of the government. The classic liberalism posits that
the state and society can be viewed as a big social contract. If
so, in a liberal democratic country, the constitution is the
fundamental part of the social contract; it is a fundamental
contract between the state and the civil society.
 FEDERAL CONSTITUTION

Malaysia exercises federal parliamentary

monarchy, whereby the Prime Minister of
Malaysia is the head of government, and of a
pluriform multi-party system.

Executive power is exercised by the

government.

Federal legislative power is vested in both the

government and the two chambers of
parliament, the Senate (Dewan Negara) and
the House of Representatives (Dewan Rakyat).
 FEDERAL CONSTITUTION

Can only be changed by a two-thirds majority

of the total number of members of the
legislature.

However, amendments pertaining to the

powers of sultans and their respective states,
the status of Islam in the Federation, the
status and rights of bumiputras, the status of
the Malay language as the official language, to
name a few example, shall require the assent
of the Conference of Rulers
 FEDERAL CONSTITUTION
The Constitution is divided into 14 parts and 13 Schedules.
Each part and schedule contain relevant articles. There are
181 articles in the 14 parts, including those which have
been repealed.

Eg. Article 149

Article 149 gives power to the Parliament to pass laws to

suspend a person's fundamental rights vested to him in
Part II of the Constitution if the Parliament believes that
the person is a threat to national security or public order .
The laws passed to the effect of this article include, to
name a few:
Dangerous Drugs Act 1952 (Revised 1980)
Internal Security Act 1960 (Revised 1972)
Official Secrets Act 1972
Printing Presses and Publications Act 1984
 STATE CONSTITUTION

Contains provisions enumerated in the Eighth

Schedule of the Federal Constitution (e.g.
matters concerning the Ruler, Executive
Council, Legislative Assembly, financial
provisions, State employees, amendment of
the Constitutions etc)

If any of such essential provisions are missing

or if any provision is inconsistent with them,
Parliament may make provision to give effect
to them or to remove any inconsistencies.
 LEGISLATION
Legislation refers to law enacted by a body constituted
for this purpose.

In Malaysia, laws are legislated by Parliament at Federal

Level and by various State Assemblies at state level.

•Statutes (Acts) & Ordinances enacted by Parliament &

State legislatures
– Laws enacted by parliament between 1946 and 30/08/1957 –
Ordinances
– Laws enacted by Parliament beginning 31/08/1957 – Acts
– Laws enacted by the State Legislation Assemblies (except
Sarawak) – Enactments
•Laws in Sarawak – Ordinances
 LEGISLATION

Parliament and State Legislatures are

not supreme. They have to enact laws
subject to the provisions set out in the
Federal and State Constitutions. The
subject matters for legislation is divided
between the State and Federal
Governments.
 SUBSIDIARY LEGISLATION

Defined as “ any proclamation, rule,

regulation, order, notification, by-law or other
instrument made under any Ordinance,
Enactment or other lawful authority and
having legislative effect.”

Is very important as legislation by Parliament

and State Legislatures is insufficient to
provide laws required to govern everyday
matters.
 SUBSIDIARY LEGISLATION

Deals with the details which legislatures

neither have time nor the technical
knowledge to enact laws

Subsidiary legislation made in

contravention of either a parent Act/the
Constitution is void.
 Sources – Unwritten Law

Consist of:

• English / Common Law

• Equity
• Judicial Precedent
• Customs
 English/Common Law

• Common Law / English Law is the

cultural and legal tradition of England
which accepted by the courts to become
a local law that binding under the
doctrine of judicial precedent and the
rule of equity.

• Common Law has been received in

Malaysia and it is done either expressly
or by implication.
 English/Common Law

• However, not all of common law and

rules of equity form part of Malaysian
law. The application of the Common Law
throughout Malaysia is conditional.
 English/Common Law

That is to say, it is subject to 2 conditions or

limitations:-

1. It is only applied only in the absence of

local statutes covering
the same matter. Local law take precedents over
Common Law as the latter is meant only to fill in
gaps in the local system.
 English/Common Law

2. Only that part of the Common Law that suited

to local circumstances will be applied. Its
provides under Section 3(1) of
the Civil Law Act:-

"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
qualification as local circumstances render necessary
".
 Equity

English/Common Law has its weaknesses such as

damages or remedies provided by the Common Law is
not appropriate or satisfied for example under the
Common Law it cannot force the defendant to be
answerable to perform its duty and obligations under
an agreement.

Common Law also does not recognized the trust

concept and it cannot force the trustee to give or
return the subject of trust (property) to the
beneficiary. Common Law only recognize the trustee
as the owner on ground that the property is in his
possession.
 Equity

As such, rules of equity come into force when the

plaintiff referred his matter to the Chancellor and he
tried the case in accordance to his own discretion
without bind himself to the Common Law. He
introduced specific performance and injuction. And he
recognized the trust concept
 Equity

Any conflict between the common law and equity, the

rules of equity shall prevail. By Section 3(2) of Civil
Law Act provides that in the event of conflict or
variance between the common law and the rules of
equity with reference to the same matter, the rules of
equity shall prevail.
 Judicial Decision

Malaysian Law can also be found in the

judicial decisions of the High Court, Court of
Appeal and the Federal Court. Decisions of
these courts were made, and still are being
made, is called 'the doctrine of binding
judicial decisions". Judges do not decide
cases arbitrarily. They follow certain
accepted principles commonly known as
precedents.
 Judicial Decision

Precedents are basically decision made by

the judges previously in similar situations.
For example, if the Court Appeal made a
certain decisions in 2000 and assuming the
facts and situations before a High Court
judge deciding a case in 2006 are similar to
the said Court of Appeal case, the High Court
judge must decide the case before him by
applying the principles laid down by the
Court of Appeal in 2000.
 Custom

Customs of local inhabitants which have been

accepted as law by the courts (eg Adat
Perpatih, Adat Temenggong)

Generally, customs relating to family law i.e.

marriage, divorce, inheritance.
 THANK YOU
SEE YOU NEXT WEEK!!