Law416 Business Law: Ahmad Waseem Dhihny Bin Yunus Faculty of Law, Uitm Shah Alam 013-5570207 Waseem@Uitm - Edu.My

LAW416
BUSINESS LAW
AHMAD WASEEM DHIHNY BIN YUNUS
Faculty of Law, UiTM Shah Alam

013-5570207
[email protected]
MALAYSIAN LEGAL SYSTEM
LAW 416
INTRODUCTION TO
COMMERCIAL LAW
(Week 1: Sources of Law)
2
INTRODUCTION
WHAT IS LAW?
A set of rules
– regulates interactions
– between people (individual and another individual)
– between individuals and government
– enforceable through sanction
Article 160(2) of the Federal Constitution:
Definition of ‘law’ includes:
a) Written law;
b) Common law in so far as it is in operation in the Federation or any
part thereof; and
c) Any custom or usage having the force of law in the Federation or in
any part thereof.
CLASSIFICATION OF LAW
Law
Public Law International Law Private Law

(Individuals and (Law that prevails (Individuals
the State) between States) inter se)
Public Private
International Law International Law
Constitutional Criminal Contract Tort Trust

Law Law (Rights and (Relationship
(Rights of (Offences (Offences
obligations against between
individuals in against the State.
that arise by individuals) trustee and
the State) Obligations
agreement) beneficiary)
imposed on
individuals)
SOURCES OF MALAYSIAN LAW
• Written law is the most important source of law. It refers

to the portion of the Malaysian law which includes the
following:
• The Federal Constitution

• The State Constitution
• Legislation
• Subsidiary Legislation
6
FEDERAL AND STATE
CONSTITUTION
The Federal Constitution (FC)

• Art 4- The supreme law of the land; any laws passed after
Merdeka Day which is inconsistent with this Constitution
shall to the extend of inconsistency, be void.
• The FC enshrines the basic or the fundamental rights of

individuals. These rights written in the Constitution can only
be changed by 2/3 majority of the total number of members
of the legislature. This is in contrast to normal laws which
can be amended by a simple majority.
7
FEDERAL AND STATE CONSTITUTION
The State Constitution

• There are also Constitutions of the 13 States comprising the
Federation, which forms part of written law in Malaysia.
• Some of these provisions include matters concerning the Ruler, the

Executive Council, the Legislature, etc.
8
FEDERAL AND STATE LEGISLATION
• Legislation refers to law enacted by a body constituted for

this purpose. In Malaysia, laws are legislated by the
Parliament at the Federal level and by various State
Legislative Assemblies at the state level.
• Laws that are enacted by the Parliament after 1946 but

before Malaysia’s Independence in 1957 are called
Ordinance, but those made after 1957 are called Acts. On
the other hand, laws made by the State Legislative
Assemblies (except Sarawak) are called Enactments. The
laws in Sarawak are called Ordinances.
9
Subsidiary Legislation/Delegated Legislation
• Interpretation Act 1948 and 1967:

Subsidiary Legislation means any proclamation, rule,
regulation, order, notification, or other instrument made
under any Ordinance, enactment or other lawful authority
and having legislative effect
• Subsidiary Legislation is very important as legislation by the

Parliament and the State Legislatures is insufficient to
provide the laws required to govern everyday matters.
Subsidiary legislation deals with the details about which
legislature has neither the time nor the technical knowledge
to enact laws. 10
UNWRITTEN LAW
• Unwritten law is simply that portion of the Malaysian law which is not written.
i.e. law which is not being enacted by the Parliament or State Assemblies and
which is not found in the written Federal and State Constitutions.
Unwritten law is found in cases decided by the courts, local customs, etc. The
unwritten law comprises the following:
• English Law
• Customs
• Judicial Precedents
11
1.4 ENGLISH COMMON LAW AND EQUITY
• English law comprises of two parts:

(a) Common Law
(b) Equity
• Sec 3(1) Civil Law Act 1956- in West Malaysia, the courts shall
apply the Common Law of England and the Rules of Equity as
administered in England on the 07.04.1956 (cut off date)
• In Sabah and Sarawak, the courts shall apply the English Common
law and Rules of Equity, together with statutes of general
application, as administered or force in England on the 01.12.1951
and Sarawak 12.12.1949 respectively.
• After the cut off date, English law does not become law in
Malaysia. Thus, Section 3 (1) connotes the strict application of the
English law in Malaysia before the cut of date.
12
1.5 Customs(Adat)
CUSTOMS
MALAY CHINESE INDIAN
CHINESE INDIAN
ADAT ADAT CUSTOMARY CUSTOMARY
PERPATIH TEMENGGUNG LAW LAW
13
1.6 Judicial Precedents
• Judicial Precedents are decisions made by a previous

judge in previous cases that have similar situations.
• Decisions of these courts were made, and still are being

made systematically by the use of what is called the
‘doctrine of binding judicial precedent’ or the rule of
stare decisis i.e. to stand by cases already decided.
14
• Two categories of judicial precedents:
(i) Binding
• All decisions of higher courts bind the lower courts
• The higher courts are bound by their own decision
(ii)Persuasive
• High Court Judges are not bound to follow the decisions of
another High Court Judges
• Decisions from outside of the Malaysian Courts
15
• DOCTRINE OF JUDICIAL PRECEDENT:
Decisions of Federal Court

FEDERAL binds all lower courts
COURT(FC)
COA is bound by the decision of FC.
COURT OF COA’s decision is binding on all lower
courts.
APPEAL(COA) COA is also bound by its own decision
HIGH
HC decision is binding on all
COURT(HC) subordinate courts
SUBORDINATE Bound by the decisions of the superior
COURTS(SC) courts.
16
Syariah Law
• Primary Sources: Al-Quran & As-Sunnah

• Secondary Sources: Ijma’, Qiyas, Ijtihad etc.
• Ramah v. Laton (1927) 6 FMSLR 1278; Islamic law is not
foreign law but local law and the law of the land.
• Art 3 FC- Islam is the religion of the Federation, but other
religions may be practiced in peace and harmony in any
part of the Federation.
17
• Article 11 of the Federal Constitution provides that every person has
the right to profess and practice his religion.
• The FC sets out that Islamic law in Malaysia is confined to the

personal laws and within the powers of the State.
• It can be said that the jurisdiction given by the State and Shariah
courts is limited.
18

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LAW416

Faculty of Law, UiTM Shah Alam

(Week 1: Sources of Law)

Public Law International Law Private Law

Constitutional Criminal Contract Tort Trust

• Written law is the most important source of law. It refers

• The Federal Constitution

The Federal Constitution (FC)

• The FC enshrines the basic or the fundamental rights of

The State Constitution

• Some of these provisions include matters concerning the Ruler, the

• Legislation refers to law enacted by a body constituted for

• Laws that are enacted by the Parliament after 1946 but

• Interpretation Act 1948 and 1967:

• Subsidiary Legislation is very important as legislation by the

• English law comprises of two parts:

MALAY CHINESE INDIAN

• Judicial Precedents are decisions made by a previous

• Decisions of these courts were made, and still are being

Decisions of Federal Court

• Primary Sources: Al-Quran & As-Sunnah

• The FC sets out that Islamic law in Malaysia is confined to the

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