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Law & Engineering

Practice
ECM 517

Principles of Law
Lesson Learning Outcomes
At the conclusion of this lesson, we should be
able to:
Discuss what is Law.
Describe the various types of Laws
State the sources of Law
What is Law?
Law has many definition

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
Curzon

A command set by superior being to an inferior being and enforced by


sanctions (punishment)
John Austin

Law is not synonymous with Justice


What is Law?
Law is a system of rules that people are supposed to
follow in a society or a country.
To follow the laws of a society is to do legal things.
An activity is illegal if it breaks a law or does not
follow the laws.
In ancient societies, laws were written by leaders, to
set out rules on how people can live, work and do
business with each other.
Today in most countries, laws are written and voted
on by groups of elected politicians in a legislature,
such as a parliament or congress.
What is Justice?
Justice refers to fairness or rightfulness; it is a
moral value to which the law is a means
towards its attainment

The famous latin legal phrase: fiat justitia


ruat caelum
Let justice be done though the heaven falls
History of law
The history of law is closely connected to the development of
human civilisations. Ancient Egyptian law developed in 3000
BC. In 1760 BC King Hammurabi, took ancient Babylonian law
and organized it, and then had it chiseled in stone for the public
to see in the marketplace. These laws became known as the
Codex Hammurabi.

The Torah from the Old Testament is probably the oldest body of
law. It was written in about 1280 BC. It has moral rules such as
the Ten Commandments, that tell people what acts are not
permitted.
Law in Malaysia - History
Native legal system (Negrito, Senoi and Malay
Aborigin)
The Malacca Sultanate
The spread of Islam to South East Asia
The extension of British colonial

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Law, State and Constitution
Peninsular, Sabah and Sarawak 1 political unit
yet different sets of law
2 common links:
Parliament can and does whole country legislation
Federal Court is the final court of appeal for the whole country
Internationally, Malaysia is a state
Locally, within Malaysia there are 13 states
each has a government and rules
Malaysian written constitution i.e. Federal
Constitution as supreme law
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Classification of Law
Law regulates the citizen in their relations
with the State (government) and with one
another. An easy way to see how it operates
in the legal system is to classify it in the light
of its relationship. Law can be classified into
Per Content, Per Sources and Per
Enforcement.
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Categories of Law

Per Content Per Sources Per


Enforcement
Substantive Law
[rights & legal Written Law Public Law
power]

Unwritten Law Private Law


Procedural Law

International
Law
Public Law
Public law regulates the relationship between
the citizen and the state

It is further divided into areas of law dealing


with different types of matters affecting the
citizen-State relationship namely,
constitutional law, administrative law and
criminal law.
Public Law 3 types
Constitutional law defines the structure of
government and the rights of inviduals under that
government. (is used to create laws on how different levels of
governments can act and on human rights.)

Administrative law regulates the duties and


exercise of powers by administrative authorities (is
used by ordinary citizens who want to challenge decisions made by
governments.)

Criminal law (familiar to most people) concerns


those acts or omissions which are offences against
the State and for which offender is liable to be tried
and, if found guilty , punished. (is used by the government to
prosecute and punish people who break laws.)
Private Law
Private law (sometimes referred to as civil
law) regulates relationship between citizens
and may further divided according to the way
of how it regulates the relationship.
It includes contract, tort, trust, land, family,
company, partnership, agency and
commercial law.
Legal action is normally undertaken at the
initiative of the individual
Types of Private Law
Contract law sets rules on agreements to buy and sell
items and services.

Property law states the rights and obligations that a person


has when they buy, sell, or rent homes and buildings.

Trust law sets out the rules for money that is put into an
investment, such as pension funds that people save up for
their retirement.

Tort law helps people to make claims for compensation


(repayment) when someone hurts them or hurts their
property.
Private Law
The party commencing an action is referred to
as the plaintiff and the other party being
sued is the defendant.
The action is called civil proceeding and the
procedure governing it is quite different from
criminal proceeding which is a prosecution of
an offender for an alleged offence.
The law of contract is the most important
because it encompasses all sorts of
commercial and non-commercial transactions.
The Common Law
Refers to law laid down by judges judge -made laws
sitting in the Superior Courts as distinct from statute
law enacted by the legislation
It comes from England and it became part of almost
every country that once belonged to the British
Empire, except Scotland, and the Canadian province
of Quebec. Common law had its beginnings in the
Middle Ages, when King John was forced by his
barons to sign a document called the Magna Carta,
which limited his authority to pass laws. Over time it
developed solid principles.
Religious Law
Religious law is law based on religious beliefs
or books. Examples include the Jewish
Halakha, Islamic Sharia, and Christian Canon
law. Until 1700s, Sharia law was the main
legal system throughout the Muslim world. In
some Muslim countries such as Saudi Arabia
and Iran, the whole legal systems still base
their law in Sharia law.
Religious Law - Islamic Law
Applicable only to Muslims and administered
in the Syariah Courts.
The power to administer Islamic law is
primarily that of the States (except KLWP and
Labuan).
The Syariah Courts possess civil jurisdiction
in proceedings between parties who are
muslims, and limited criminal jurisdiction over
offences by muslims against the religion such
as not fasting in the month of Ramadan,
alcohol consumption and others
Native Law
Personal law applicable to the natives of
Sabah and Sarawak
Natives are the indigenous people of these
two states and the legal definition of Native
is found in the Federal Constitution and State
law
Sources of Law
The main sources of Malaysian law are:
Federal Constitution
13 Constitution of the States
Federal laws made by Parliament
State laws made by State Assemblies
Federal and state subsidiary legislation
Judicial decisions of the Superior Courts
often referred to as common law or judge-
made law
Sources of Law contd..
Principles of English law suitable to local
circumstances
Islamic law which is applicable to Muslims
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Written Federal Constitution
Supreme law of the country
Under a power of Federal and State Governments
Outline individual rights
Can be changed by a 2/3 majority of the total
legislature
Comprises Articles (provides items e.g. name of
federation, religion, liberties (freedom), citizenship,
election, judiciary power etc)

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Written Legislation
Laws enacted by a body constituted for this purpose
In Malaysia, laws are legislated by Parliament
Laws enacted before 1957 are known as Ordinances,
after 1957 are Acts
Laws enacted by State Legislative Assemblies
(Dewan Undangan Negeri) are called Enactments
(Sarawak Ordinances)
Used as a mean of repealing, amending, enacting or
codifying the law

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Written
Regulations/Sublegislations
Any proclamation, regulation, order,
notification, by-law or other instrument made
under any ordinance, enactment or lawful
authority and having legislative effect
Detail the Parliament and State legislature to
govern everyday matter

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Unwritten English Law
Part of Malaysian law
Sources are English common law and rules of
equity
Earlier application without modification
Nowadays subjects to:
Absence of local statutes (written law passed by a
legislative body) on particular subjects
Suitability to local context

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Unwritten Judicial Decisions
Found in the judicial decisions of:
High Court
Court of Appeal
Federal Court
Supreme Court
Judicial Committee of Privy Court (Jawatankuasa Kehakiman)

Advantages:
Practical based on actual experiences
Flexible compared to law enacted by Parliament
Rich in legal detail than statue law (written enactment of a legislative authority
that governs a state, city or country)
Cases should be treated in a similar fashion by the courts to ensure justice
Disadvantages:
Greater research needed
Difficult to tell the statement in a judgment is ratio or dicta

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Unwritten Judicial Decisions
Doctrine of Stare Decisis/judicial precedent
Sources of law where past decisions of the judges
create law for future judges to follow
Also known as case law, which is one of the primary
sources of English law and Malaysian law
Create certainty of outcome for future case and
scope for the common law to be modified and updated
Way of operation:
Vertical bound by the prior decisions of a higher court
Horizontal bound by their own prior decisions and prior
decisions of a court of the same level
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The impotance
Its create certainty of outcome for future case and scope for the
common law to be modified and updated.

Legal profession can give more helpful advice regarding the law to
their clients, including advice as to the merits of the case and, just as
importantly, advice regarding the outcome.

This is essential because issues of costs are likely to be involved and


any question of whether to continue with a court action may have to be
balanced with the chances of success and the probable costs involved.

The doctrine of precedent therefore helps with questions of


predictability as judicial precedent is rigidly followed.

This certainty leads to consistency and fairness in that like cases are
dealt with in a similar way.

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Unwritten Customary Laws
West Malaysia Customary Laws
Undang-Undang Adat Melayu tradition
elements:
Undang-Undang Adat Melayu Purba i.e. Adat Pepatih
and Adat Temenggung
Undang-Undang Hindu
Dharmasutra - manuals of human conduct
that form the earliest source of Hindu law
Dharmasastra - poetic

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Unwritten Islamic Law
Applied to Muslim, regardless of race
Extends to family matters and inheritance
Administrates by Syariah Courts (Islamic
courts) at state and in Federal Territories of
KL and Labuan

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Organisation of Civil Court

Hear and
determine by
Ruler of YDPA

Syariah Court
Syariah Court
Native Court

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The Malaysian Judiciary
Federal Court
To the exclusion of any other court
Determine validity of law made by Parliament/State
Exclusive jurisdiction to determine dispute between States and Federal
Ultimate court in civil, criminal and constitutional matters
Court of Appeal
With appellate jurisdiction to hear civil and criminal cases of High or Session Courts
High Court
Criminal cases which carry death penalty
Civil cases of divorce, admiralty (maritime law), bankruptcy and company matter
Session Court
Criminal all offences other than offences punishable with death
Civil Cases
Magistrates Court
Criminal cases
Civil cases

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Rule of Law
The Rule of Law is the law that says that Government can
only legally use its power in the way the government and
the people agree.
It limits the powers a Government has, as agreed in a country's constitution.

The Rule of Law prevents dictatorship and protects the rights of the people.

When leaders enforce the legal code honestly, even on themselves and their
friends, this is an example of the rule of law being followed.

"The rule of law", wrote the ancient Greek philosopher Aristotle in 350 BC, "is
better than the rule of any individual."
Professional Engineers and The Law
Engineers like other professional people, have a duty
to acquire a working knowledge of the law as it
affects their professional work
.
In the case of an engineer the relevant fields of law
are notably those of contract, especially the standard
forms of building contract, and the various statutory
regulations, such as the Building Regulations,
planning law, health and safety law, procurement law,
and the like
Professional Engineers and The Law
Although, an engineer is not expected to know all the
law in depth, but he is expected to ensure that his
client does not suffer from the absence of his own
legal knowledge.
He is expected to know enough law and shall be
aware of the circumstances in which specialist legal
advice is needed.
He should then advise his client to obtain legal
advice.
Alternatively, he should himself instruct a barrister
directly.
Professional Engineers and The Law

An engineer will also want to know about the


areas of law which affect him or her
personally.
When can he be sued?
How can he sue for his fees?
When is copyright in his design protected?
How should he insure?
What is the legal relationship between him and
his employer, or between him and his
employees?