Academic Session 2014

Semester 1
TCM203/05 (Legal System and Construction Law)
Tutor Marked Assignment
TMA 1


Name Shfulrizam Bin Mohd Dinal
Student ID 071120185
Email Shful.hpc@gmail.com
Tutor Name Ms. Yeap Chu Im
Class Code 7LSC1






1. A fundamental understanding of the Malaysian Legal System is essential for a
Construction Manager working in the Malaysian Construction Industry.
i. Explain briefly what do you understand by law?
The law formed at federal level is called an act and the law formed at state level is
called an enactment. Law is
Setting of regulations, system and principles which shall be followed
through stringent enforcement and implementation to uphold rights,
equality, fairness and justice for every human without see their status.

As guideline principle to design base of politics, economy and commerce
in various aspects, and usually referred to as a mediator between humans.

ii. Explain briefly the sources of Malaysian written law

The main sources for legal system in Malaysia are based on written law.
Federation with 13 states and two Federal Territories, its written law consists of
Federal and State Laws. There are three (3) main sources of Malaysian written
law:
1. The Federal Constitution is the supreme law, in conjunction with the
constitutions of the 13 states of the Federation of Malaysia.

2. Legislation enacted by Parliament and State Assemblies.

3. Delegated legislation made by persons or bodies under authorization by
Acts of Parliament or enactments

iii. Explain briefly the significance of Malaysian Federal Law and State Law

Federal Law
Federal Law can be described as follows:
As known as Acts (of Parliament).
Federal Laws are made by the Members of Parliament and senators
(legislators) in the Parliament of Malaysia.
The Acts are enforced whole Malaysia consists of Peninsular Malaysia,
Sabah and Sarawak (some Acts are made with modifications before it can be
enforced in Sabah and Sarawak).



The Parliament of Malaysia is based on the Westminster or British
parliamentary system. It is a bicameral parliament consists of the Dewan
Rakyat (which is referred to as the House of Representatives) and the
Dewan Negara (which is referred to as the Senate).
The King (Yang di-Pertuan Agong) is the Supreme Head of the Federation
(Article 32 of the Constitution of Malaysia) and the third component of the
Parliament.
It can be seen that Malaysian Parliament has three main components: it
comprises the Dewan Rakyat, Dewan Negara and Yang di-Pertuan Agong.
Dewan Rakyat and Dewan Negara are legally elected and appointed to
review proposed bills before they are passed as Acts. All bills must be
presented, reviewed and amended in the Parliament before they can be
consented as Acts. The Malaysian Parliament assembles in the House of
Parliament, now located in the capital city of Kuala Lumpur.
The Acts relating to land, immigration and natural resources management
(e.g. forestry) are governed uniquely and concurrently by State
Governments, especially in Sarawak and Sabah.




























State Law

The State Law can be explained as bellows:

Based on 13 states of the Federation of Malaysia. Each state has a State
Legislative Assembly (Dewan Undangan Negeri) which the State Laws
are enacted.
State Laws are only applicable in the specific state where the State Laws
are enacted, and not to the whole country.
Therefore, different states will have different applicable State Laws. The
State Law is also known as enactments or ordinances. For instance, in
Sarawak, they are known as ordinances. It is interesting for you to note
that laws promulgated by the King (Yang di-Pertuan Agong) during an
emergency under Article 150 of the Federal Constitution are also known
as ordinances. The State Legislative Assembly is limited to enacting laws
(ordinances) within its jurisdiction as stipulated by the Federal and State
Constitutions.
The laws passed by the Malaysian Parliament and State Legislative
Assembly are not supreme laws.
The Federal Constitution, or Constitution of Malaysia, is the supreme law.
If there is any inconsistency between the State Law (including Shariah
Law) and the Federal Law, the Federal Law (Federal Constitution) shall
prevail over the State Law (State Constitution).
The State Legislative Assembly consists of elected political
representatives from the single-member constituencies during the State
elections. The State Assembly has jurisdiction to enact State Laws in
accordance with the Constitution of Malaysia and the State Constitution.
The majority party of each assembly will form the State Government, and
the leader of the majority party becomes the Chief Minister (Menteri
Besar or Ketua Menteri) of the State.





iv. Briefly explain the four (4) types of events in order to be disqualified from being
a Member of Malaysian Parliament or Senator.
The Constitution of Malaysia stipulates that every citizen aged 21 and above is
qualified to be a member of the Dewan Rakyat and every citizen aged 30 and
above is qualified to be a senator in the Dewan Negara, unless he/she is
disqualified under Article 48.
These include:
a) Insanity of mind,
b) Bankruptcy or financial insolvency,
c) Acquisition of foreign citizenship, or
d) Committed an offence, with jail term more than one year or to a fine of
penalty more than RM2,000














2. The Constitution of Malaysia is the backbone of the Malaysian Legal System.
i. Explain the importance of the Constitution of Malaysia and why we need it?

The Constitution of Malaysia is most important to us based on the Article 4(1) of
the Constitution stipulates that:

a) This Constitution is the supreme law (highest law) of the Federation and
any law passed after 31 August 1957 which is inconsistent with this
Constitution shall be void no one can overrule it.

b) It was stipulated that the government and monarch (Yang di-Pertuan
Agong) is elected, their authority, roles, powers and the rights of citizens
too. Their authorities are protected and given exclusive powers to do so
under the different Articles in the Constitution of Malaysia.

c) It is the legal framework for the executive, legislature and judiciary
branches of the Federal Government of Malaysia.



























ii. With the aid of a flowchart briefly describe the hierarchy of the Malaysian
Judiciary system.



Figure 1 : Judicial structure in Malaysia


Figure 2
The Judiciary system in Malaysia can be described as follows:

Malaysia Judicial system consists of High Court, Court of Appeal
and Federal Court of Malaysia.
Te subordinate courts are Magistrate court and Session court.
There are other type of court Penghulus Courts, the Shariah
Courts and the Native Courts.
Juvenile Court has equal jurisdiction with Magistrates Court.
There are two types of trials or proceedings in court, namely civil
and criminal.
The statutes governing these judicial system and jurisdictions are
Courts of Judicature Act 1964 (for High Court, Court of Appeal
and Federal Court), and Subordinate Courts Act 1948 (for
Magistrates Court, Sessions Court and Penghulus Courts), and
Child Act 2001 (for Juvenile Court).









iii. Explain briefly the Dual Justice system as practiced in Malaysia.

What is meant by stare decisis. Do you think the High Court has the authority to
take precedent over the judgments made by the lower courts such as Sessions
Court and Magistrates Court without going through the appeal process? Justify
your answer with two examples of cases

Stare Decisis can be explained as:

The situation which the supreme courts have judicial authority over lower
or subordinates courts in courts precedents or decisions. This can be
reflected in the Malaysian judiciary system

The word stare decisis originally from Latin "Stare decisis et non quieta
movere:

Latin for to stand by things decided (roughly)

The notion that prior court decision must be recognized as precedents

Civil laws Systems believe stare decisis interferes:

i) With judges ability to interpret the law
ii) Legislatures ability to make the law

The two example case can be described as follows:
The cases between PP v Datuk Tan Cheng Swee & Anor (1988) , it is necessary
to reaffirm the doctrine of stare decisis which Federal Court accepts unreservedly
and which it expects the High Court and other inferior courts in a common law
system such as ours to follow similarly .The doctrine of judicial precedent
involves an application of the principle of stare decisis (to stand by the decided).

BANK ISLAM MALAYSIA BHD v. AZHAR OSMAN & OTHER CASES
HIGH COURT MALAYA, KUALA LUMPUR
ROHANA YUSUF J
[ORIGINATING/WRIT OF SUMMONS NOS: D4-22A-395-2005, D4-22A-
399-2005, D4-22A-195-2006 & D4-22A-263-2006]
28 JANUARY 2010BANKI NG: I slamic banking Loan facility Bai Bithaman
Ajil Determination of quantum of plaintiffs claim Whether bank had legal
right to claim for full sale price as stipulated in Property Sale Agreement
Doctrine of stare decisis Whether there was binding precedent National Land
Code, ss. 257(1), 266(1).

3. i. Discuss the two most significant amendments in relation to the administration of
The Local Authority and the setting up of National Council for Local Government
after the Local Government Act 1976 (Act 171) was enforced.


Three main laws were passed due to amendments the Local authority; Street,
Drainage and Building Act, Local Government Act 1976 and Town & Country
Planning 1976. It was give two most significant impacts to Local Authority
consists of:

There is no more local councillor elected, election processes and replace
with appointed by State Government.
The objective of Local authority to help state government in development
and acceleration of economic in state only.


ii. Discuss the importance of Uniform Building By-Laws (1984) during the design
stage for a building project.

During the designing stage (refer UBBL Part II, III, V, VI, VII, VIII, IX):
a) Submission of plans for approval
Describe the scale of the drawings for example site plan 1:1000
All plan drawings shall be in SI unit
Site Plan showing proposed site complete with number of lot.

b) Space, light and ventilation
Clause 32(1) mentioned the open space of Building
Clause 32(2) Calculation of open space
Clause 32(3) mention of the space, ventilating and lighting.

c) Structural requirements
Refer to clause 53 to 80.
d) Constructional requirements
Clause mentioned that staircase, timber, party wall and drainage
requirements.
e) Fire requirements
Mentioned that compartment wall
Height of building more than 30 meter to be build as
compartment floor.
f) Miscellaneous
Third Schedule ( clause 41) on mechanical and electrical
Fourth Schedule (clause 56, 59) on structural requirements.


4. On completion of a building project the CFO is issued by the LA while the CCC is issued
by the PSP.
i. Explain how the Certificate of Completion and Compliance (CCC) can benefit
and protect the house buyers interests compared to the Certificate of Fitness for
Occupation (CFO).

a) The house buyer taking vacant possession (VP) of the completed building
will be same time of the issuance of CCC. It can avoided the issue of
house buyer being given the key but unable occupy the house due to late
of issuance CFO.

b) More transparent which the parties involved has been identified and more
responsible.

c) The building will be certified by professional architect and engineers
which the building will declare safe to be occupied in accordance with
building plan and engineering drawings.

d) CCC is replace of CFO which CCC has issued by professional architect
and engineer but CFO has issued by Local Authority.

e) CCC has resolved the delay of issuance of CFO by local authority which
the CCC is issued by PSP.







ii. Elaborate the criteria to be met before the Certificate of Completion and
Compliance (CCC) can be awarded.
The CCC has issue by Principle Submitting Person (PSP) which professional
Architect, Engineers or registered building Draughtsman (have restriction which
not more than double storey or built up area less than 300 square metres.)
To obtain the CCC for a building project, the developer must obtain clearances for
meeting the requirements from six essential services:
a) Confirmation and get supporting letter of electrical supply (TNB).
b) Confirmation and obtain supporting letter of water supply (water
authorities).
c) Confirmation of connection to sewerage treatment plant or mains
(JPP).
d) Clearance from lifts and machinery department, if applicable
(JKKP)
e) Clearances for active fire-fighting systems except for residential
buildings not more than 18 m high (Bomba).
f) Roads and drainage.