Sei sulla pagina 1di 4

TUTORIAL ANSWERS ANSWERS FOR ASSIGNMENT

1.

What is law

- body of enacted or customary rules recognized by the community as binding


- Sir John Salmond - body of principles recognized and applied by the State in the
administration
of justice
John Austin - law is a command by a superior being to an inferior being and it is
followed by a
legal sanction if
the law is not obeyed. It has a
coercive(fear) effect, It threatens you to obey it.
In Malaysia , the Federal Constitution is the highest law of the land. It sets out the
legal
framework of law, it spells out the right and duties of the
citizens and it also sets the duties and
powers of the Federal and State
Governments.
Divided into public law and private law.
Public law
- law governing the relationship between individuals and the State
- public law consists of constitutional law and criminal
Private law
- concerns matters that affect the rights and duties of individuals amongst themselves.
- known as civil law
- consists of law on contract, tort and trust
2.

Classification

i)

Public law
- law governing the relationship between individuals and the State
- public law consists of constitutional law and criminal
- constitutional law concerns any right and duties of citizens under the constitution.
- criminal law covers offences against the state.

ii)

Private law
- concerns matters that affect the rights and duties of individuals amongst themselves.
- known as civil law
- consists of law on contract, tort and trust
- give an example under contract , tort or trust.

iii)

International law
- international law concerns law
- divided into public international law and private international law.
- Public international law is the law that prevails between States
- Private international law is part of municipal law as a result of which in every country
there will be a different version of it. Private international law consists of the rules that
guide a judge when the laws of more than one country affect a case
(conflict of laws).
iv)

Syariah law
Article 121(1A) FC

- Shariah laws (only applicable to Muslims)


- Shariah law administered in each State
- deals with property matters, matrimonial
- enforced in the Syariah courts
Q3. Differentiate between legislation and subsidiary legislation.
Parliamentary legislation
- laws enacted by Parliament
- these laws are subject to the FC
- these laws are not supreme
Subsidiary Legislation
- order, regulation, notification, by- law, proclamation that have legislative effect
- pt confers powers a power to local authorities , govt minister to make sl
similarities
- these laws are subject to the FC
- these laws are not supreme
- both are made by Parliament
- both have legislative effect.
Differences
- to modify/amend legislation need 2/3 majority
- Subsidiary legislation can be amended easily
Q4 (in tutorial 1 q2)
Sammy is advised to bring an action in the law of tort for the negligence of Bank Melaka.
This is not an area in contract law as contract law deals with agreements that are enforceable by law. Here
there is nothing to suggest that Sammy is in a contractual relatioship with the bank.
Sammy has to prove that bank was negligent.
There are 3 elements of the law of negligence. Sammy must prove that the bank owes him a duty of
care. This duty is primarily fixed by law. The Bank must ensure that the premises is safe
for persons
entering the bank.
On the facts of the case Bank Melaka failed to provide any warning signs to cautioning that the floor
was wet. Hence Bank Melaka has breached it's duty towards Sammy
The breach of duty must have resulted in the person suffering damages.
On the facts this is satisfied as Sammy sustained severe injuries and Sammy can claim for damages as
compensation.
5.

Briefly explain the Hierarchy of courts in Malaysia


Article 121 (1A) FC provides for dual justice system:
- Secular laws (Public and Private)
- Shariah laws applicable only in Shariah court
- The Malaysia there are 2 types of trials ie criminal and civil.(secular laws)
- The courts have both criminal jurisdiction and civil jurisdiction.

- Syariah law is inapplicable in the Malaysian Judiciary and will be


administered separately
in Syariah courts
- The courts structure is divided into Superior Courts and Subordinate Courts.
- Superior courts consist of Federal Court, Court of Appeal and High Court
- Subordinate courts consist of Sessions court, Magistrates Court and Penghulu court
Federal court- highest court. Final court ican explain the key pointers
court of appeal - to hear and determine appeals from High court. It is the final court of
appeal from decisions of the High court.It hears both civil and
criminal appeal.
High court The HC has both original jurisdiction and appellate jurisdiction. can
hear both criminal and
civil matters. HC can hear appeals against the decisions of the lower courts
sessions court - Sessions Court has the jurisdiction to hear both criminal and civil cases.
- Sessions Court has criminal jurisdiction to try all offences other than offences
punishable
with death, it cannot impose a death sentence.
- Sessions Court has unlimited civil jurisdiction to hear running down cases,
landlord and
tenant, and distress;
can try other suits where the amount in dispute does not exceed RM250,000.00

Magistrate's courts -Magistrates have the powers to hear both criminal and civil matters. magistrates
Court has the jurisdiction to try all actions and suits of a civil nature
where the amount in
dispute does not exceed RM25,000.00. The Magistrates' Courts also hear appeals
from the Penghulu's Court
Penghulu courts - jurisdiction of rm25.00
Q6 Explain sources of law
.

Sources of Malaysian law.


Sources of law means the legal rules that make up the law in Malaysia .
There are 2 types of sources that is written and unwritten sources.
Written sources are
- Federal constitution- highest law in msia
- sets out the legal framework and rights of Malaysian citizens
- Parliamentary legislation
- laws enacted by Parliament
- these laws are subject to the FC
- State constitution - state law
- governing laws in the particular state
- Subsidiary legislation- order, regulation, notification, by- law, proclamation that have legislative effect
- Parlianment confers a power to make delegated legislation on a government minister or another person or
body

Unwritten sources - English common law - do not originate from malaysian law
- application of english law is specified in the statutes
- only apply when there is no specific laws applicable to it
Judicial decisions - aka Doctrine of binding precedent/ stare decisis
- decisions of seperior courts binding on inferior/ lower courts
- Inferior courts must follow and they cannot question the law made by higher courts
Customs - also known as Adat law , eg adat perpatih. adat temenggung