E-Business Law

E-Business Law - Tutorial 1

Question 1

Describe the various sources of law in Malaysia:
i) Written Law
ii) Unwritten Law

Answer:

i) Written Law

A written law is a source of Malaysian Law which includes the following:
a) The Federal and State Constitution
b) Legislation
c) Subsidiary Legislation

The Federal Constitution is a supreme law of the length. Besides laying down the most important powers of the states of the government, the Federal Constitution enshrines the most basics or fundamental rights of the individual.

The state constitutions are the various constitution regulations regulating the government of Malaysia respective 13 states. The constitution provides from matters enumerated (taken from) in the 8 Schedule of the Federal Constitution. Such provision include the matters relating to the rules, the executive counsel, the legislature, the legislative assembly, financial provision, state employees and amendments to the constitution.

Legislation is the law elected by the legislators that is Parliaments at federal level and the various state legislative assemblies at state level.

Subsidiary legislation is defined in the interpretation act as “Any Proclamation, Rule, Regulation, Order, and Notification by Law or any Instruments made under any ordinands, electment or other lawful authority and having legislative effects”. Subsidiary legislation supplements (helps) legislation by Parliaments and the other state legislatures as legislation alone is insufficient and lacks, details in the governing of everyday matters and in practice.

Subsidiary legislation is insufficient and lacking in details, therefore Minister and local authorities must legislate (make the law). Subsidiary legislation may in contravention (against) of either apparent act or the Federal Constitution is void except in a proclamation of emergency under Article 50 of the Federal Constitution– Eng Keock Cheng vs. Public Persecutors (case happened).

ii) Unwritten Law

Another important source of law is unwritten law which comprises the following:

a) Principle of English Law applicable to local circumstances
b) Judicial decision and judgment of the superior court. Example such as the Federal Court and as well as those of the subordinate courts (Session Court, Magistrate Court).

Muslim Law is also an important source of Malaysian Law. Although it is only applicable to Muslim and its administered by separate system of court (Syariah Court). This source of law is important since Muslim from majority religious group in whole of Malaysia.

Another source of law in Malaysia is English Common Law and the rules of equity (justice/fairness). Where this is a conflict between common law and equity, equity prevails. In Peninsula Malaysia, common law of England and the rules of equity applied as administered in England on the 7th April 1956. Where there is a conflict between English law and written law of Malaysia, a Malaysian written law prevails.

Textbooks are regarded as authoritative statements of the law which are reliable as another source of law.

Question 2:

English common law and the rules of equity from part of the law in Malaysia. Discuss the extend of the application of the English common law of Malaysia.

Answer:

Section 3 (1) (a) of the Civil Law Act of 1956 state that the court of Peninsula Malaysia shall apply the common law of England as well as equity as administered in England on 7th April 1956. In the state of Sabah and Sarawak, the common law of England and the rules of equity shall apply together with the statutes (act of parliaments) of general application as administered in England on the first day of December 1951 and 12th day of December 1949 respectively.

However, the application of English Law throughout Malaysia is subjected to 2 limitations:

a)It is apply only in the absence of local statutes on the particular subject. Local law takes precedent over English Law as a latter is mended to fill the gaps (lacuna) in the local system.

b)Only the part of English Law that is suited to local circumstances will be applied. The provision of Section 3 (1) of the Civil Law Act 1956. It state that the common law, rules of equity and statutes of general application shall be apply so far only as the circumstances of the state of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary.

The reason for this provision/proviso is that, in the nation of diverse races practicing a variety of custom and religions, importing the law from England in its entirely would be imposition of a totally alien system on a society quite different from English society.



E-Business Law - Tutorial 2

Question 1:

Describe the constitution, powers and jurisdiction of the High Court in Malaysia

Answer:

The High Court is headed by two chief judges, one in Malaya and one in Borneo (Sabah and Sarawak).

The jurisdiction of the High Court is original, appellate and supervisory. In the exercise of its original jurisdiction, it has unlimited criminal and civil power.

In the exercise of its appellate jurisdiction, the High Court has civil and criminal appeals from the Magistrate Court and the Session Court.

The High Court also possesses the power to refer any point of law arising in the appeal for the decision of the court of appeal if its feel that it is in the interest of public and it is of paramount important.

Under Section 35 (1) of The Court of Judicature Act 1964, the High Court has been conferred general supervisory powers and reversionary jurisdiction over all subordinate courts. When it appeals desirable, the High Court may call for the records of any proceeding in the subordinate courts whether civil or criminal at any stage of such proceeding and all proceeding will be state pending further order of the High Court.

The jurisdiction of the High Court must not be overlook as they hear majority of the appeal cases.

Question 2:

In 1995, Mr. Tan was granted a Rm150,000 housing loan facility by Bank Besar Bhd to finance the purchase of a house in Ipoh. The facility is secured by a charge over the land on which the house is build. Mr. Tan is now in area of four monthly instalments. Bank Besar Bhd wants to apply for order for sale of the land. Name and describe the court which is empowered to hear such an application.

Answer:

Subordinate courts in general have no power to hear matters related to land – Section 69 Subordinate Court Act 1948. The court having the jurisdiction to hear applications for orders for sale of land is the High Court (*Registered or Unregistered also falls under High Court). Here the High Court will be exercising its original jurisdiction and has the power to grant the order for sale.

Question 3:

Write notes on the Industrial Court.

Answer:

The Industrial Court exercise judicial or quasi judicial function. It is established to relief the ordinary court of their work to provide specialize adjudication. The Industrial Court is constituted under The Industrial Relations Act 1967 and deals with trade disputes.

It consists of the president appointed by YDPA and the panel of person appointed by the minister. Reference of law maybe made to the High Court. Published through the dispute may be represented by the lawyer but only with the concerned of the Industrial Court president.

*Credits goes to whongmun