e-business law chpter 07

BAEB 301: BASIC LAW FOR E-BUSINESSCHAPTER 7: E-COMMERCE LEGAL ENVIRONMENT IN MALAYSIA

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Chapter 7: E-Commerce Legal Environment in Malaysia

Topic Outlines

7.0 Introduction of the Malaysian Legal System

7.1 The Concept of Law

7.2 Classification of Law

7.2.1 Public Law7.2.2 International Law

7.2.3 Private Law

7.3 The Sources of the Malaysian Law

7.3.1 Structure of Malaysian Legal System



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Topic Outlines

7.4. Written Law 7.4.1 The Federal Constitution 7.4.2 The State Constitutions

7.5 Unwritten Law

7.5.1 English Law 7.5.2 Malaysian Court Decisions 7.5.3 Customs 7.5.4 Islamic Law

7.6 Hierarchy of Courts



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Topic Outlines

7.7 The Jurisdiction of the Superior Courts

7.7.1 The Federal Court 7.7.2 The Court of Appeal 7.7.3 The High Court

7.8 The Jurisdiction of the Subordinate Courts in Malaysia

7.8.1 The Sessions Court 7.8.2 The Magistrates Court 7.8.3 The Penghulu Court



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Learning Outcomes

At the end of this chapter, students should be able to: Understand that Malaysian law refers to the law which regulates the

business activities of persons engaged in online transactions in Malaysia. Understand the sources of law in Malaysia. Appreciate the Malaysian Legal System and its dispute resolution

mechanism employed by the Malaysian Courts.

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Chapter 7: E-Commerce Legal Environment in Malaysia7.0 Introduction of the Malaysian Legal System

• The law seeks to provide a remedy to resolve legal problems.

• The purpose of this chapter is to introduce the concept of law as understood in Malaysia, classification of law and to outline the basic principles of the Malaysian Legal System.

• This chapter also highlights the jurisdiction and functions of the different courts in Malaysia.

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• Law is defined as a body of rules which are enforced by the state.

• Aim of Law: to attain justice in society; to maintain social order in society.

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• Civil wrong: a wrongful act or omission which infringes another person’s rights and the suffering party can seek a remedy in the court. Civil wrongs are between private citizens or organisations and do not involve the state.

• Criminal wrong: an unlawful act or omission and will be prosecuted by the state representative, the Public Prosecutor or the Attorney General in the court of law.

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• Malaysian Law can be classified in 3 broad ways:

i. Public law – regulates relationship between individuals and the state.

ii. Private law – regulates the rights and duties of individuals without involving the state.

iii. International Law: Public International Law and Private International Law

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• Public Law regulates relationship between individuals and the state.

• Public Law is subdivided into:-

(i) Constitutional law – lays down the rights of individuals in the state; and

(ii) Criminal law – punishes criminals and to deter crime which is a wrong against the State.

7.2.1 Public Law

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• International Law – a body of principles and rules of conduct which the states are bound to observe in dealing with each other.

i. International Law is subdivided into:-Public International Law – the law that regulates the rights and duties of states; and

ii. Private International Law – the law that guides a judge when dealing with foreign laws affecting a domestic case.

7.2.2 International Law

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• Private Law regulates the rights and duties of individuals in a state.

• Private Law is also known as civil law

• Examples of civil law:

i. Contract Law

ii. Law of Torts

iii. Company Law

iv. Partnership Law

v. Sale of Goods Law

7.2.3 Private Law

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7.3 The Sources of the Malaysian Law

• The Sources of the Malaysian law means the legal rules that represent the law in Malaysia

• Malaysian Law can be divided into:

i. Written Law

ii. Unwritten Law

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7.3 The Sources of Malaysian Law

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G overnm en tdepartm en ts

G overnm en tM in is tr ies

P rim e M in is terM in is ters

E xecu tive A u thority

c itizen

S enateH ouse of R epresen tative

P arliam en t

Legis lative A u thority

C ou rts

C h iefJudge

Judic ial A u thority

Y an g D i p e rtu an A g on g

7.3.1 Structure of Malaysian Legal System



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7.4 Written Law

• Written Law is an important source of Malaysian law.

• Written law can be found in:

i. The Federal Constitution

ii. The State Constitutions

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7.4 Written Law

• The supreme law of Malaysia (Article 4 of the Federal Constitution)

• The Federal Constitution enshrines the basic or fundamental rights of Malaysians.

• The Federal Constitution can only be changed by a 2/3 majority of the Parliament.

7.4.1 Written Law – The Federal Constitution

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7.4 Written Law

• 13 states in Malaysia comprising the Federation

• The State Constitutions contain the laws on matters regarding the Rulers of states, the Executive Council, the State Legislative Assemblies.

7.4.2 Written Law – The State Constitutions

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7.4 Written Law

• Federal Level : The Parliament makes law on matters listed in the Federal List and the Concurrent List.

• State Level : The State Legislative Assemblies make law on matters listed in the State List and the Concurrent List.


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7.4 Written Law

• Federal List - Federal Parliament to make laws regarding external affairs, defence, internal security, criminal and civil law, education, immigration, citizenship, transport and communications, labour and industrial relations, finance and tax, publications and broadcasting


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7.4 Written Law

• State List – State Legislative Assemblies to make laws regarding land, municipal matters, state public works, public health, drainage, irrigation and the religion of Islam.


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7.4 Written Law

• Concurrent List: under authority of both the Federal and State Governments, covers social welfare, scholarships, protection of wildlife and town and country planning. Should any inconsistency between federal and state law exist, federal law takes precedence over state law.


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7.4 Written Law7.4.2 Written Law – The State Constitutions

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State Structure

SULTAN

State Executive council • State legislative Assembly Shariah Court



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7.5 Unwritten Law in Malaysia

Unwritten Law in Malaysia can be found in:

i. English Law

ii. Judicial decisions of the Malaysian Courts

iii. Customs

iv. Islamic Law

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• Malaysian Judges have a choice whether to apply English Law or not.

• Application of English law must be consistent and suitable to local circumstances.

• Examples of Malaysian Law which have adopted English Commercial Law:

7.5.1 Unwritten Law in Malaysia – English Law

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• Examples of Malaysian Law which have adopted English Commercial Law:

a) Companies Act 1965

b) Partnership Act 1961

c) Bills of Exchange Act 1949.

d) Sale of Goods Act 1957

7.5.1 Unwritten Law in Malaysia – English Law

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• Judicial decisions from the Federal Court, the Court of Appeal and the High Court of Malaya

• Court decisions are made in a systematic

called the doctrine of binding judicial precedent. In Latin it is called the rule of ‘Stare Decisis’ – to stand by cases already decided.

7.5.2 Unwritten Law in Malaysia – Court Decisions

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• Doctrine of ‘Stare Decisis’ works in 2 ways:

i. Vertically - the decisions of the Federal Court and the Court of Appeal binds all the lower courts; and

ii. Horizontally –the Federal Court and the Court of Appeal are bound by their own decisions.

7.5.2 Unwritten Law in Malaysia – Court Decisions

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Courts in Malaysia recognise customs relating to family law i.e. marriage, divorce and inheritance as a source of law such as ‘Adat’ (Adat Perpatih and Adat Temenggung) applies to the Malays.

7.5.3 Unwritten Law in Malaysia - customs

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BUT after the Law Reform

(Marriage and Divorce) Act

1976 Hindu and Chinese

customary laws relating to

marriage are not recognised

by the courts in Malaysia.

7.5.3 Unwritten Law in Malaysia - customs

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• Islamic law is part of Malaysian Law. It applies to Muslims only on family matters and inheritance.

• After 31 Aug 1957 – Article 3 of the Federal Constitution says: Islam is the religion of the Federation but other religions can also be practised in peace and harmony.

7.5.4 Unwritten Law in Malaysia – Islamic Law

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• Art 11 (Except Muslims) Every Malaysian enjoys freedom of religion

• Islamic law is a personal law and is within the powers of the State.

7.5.4 Unwritten Law in Malaysia – Islamic Law

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7.6 Hierarchy of Courts

• The principle of binding precedents is based on the hierarchy of courts.

• The decisions of the higher courts will bind the lower courts and some courts are bound by their own decisions.

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7.7 Jurisdiction of the Superior Courts

Topics

(a) The Federal CourtThe Federal Court hears appeals from the Court of

Appeal.

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(b) The Court of AppealThe Court of Appeal hears appeals from the High Court relating to both civil and criminal matters.

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(c) The High Court



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• The Federal Court - the highest and final court of appeal.

• Hears Civil and Criminal appeal cases from the Court of Appeal and the High Court

• Hears disputes involving the Federal Government and the State Government.

7.7.1 Jurisdiction of the Federal Court

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• Hears Constitutional questions arising from a High Court Proceedings

• To give opinion of law referred to by the Yang Dipertuan Agong on the Federal Constitution

7.7.1 Jurisdiction of the Federal Court

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• The Court of Appeal : the 2nd Highest Court of Appeal.

• Hears civil and criminal appeal cases from the High Court.

• Hears civil cases where the claim is at least RM250,000.

7.7.2 Jurisdiction of the Court of Appeal

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• The High Court hears :-

i. Criminal cases (punishable with death)

ii. Civil cases (bankruptcy, land, injunction, specific performance)

iii. Criminal and civil appeal cases from the lower courts like the Magistrates’ and Sessions Courts

iv. To refer a question on a point of law to the Court of Appeal

7.7.3 Jurisdiction of the High Court

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7.7 Jurisdiction of the Subordinate Courts

Topics

(a) The Sessions CourtThe Sessions Court hears criminal cases (not punishable with death) and civil claims not

exceeding RM250000

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(b) The Magistrates’ CourtThe Magistrates’ Court hears minor criminal and

civil cases.

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(c) The Penghulu’s/Native’s Court

The Penghulu’s/Native’s Court hears civil claims not exceeding RM25 and criminal cases punishable

with a fine of RM50.



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• The Sessions Court hears :-

i. Hears criminal cases except those punishable with death

ii. Hears civil cases for claims not exceeding RM250000

7.8.1 Hierarchy of Courts – The Sessions Court

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Magistrates’ Court: • A subordinate court that is lower than

the Sessions Court which headed by a Magistrate.

• Hears minor civil and criminal cases.• Two Types of Magistrates• (A) 1st Class Magistrate• (B) 2nd Class Magistrate

7.8.2 Hierarchy of Courts – The Magistrates’ Court

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• 1st Class Magistrate hears :• Criminal cases – all criminal offences

punishable with maximum jail term of 10 years and below or punishable with fine only, e.g. robbery, house breaking at night, house-trespass etc.

• Civil Cases - civil claims not exceeding RM25000.

7.8.2 Hierarchy of Courts – 1st Class Magistrate

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• 2nd Class Magistrate – has power to try all criminal offences punishable with maximum jail term of 12 months and below or criminal offences punishable with jail term of 6 months of less; a fine of RM1000 or less; and any sentence combining any of the above.

7.8.2 Hierarchy of Courts – 2nd Class Magistrate

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• To hear civil claims not exceeding RM50 and all parties are Asian and can speak the Malay Language.

• To hear criminal cases punishable with a fine of RM25

• Any Asian brought before the Penghulu Court can choose to be tried by a Magistrates’ Court.

7.8.3 Jurisdiction of the Penghulu Court

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