FACULTY OF ARCHITECTURE,

PLANNING AND SURVEYING

BARCHELOR OF QUANTITY SURVEYING
(HONS) AP224
(ASSIGNMENT 1)

COURSE CONSTRUCTION LAW I (BQS 457)

GROUP AP224 (2C)
PREPARED FOR MADAM SHARIFAH NUR AINA BINTI SYED ALWEE
PREPARED BY 1. FATIN AZIERAH BINTI APANDI
(2017465098)
2. AININ HUSNINA BINTI MOHD RIDZUAN
(2017626714)
CONTENTS

CONTENTS .......................................................................................... Error! Bookmark not defined.

INTRODUCTION ..............................................................................................................................................3

CHAPTER 1: THE SOURCES OF LAW .......................................................................................................6

CHAPTER 2: THE DIFFERENCE BETWEEN CRIMINAL LAW AND CIVIL LAW .......................9

CHAPTER 3: THE ADVANTAGES OF DOCTRINE OF JUDICIAL PRECEDENT ........................ 10

CHAPTER 4: THE DOCTRINE OF JUDICIAL PRECEDENT IN MALAYSIA COURTS .............. 11

CONCLUSION ................................................................................................................................................. 13

REFERENCES ................................................................................................................................................. 14

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 INTRODUCTION

It is important to be aware of the legal system in Malaysia, and as a Muslim country,

laws may differ from those of a western country. While it is impossible to be aware of every
law, it is useful to be aware of the most obvious.

The Malaysian Legal System is largely based on the British Common Law system as a
result of the colonization of the country by the British in the 19th century to the 1960s. The law
system is known as The Constitution of Malaysia which lays down the legal framework to protect
the citizens of the country. There are also individual state laws.

“Law” generally is the procedures and the rules of conduct or act which one uses one’s
every senses in order to harmonise the convenient of oneself and or another. Law includes
written law, the common law in so far as it is in operation in the federation or any part thereof,
and any custom or usage having the force in the federation or any part thereof. Law also is the
principles and regulations established in a community by some authority and applicable to its
people, whether in the form of legislation or of custom and policies recognized and enforced by
judicial decision. It includes any written or positive rule or collection of rules prescribed under the
authority of the state or nation, as by the people in its constitution. Compare by law, statute law.

For people to respect law and obey it, law must satisfy certain basic requirements,
namely, it must contain concepts such as freedom ,equality, justice and morality. A good law
is law that is just and fair. It means that the law should include justice as an important element.
Legal justice refers to the way in which the law is just and fair. It has been said that justice is
the ultimate aim of the law. The aims of law is to attain justice and to encourage the doing of
what is right or just in a particular set of circumstances. Peninsular Malaysia, Sabah and
Sarawak is one political unit but is not governed exactly the same set of laws. There are two
important links which are the Parliament and the Federal Court. Supreme law that applies
throughout the country is known as the Constitution of Malaysia. This federal law constitutes
legislation, courts, administrative aspects of law, powers of the government, the government
monarchy and rights of the citizens. In the Federal Constitution of Malaysia, Yang Di-Pertuan
Agong act as the head of country and divided into three main authorities, which are…

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 Yang Di-Pertuan Agong
Executive Authority Legislative Authority Judicial Authority

Prime Minister Chief

Parliament
Minister Judge

Senate
Government
House of Courts
Ministries Representative

Government
Departments Citizen

The executive involves in administering the nation and ensuring that government policy
will be carried out according to the law. The government departments which assist in
administering the nation are part of the executive. The duties must be done according to the
power granted by the law so that it will not be void and be held ultra vires or no effect.

The legislative will enact law so that administration could run smoothly. They cannot
interfere as to the administration carried out by the executive. Law will be enacted in
accordance with the interest of the citizens. Parliament will be the place where law will be
enacted and the voice of the people was heard through their representative.

Judiciary is the law which was enacted by the legislative will not only govern the people
but also the nation including the three government organ. If dispute arise as to whether certain
action contradict the law, then it might be challenge in court. The system of court is under this
organ plays an important role in determining as to whether action done is legal or illegal. The
judiciary will interpret the law enacted by the legislative and at the same time applies the said
law in arriving at their decision. All parties will be treated equally and the judiciary is free to
make judgements without coercion, fear or favour.

Constitution is the fundamental law of a state or nation. The constitution is the supreme
law of the federation and any law passed after Merdeka Day which is inconsistent with
Constitution shall, to the extent of the inconsistency be void. Other than that, parliament may

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 make laws for the whole or any part of the Federation and laws having effect outside a well as
within the federation. The legislature of a State may make laws for the whole or any part of
that state.

Last but not least, law can be classified into public and private law. Public law is the
relationship between individuals and the state. While private law is relationships between
individuals, such as the the Law of Contracts and the Law of Torts.

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1.0 SOURCES OF LAW

Sources of law means the origin from where the law or binding rules of human conduct
come into existence. Sources of law can be found in historical sources and legal sources. For
example, in statues, law reports, textbooks and decisions of courts. There are three sources
of law which are Written Law, Unwritten Law and Syariah Law.

The first one is Written Law. Written Law includes the constitution and the constitution
of any state.

The first one in written law is the Federal Constitution. The Federal Constitution is a
supreme law of Malaysia. Federal Constitution lays down the power of federal and state
governments. It provides the basic or fundamental rights of an individual. It applies to all state
in the federation. Constitution supremacy is maintained by giving to the superior courts the
power and duty to invalidate any legislative or executive acts.

Secondly, the Constitution of the State. It prescribes matter related to the Ruler, the
Executive Council, the Legislature, the Legislature Assembly, State employees and
amendment of the constitution and financial provisions. Each states in Malaysia has its own
individual constitution which provide for a single chamber Legislative Assembly in each state.

Besides, Legislation refers to laws enacted by a body constituted for this purpose. In
Malaysia, laws are legislated by the Parliament and the Legislature of the State. Moreover,
there are eight process of approving the bills. First, drafting the bills. Second, first reading
followed by second reading. It will proceed to committee stage. Fifth, third reading followed by
Dewan Negara. After that, Yang Di-Pertuan Agong will give his royal assent. Lastly,
publication.

The last one in Written Law is Subsidiary Legislation. Subsidiary Legislation made by
person or bodies under powers conferred on them by Acts of Parliament or State Assemblies.
There are four reasons to have this delegation. First, the legislature has insufficient time to
enact the legislation. Second, many modern legislations involve technical matters therefore
experts must be referred to. Third, when the laws need to be made or emended quickly. Lastly,
persons or bodies where powers have been delegated to them will have the authority to make
changes.

The second sources of law is Unwritten Law. Unwritten Law constitutes that part of the
local law that is not recognised as ‘written law’ in the Malaysian context.

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 The first one is Judicial Decision. Judicial decision is law can be created through
decisions made by judges of Superior Courts and Subordinate Courts.

SUPERIOR
COURT

SUB-
ORDINATE
COURT

There are a few situations where the court may not apply the earlier precedent can be
due to the judge Superior Court overruled the precedence decided by the lower court, the
earlier precedent was arrived at per incuriam and there are difference material facts between
the case established the precedent with the new one.

Other than that, English Law also used in Malaysia. The application of law of England
can only be subjected to two limitations which are with the absence of local statues on the
particular subjects, English Law is applied only to fill the missing part in Malaysian Legal
System and only English Law that suited local circumstances could be applied.

The last law in unwritten law is Customary Law. Custom is a rule of conduct which in a
given place and among given groups of persons has been followed for an appreciable time.
Custom from the local inhabitants such as family law and Adat in Malay community

Syariah Law is the last sources of law. Syariah law only applied to the Muslims. It is
sacred law of Islam as revealed by Prophet Muhammad SAW. It is totally based on God’s
commands on duties towards Allah and relationship of one Muslim with another. The main
sources of Syariah law is al-Quran and Sunnah. Al-Quran is the words of Allah while Sunnah
is rules deduced from the traditions such as saying or conduct of Prophet Muhammad SAW.

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The court will enforce the Islamic law are the Syariah Court for matters such as family matters,
marriage and divorce.

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2.0 DIFFERENCES BETWEEN CRIMINAL LAW AND CIVIL LAW

Civil law deals with the disputes between individuals, organizations, or between the
two, in which compensation is awarded to the victim. Criminal law is the body of law that deals
with crime and the legal punishment of criminal offenses.

Civil law deals with behavior that constitutes an injury to an individual or other private
party, such as a corporation. Examples are defamation includes libel and slander, breach of
contract and property damage. Criminal law deals with behavior that can be construed as an
offense against the public, society, or the state even if the immediate victim is an individual.
Examples are murder, assault and theft.

Based on jury opinion, in cases of civil law, laws vary by state and country. Juries are
present almost exclusively in criminal cases. Cases are initiated by a private party (the plaintiff).
Cases are usually decided by a judge punishment almost always consists of a monetary award
and never consists of imprisonment; to prevail, the plaintiff must establish the defendant's
liability only according to the "preponderance of evidence"; and defendants are not entitled to
the same legal protections as are the criminally accused. In the criminal justice system, the
jury must agree unanimously before a defendant is convicted. Cases are almost always
decided by a jury; punishment for serious (felony) charges often consists of imprisonment but
may also include a fine paid to the government.

Moreover, civil law’s case filed by private party while criminal law filed by government.
Furthermore, for the decision in civil law, defendant can be found liable or not liable, the judge
decides this. While in criminal law, defendant is convicted if guilty and acquitted if not guilty,
the jury decide this.

For the type of punishment, civil law is compensation, usually financial for injuries or
damages, or an injunction in nuisance. For criminal law, a guilty defendant is subject to
custodial (imprisonment) or non-custodial punishment (fines or community service). In
exceptional cases, the death penalty.

Last but not least, in civil law, either party (claimant or defendant) can appeal a court's
decision while in criminal law, only the defendant may appeal a court's verdict. The prosecution
is not allowed to appeal.

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3.0 ADVANTAGES OF DOCTRINE OF JUDICIAL PRECEDENT

There are many advantages to the doctrine of judicial precedent with one of the main
advantages being the ability to save time when making a decision on a case. If a Court is
already provided with an answer to a problem in which they face, it will not take as much time
to reach a reasoned conclusion. This is because the Court will not be required to analyse the
case and make a decision as they will already have the answer before them, which is a
significant benefit within the judicial process. An example how effective judicial precedent can
be is exemplified in the case of Hunter and Others v Canary Wharf Ltd and London
Dockland Development Corporation. Here, the Court did not have to form an original
precedent was could merely apply a previously established principle to the issue at hand.

Another advantage, which has already been mentioned, is the consistency between
cases. This strengthens the system and is also likely to reduce crime since those who are
aware of the consequences will be less likely to commit a criminal offence. Greater fairness is
also provided as cases with similar facts will be treated the same. This is of course unless
there is some further fact which is material to the decision as the Court will then be capable of
reaching a different conclusion.

Hence, injustice will also be prevented as it would certainly be unjust for different
outcomes to be reached in two cases with similar facts. This would be unfair and society would
most likely lose confidence in the justice system. Judicial precedent also prevents judges from
producing prejudicial decisions since a judge will often be bound to follow a previous decision
even if he disagrees with it. This is important in ensuring that the rulings of judges remain as
consistent as is reasonably possible so as to prevent confusion and unfairness.

Last but not least, another advantages is the ability to develop the law even further.
Making law in decided case provides an opportunity for growth and legal development and
ensures that the law is able to keep abreast with the continuous advances in society. Courts
are able to lay down legal rules and principles a lot quicker than Parliament and because there
are constant societal and technological advances, it is necessary that new legal rules and
principles can be established more conveniently.

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 4.0 DOCTRINE OF JUDICIAL PRECEDENTS IN MALAYSIA COURT

The practice of judicial precedent is found applicable in Malaysian courts and this has
been confirmed by Chang Min Tat F.J in public prosecutor v Datuk Tan Chang Swee(1980)2
MLJ 276-277, where the need for Federal court, the high court and other inferior courts in
Malaysia to follow the doctrine of judicial precedents was reaffirmed. The doctrine of judicial
precedents is operated in vertically and horizontally in Malaysian courts.

By vertical operation, it means the higher or superior court binds all courts subordinate
to follow its prior decisions. By way of operation the civil courts, decisions of the Federal court
bind all courts. In the case of Cooperative Central Bank v Feyen Development (1997), 2MLJ
829, the question arose as to whether it was permissible for an intermediate court like the
Court of Appeal in Malaysia to disregard judgment of the Federal Court. Delivering the
judgment of the Federal Court on this case, Edgar Joseph Junior, the Federal court judge,
adopted in an unequivocal term, the remarks of Lord Hailsham in Cassell v Broome (1972)
AC 1027, 1054 which expressed disapproval of the House of Lords for the court of appeal‘s
refusal to follow the House of Lord’s prior decision in Rookes v Barnard (1964) AC 1129.
Based on this, the Court of Appeal in Malaysia was reminded of its obligation to accept loyally
the decisions of the higher court (Federal Court) and the need not to allow itself to be reminded
to follow and apply the principles of judicial precedent in future.

By horizontal operation of judicial precedent, the Federal court, the court of appeal and
even the high courts in Malaysia are bound to follow their own prior decision and prior decisions
of a court of the same level, whether present or past. This can be seen in the civil matter of
Malaysia National Insurance v Lim Tiok. The Supreme Court had earlier decided this case
but the current issue was whether the Supreme Court’s decision should be reviewed or over
ruled. The Federal court eventually reviewed the prior decision of Supreme Court. The Federal
Court decided that the decision was wrongly decide. The Federal court of Malaysia over ruled
a decision of the supreme court of Malaysia. As far as the High Courts are concerned about
the practice of horizontal judicial precedent, The attitude and assumption of Malaysian High
Court Judges are that one High Court Judge is not bound by decision made by another High
Court Judge either of original or appellate jurisdiction. This was the position in the case of Ng
Hoi Cheu v Public prosecutor(1968) 1MLJ 53, where Justice Chang Min Tat did not follow
the decision of his contemporary Justice Smith while exercising appellate jurisdiction. Also, in
Joginder Singh v Public prosecutor the High court while exercising appellate jurisdiction
ruled that it would not follow the decision of High Court in an appeal presided over by three
judges. The above practice of High Court is observed to continue to exist unchanged under

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the Malaysian court system. Similarly, the court of Appeal in Malaysia over ruled High court’s
decision in Syarikat Kayu Bersata v OMW(Sarawak)(1995) and other cases which followed
it. By so doing, the court of Appeal has dropped the fact that it is bound by its own decision
and decision of other court of coordinate jurisdiction.

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CONCLUSION

Based on above discussion, the source of law have been examined and the civil law
and criminal law have been distinguished. Also, the benefits of judicial precedent as well as
the operation of doctrine of judicial precedent have been discussed. With growth, which
includes recent developments that have taken place naturally, the country's legal system
appears to have been restored into its earlier form to a system that existed before the British
influence. The system, however, is still developing. As such, whether the present two parallel
court system will remain or continue to develop on separate tracks is still unclear.
Constitutionally speaking the two parallel court system seems to be the direction. Nonetheless,
we have seen how exceptions have been created; such as the creation of the Islamic banking
bench in the civil courts. Similar development have taken place in the Shariah courts wherein
a federal shariah appellate system was created although the lower court remains at the hands
of the states. As a concluding remark, the law and the legal system must be designed to be
mutually advantageous to all the races and religious communities of the country. It must secure
the national order and ensure prosperity for the country.

The Malaysian legal system is a relatively young one, barely over half a century old.
The courts have had to deal with complex issues arising out of an evolving legal system over
the past 50 years, but there remains much to be developed. The next generation of the
Malaysian judiciary will need to continue to decide and clarify issues that will invariably arise
over the coming years. In order to do so, an independent and impartial judiciary is vital,
meaningful development of the legal landscape is dependent on respect for the separation of
powers on the part of the other branches of government as well. The evolution of the legal
landscape as Malaysia moves forward in the 21st century will hopefully be guided by an
approach that is true to the spirit of the Constitution and the safeguarding of the fundamental
liberties enshrined therein.

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https://www.slideshare.net/ainnabilarosdi/5-sources-of-law-lecture

https://en.wikipedia.org/wiki/Sources_of_law

https://www.britannica.com/story/what-is-the-difference-between-criminal-law-and-civil-law

https://www.diffen.com/difference/Civil_Law_vs_Criminal_Law

http://www.dictionary.com/browse/law

https://www.expatfocus.com/expatriate-malaysia-legal-system

Smith T. B (May 2015) The Doctrine of Judicial Precedent Retrieved on 27 May 2018 from

https://academic.oup.com/ajcl/articleabstract/2/2/255/2587109?redirectedFrom=fullte
xt

Noor Fadzhana (26th June, 2015) Doctrine of Judicial Precedent: How It Works? Retrieved

from https://prezi.com/ulby4qc4vgp9/doctrine-of-judicial-precedent-how-it-works/

Case survey: Donoghue v. Stevenson ( 1932 ). Retrieved from

http://lawgovpol.com/case- study-donoghue-v-stevenson-1932

Lim Mei Pheng, I. J. ( 2009 ) .Business Law.Oxford University Press.

Helen J.Bond, P. K. ( 1995 ) .Business Law.London: Blackstone Press.

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