CHAPTER 1 OVERVIEW OF CONSTRUCTION LAW Defining Law Written Law Unwritten Law Syariah Law
LESSON OUTCOME 1) To understand the fundamental of construction law 2) To identify the sources of law 3) To have an input on the principles categories of the sources of law
INTRODUCTION • It is a body of enacted or customary rules recognized by a community as binding (Oxford English Dictionary)
• John Austin defines ‘law’ as a command set by superior being to an inferior being and enforced by sanctions (punishments) • All rules to which people in any society conform, whether by custom or by enforceable governmental regulation (Sinha & Dheeraj, Legal Dictionary)
DEFINITION • Based on Article 160(2) of the federal constitution the word ‘law’ holds the meaning of: – ‘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 of law in the federation or any part thereof’
RULES OF LAW • The rule of law was based on the idea that laws should conform to a minimum standard of fairness (A.V. Dicey, Law of the Constitution, 1885)
– No person must be punished except for breach of the law – All persons are equal before the law irrespective of status or position – The rights or freedom of citizens are enforceable in the courts
CONSTRUCTION LAW • The law is one of the enabling mechanisms to provide for the management and regulation of the relationship between the parties to a technological endeavour. • The term “construction law” is now universally understood to cover the whole field of law which directly affects the construction industry and the legal instruments through which it operates (Prof. John Uff, 2003) • Construction law is neither a legal term of art nor a technical one. It is used to cover the whole field of law which, in one way or another, affects the construction industry (Harban Singh, 2002)
• The study of law in conjunction to building and civil engineering contract involves consideration of the following (Harban Singh, 2002); – The English law of contract and Tort – Local legislation which adds to or overrides the English law – Case law (precedent) – The terms of the particular contract (express or implied)
WRITTEN LAW
INTRODUCTION • Law made by Parliament and any subordinate bodies to whom Parliament has delegated power to legislate (Lee Mei pheng & Ivan Jeron Detta, Business Law, 2009)
• Where statute law and common law conflict, statute law will prevail • Once an Act of Parliament comes to existence, it will remains until it is repealed by latter Act
DEFINITION • Legal source of law refers to all that law that has been reduced to, or is present in the written form (Harbans Singh, 2005) • Written law refers to the law embodied in the Federal and state constitutions and in a code or a statute including subsidiary or delegated legislation (Rau & Kumar, 2008)
DEFINITION • Referring to Section 3 of the Interpretation Acts 1948 and 1967 (Act 388), “written law” is defined as: – The FEDERAL CONSTITUTION and the STATE CONSTITUTION – ACTS OF PARLIMENT and SUBSIDIARY LEGISLATION made thereunder – Ordinances and Enactments (including any federal or state law styling itself an Ordinance or Enactment) and subsidiary legislation made thereunder; and – Any other legislative enactments or legislative instruments ( including Acts of Parliament of the United Kingdom of Great Britian and Northern Ireland and Orders in Council and other subsidiary legislation made thereunder) which are in force in Malaysia or any part thereof
1) FEDERAL CONSTITUTION • It is the supreme law of the land as stated in Article 4(1) of the federal constitution: – “This constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency be void”
• A yardstick to measure the validity of laws. • Enshrines the basic/ fundamental rights of individuals • Comprises of sixteen parts and one hundred and eighty one articles (in addition to thirteen schedule)
• Covers a whole range of matters from fundamental liberties to religion legislative procedures, the judiciaries etc • Amendments only through a two third (2/3) majority of total number of members of the legislature
MALAYSIA
EXAMPLES • The name, States and territories of the Federation
• Relations between the Federation and the States
• Religion of the Federation
• Financial provision
• Supreme law of the Federation
• Elections
• Fundamental liberties • Citizenship • The Federation- the Yang diPertuan Agong, Rulers, the Executive, Federal legislature, legislative procedure • The States- Ruler and Yang diPertuan Negeri, Legislative Assembly
• The judiciary • Public Services • Special powers against subversion, emergency power • General and miscellaneous • Additional protection for States of Sabah and Sarawak • Temporary and transitional provisions • Saving for Rulers’ sovereignty, etc
2) STATE CONSTITUTION • Each state of the federation possesses its own state constitution • It allows the State to control over matters that was included in the Eight Schedule to the Federal Constitution and in the State list • Example: land, mines, native law, custom, ruler etc • A Menteri Besar or a Chief Minster heads the government and in Sabah and Sarawak, members of the Executive Council are known as State Minister
3) ACTS OF PARLIMENT • PARLIAMENT is empowered to make laws for the whole or any part of the Federation and also having the effect outside as well as within the Federation (Article 73 of the Federal Constitution)
• Laws are legislated by Parliament at federal level and various State Legislative Assemblies at state level. • Federal and State Legislature are not supreme – subject to the provisions set out in the Federal and State Constitutions.
• Article 44 of the of the Federal Constitution vests the legislative authority of Malaysia in Parliament, comprising of the YDPA and the two Houses of Parliament • Legislation is enacted by Parliament by introducing a Bill • It is being used as a means of abolishing, amending, enacting and codifying the law
• A law originates in the form of Bill and it has to be passed by both the Houses of Parliament and assented to by Yang di- Pertuan Agong • A Bill passed by one House only will not have any legal effect; Bowles v Bank of England (1913) • There are two main stages in the process Pre parlimentary and Parlimentary
Pre-parliamentary stage • The stage includes the proposal, consultation and drafting stage. • The proposals that may come from various sources have to be accepted in principle by the Cabinet.
Government proposal
Meetings between relevant government bodies
Drafting of bill by the parliamentary draftsperson
Cabinet approval of bill
Pre-parliamentary stage • The stage includes the proposal, consultation and drafting stage. • The proposals that may come from various sources have to be accepted in principle by the Cabinet. Source of proposal: 1) Election manifesto 2) Policy decisions of ministry 3) Recommendations of royal commissioners 4) Pressure group
Government proposal
Meetings between relevant government bodies
Drafting of bill by the parliamentary draftsperson
Cabinet approval of bill
Parlimentary stage • A Bill is introduced into Parliament by the Minister responsible for the subject matter. • When it has been passed, after debate and voting by the House of Representative it is referred to Senate where it goes through the same process.
First Reading
Minister introduce Bill in the D.R. / H.R The clerk of the dewan will read out the title of the bill
Second Reading
Debate on the general principles of the bill and voting
Committee Stage
Occurred in an informal manner. Detailed examination, amendments and report to D.R / H.R.
Third Reading
Senate
Debate on the general principles, correction of errors and further voting Any disagreement will be resolved by joint committee of both houses. Senate has no power to reject the bill, however has the ability to delay the passage of the bill.
Royal Assent
YDPA affixes Public Seal within 30days of presentation.
Publication
Act comes into force once it is published. Publication is done in the Federal Gazette
EXAMPLES • Arbitration Act 2005. • Architects Act 1967 (Revised 1973) Act 117. • Companies Act 1965 (Revised 1973 – Reprint 1988) Act 125. • Contracts Act 1950 (Revised 1974 – Reprint 1997) Act 563 & (Amendment) 1976 Act 136. • Drainage Works Act 1954 (Revised 1988) Act 354. • Environment Quality Act 1974 Act 127. • Fire Services Act 1988 Act 341. • Government Contracts Act 1949 (Revised 1973) Act 120.
• Housing Developers (Control and Licensing) Act 1966 (Revised 1973 – Reprint 1982) Act 118. • National Land Code 1965 Act 56/1965. • Occupational Safety and Health Act 1994 Act 514. • Sale of Goods Act 1957 (Revised 1989) Act 382. • Strata Titles Act 1985 Act 318. • Street, Drainage and Building Act 1974 Act 133. • Town and Country Planning Act 1976 Act 172. • Construction Industry Payment & Adjudication Act
4) SUBSIDIARY LEGISLATION • The Interpretation Act 1967 defines ‘Subsidiary Legislation’ as: – “any proclamation, rule, regulation, order, notification, by- law or other instrument made under any Ordinance, Enactment or other lawful authority and having legislative effect”
• Hence, ‘subsidiary legislation’ is defined as (LB Curzon, A Dictionary of Law) : – “Legislation made by some person or body (eg a minister or local authority) under authority delegated by Parliament under Statute. It may take the form of statutory orders in council departmental orders, regulations, and rules. Known as ‘subordinate legislation...”
• Due to time pressure, the legislature has a tendency to pass Acts of Parliament of general character and entrust an authorized person to give effect to these general provisions by means of specific regulations. • Subsidiary legislation made in contravention of either a parent Act of the Constitution is void • An exception to this rule is the proclamation of emergency under Article 150 of the Federal Constitution Eng Keock Cheng v Public Prosecutor [1966] 1 MLJ 18 (Federal Court)
• Reasons; 1)
Insufficient time to enact all the legislation, detailed in every aspect, required in modern society
2)
Highly technical- best left to experts
3)
Legislature not continuously in session and the procedures are cumbersome
• Examples; 1)
Uniform Building by Laws
2)
Parking by laws by state local government enactment
RECAP
UNWRITTEN LAW
INTRODUCTION • It constitutes the part of the local law that is not recognized as ‘written law’ in the Malaysian context. • It comprises of namely: 1)
Case law or judicial decisions of the superior court
2)
English Common Law and equitable principles as applicable in the local context
3)
Customs and usages that have been recognized as applicable by the Malaysian courts
1) CASE LAW • Case law may comprise Res Judicata, Ratio Decidendi and Obiter Dictum • It is a decision made by judges on written and unwritten law on relevant issues in actual cases that come up before them • It may bind others in similar dispute in the future • The decisions are the reported and can be sourced from Authorative Law Journals • Also known as Judicial Precedent
• Judges decided cases following a certain accepted principles termed precedents • Sources of law where past decisions of the judges create law for future judges to follow. • Generally, a judge is bound to follow the decision of a previous judge in similar circumstances. • A judge’s decision in an earlier and similar case constitutes a precedent, and if that precedent comes from a court superior in the hierarchy to the court in which the present case is being tried, that precedent must be followed.
• Precedents are decisions reached by their predecessors in earlier similar situations and are of the following types: 1)
Authorative Precedent (Binding Precedent)
2) Declaratory Precedent 3)
Original Precedent
4) Persuasive Precedent 5)
Distinguishing
6) Overruling
• The essence of this doctrine is called Doctrine of ‘Stare Decisis’ ie doctrine according to which previous decisions must be followed. • Two way operation: 1)
Vertical – bound by the prior decisions of a higher court.
2) Horizontal – bound by their own prior decisions and prior decisions of a court of the same level.
• If a precedent is ignored by lower court, that decision is considered wrong and will be overturned to a higher court.
FEDERAL COURT COURT OF APPEAL
HIGH COURT OF MALAYA
HIGH COURT OF SABAH & SARAWAK
SESSIONS COURT
SESSIONS COURT
MAGISTRATE’S COURT
MAGISTRATE’S COURT
2) FOREIGN CASES/ COMMON LAW • Foreign cases to cited in the local judgement and law reports is not uncommon • The usage of foreign cases is expressly permitted in accordance with and subject to the limitations imposed by section 3 and 5 of the Civil Law Act 1956 • ‘Foreign’ Cases are not binding on the local courts but are of mere persuasive authority
• Common Law referring to Section 3 of the Interpretation Acts 1948 and 1967 is defined as COMMON LAW OF ENGLAND. • Application of English Law in Malaysia is governed by the Civil Law Act 1956 Section 3(1): 1)
In Peninsular (or West Malaysia) apply the common law of England and the rules of equity as administered in England on 7th April 1956
2) In Sabah apply the common law of England and the rules of equity together with statutes of general application, as administered or in force in England on 1st Dec 1951 3) In Sarawak apply the common law of England and the rules of equity together with statute of general application as administered or in force in England on 12th Dec 1949
• A foreign case may be used only in the following situations: 1) Where there is a ‘lacuna’ 2) If a particular matter is covered by the local law but the provisions relating to it are not exhaustive 3) There exist Malaysian provisions but such provisions are unclear, the foreign cases may be used to remove any ambiguity or provide the necessary clarification
3) CUSTOM • Custom is defined as: – Long established practice considered as unwritten law (Curzon)
• Long standing practice or usage is binding on those within its scope. It is subsidiary source of law, though largely unimportant today (Vincent Powell Smith) • Article 160 of the Federal Constitution includes customs and usages having the force of law
• Types of customs: 1) Malay customary law namely adat pepatih (patrilineal) and adat temenggong (matrilineal) 2) Jainah bt Semah v Mansor bin Iman & Anor (1951) 17 MLJ 62 (HC)
3) Native customary law of the natives or indigenous people of Sabah and Sarawak which law applies only to these natives and is enforced by the native courts of the Borneo States 4) Residual Chinese and Hindu customary law that still survives to date 5) The Six Widows’ Case [1911] 12 SSLR 120
SYARIAH LAW
INTRODUCTION • Islamic law was the law of the land before the coming of British. • The Federal Constitution provides that states have the power to administer Muslim Law. • The courts which enforce Muslim Law are the Syariah Courts. • Muslim Law applies to Muslims only and does not apply to nonMuslims. • It is administered by a separate system of Syariah courts particularly in the areas of marriage, divorce, guardianship, inheritance and the like
• Three main authorities: 1) Majlis Agama Islam: Religion 2) Mufti: Islamic Law 3) Syariah: Justice
Genga Devi a/p Chelliah v Santanam a/l Damodram [2001]
RECAP
THANK YOU 1) Prepare a mindmap and submit via group forum 2) Discussion in the group forum