CSM80003

CSM80003
Construction Law
Legal Systems and Principles 1
Dr. Jibril Bamgbade

jbamgbade@swinburne.edu.my
DULN004(Q) KP(JPS)5195/IPTS/1144 05 June 2004 Co. No. 497194-M

Why Master of Construction Management?

12 Chosen Units
1. CSM80006 Engineering Project Management * (Sem 2)
2. RSK80004 Introduction to Risk and Due Diligence * (Sem 2)
3. CSM80002 Environmental Sustainability in Construction (Sem 2)
4. CSM80005 Engineering Project Control (Summer)
5. CSM80008 Location-based Management for Construction (Summer)
6. CSM80003 Construction Law * (Sem 1)
7. MME80001 Resource Planning and Management * (Sem 1)
8. ICT80011 Research Methods (Sem 1)
9. CSM80009 Procurement and Risk Management in Projects (Winter)
10. RSK80006 Risk Management (Winter)
11. MME80003 Maintenance Management of Engineering Assets (Sem 1 or 2)
12. CVE80001 Research Paper (Sem 1 or 2)
* Offer as Electives for UG Engineering Students

Knowledge and Skills (Total 12 Units)
Research Foundation
(2) (3)
Electives Technical
(3) (4)

Knowledge, Skills & Applications
Projects… (sustainability, operations, planning, control, etc.)
Risks… (safety, procurement, modeling, law/ contracts, etc.)
Research… (problem solving, analytical, documentation,etc.)
Others… (case studies, software/tools, presentation, writing, etc.)

Perks
15%
Alumni
Bursary
Total 1.5 Weeknights

&
Years Weekends
What Else?
4 Units as
2 Short UG
Terms Electives
3 Long
Semesters

Need more information?
http://www.swinburne.edu.my/course
s/master-of-construction-
management.php
Click here!

Need more information?
Office: E207
Email: nhwong@swinburne.edu.my
Direct: +60 82 260 935
Mobile: +60 14 699 0716

Intended Learning Outcomes
• Describe the need for law in the society

• Analyze the legal roots in Malaysia
• Apply the knowledge of Malaysian legal
system
Law in Dictionary

Law Definitions
 The body of enacted or customary rules recognized by a community
as binding.
 Law is a set of rules that plays an important part in the creation and
maintenance of social order.
 Law consists of the rules recognized and acted on by courts of justice.
 Law may be defined as a body of rules, which are enforced by the

state.
 John Austin’s definition: Law is a command issued from a Sovereign

power to an inferior and enforced by coercion.
 Sir John Salmond’s definition: Law is the body of principles recognised

and applied by the State in the administration of justice.

Other importance of law
 Law has certain functions in society. Apart from ensuring order it
satisfies social wants — expresses the values and convictions of a
given society. As a consequence, law is an indispensable mechanism
for the creation and maintenance of peace and stability in society. In
order to be effective the law has to be representative; it should not be
something that is imposed on society.
 It should not bring in values that are alien or unacceptable to society.

Apart from that, the law is subject to changes, especially when society
changes — social changes are inevitable, and they are a feature of the
modern states. Indeed, laws are changed to meet the new needs and
requirements of society and law is a response to social ‘demands’ —
laws are shaped by the society in which they are applied

Legal Symbol
Lady Justice, a goddess symbolising justice who

bears a sword:
 SWORD symbolising the coercive power
of a tribunal
 SCALES representing an objective
standard by which competing claims are
weighed
 BLINDFOLD indicating that justice should
be impartial and meted out objectively,
without fear or favour and regardless of
money, wealth, power or identity

Laws Variations
Criminal
Family
Business
Constitutional
Corporate

Legal Roots
Simpson (1988) and Aun (2009)
“Legal systems do not emerge

out of nothing; they possess a
history, and reflect ideas, and
make use of institutions,
which have developed over
time, and been moulded by
cultural and political forces”
(Simpson 1988; Aun, 2009).

Legal Roots
 Since the early 14th century, there were early Malay Sultanates in the
area of current Malaysia. The most well-known was the Malacca
Sultanate. The British set foot on the area during the late 18th century
to the early 19th century. Prior to the British, the Portuguese and
Dutch were here. The country was occupied by Japan from 1942 to
1945.
 When the Japanese lost in the second World War, the British came
back to Malaya and formed the Federation of Malaya 1948, which
became independent in August 1957. Malaysia was formed in 1963
when the former British colonies of Singapore and the East Malaysian
states of Sabah and Sarawak on the northern coast of Borneo joined
the Federation. Singapore was asked to leave Malaysia in 1965.

Colonial Roots
 Melacca
 Penang
 Singapore
 Sarawak and Sabah

Legal Pluralism

The Constitution
Aun (2009)
Classification of Law
According to Pheng (2005), common law is classified
into three broad divisions, namely, public law,
international law and private law.

Public Law
• Public law is the law which governs the
relationship between individuals and the
State.
• It may be further subdivided into two
categories:
 Constitutional law; and
 Criminal law.

Public Law – cont.
• Constitutional law lays down the rights of individuals in
the State. It deals with questions such as supremacy of
parliament and the rights of citizens. It also covers areas
dealing with state and federal powers.
• Criminal law codifies various offences committed by
individuals against the State, for example, murder, robbery,
cheating and rape. A crime is a wrong against the State.
Thus, the punishment is inflicted by the State and the
proceedings are brought by the public prosecutor. It aims
at punishing criminals and suppressing crime.

International Law
• This is a body of law which is composed, for its greater part, of
principles and rules of conduct in which the State itself feels
bound to observe, and consequently commonly does observe,
in their relation with each other.
• International law can be subdivided into:
o Public international law and
o Private international law.
• The former (public international law) is the law that prevails
between States whereas private international law is part of
municipal law, as a result of which in every country there will
be different versions. It consists of the rules that guide a
judge when the laws of more than one country affect a case.

Private Law
• Private law governs the relationship between individuals. It
is concerned with their rights and duties.
• Basically, private law is intended to give compensation to
the person injured, to enable property to be recovered from
wrongdoers and to enforce obligations.
• Examples of private law are:
o laws of contract,
o laws of tort and trust,
o family law and
o property law.

Law of Tort
 Torts are based on obligation imposed by law (legal obligations). A
tort is a civil wrong. It is the breach of a general duty, which is
imposed by the law (and not agreed between parties). It is
remediable by a civil action for unliquidated damages.
 A trust is an equitable obligation binding a person (who is called a

trustee) to deal with property over which he has control (which is
called trust property) for the benefit of persons (who is called
beneficiaries) of whom he may himself be one and any one whom
may enforce the obligations.

Sources of Malaysian Law
• Being a democratic, multi-ethnic, multi-cultural, multi-linguistic and pluralistic
nation, it is understandable why sources of Malaysian laws do not come from a
single source.
• Malaysian laws comprise both the written and unwritten law. A reference to the
unwritten law does not mean that the law is literally unwritten. It actually refers to
cases decided by the courts and local customs.
• Written law, on the other hand, refers to the law embodied in the Federal and State
Constitutions and in a code or a statute, including subsidiary or delegated
legislation.
Main Sources:
 Written Law
 Unwritten Law
 Islamic Law
These are illustrated in the Figure overleaf:

Sources of Malaysian Law

Written Law
The written law comprises of:
1. The Federal Constitution (FC), which is the supreme law
of the land, together with the respective constitutions
of the thirteen states comprising the Federation;
2. Legislation enacted by Parliament and the State
Assemblies under the powers conferred to them by the
respective constitutions; and
3. Subsidiary or delegated legislation made by persons or
bodies under powers conferred to them by Acts of
Parliament or Enactments of State Assemblies.

Written Law – cont.
 where statute law and common law
conflict, statute law will prevail to the
extent of the conflict
 when hearing cases, the courts are not just
performing an act of fact-finding; they also
interpret statutes

 in interpreting statutes, courts are guided
by:
a) Interpretation Acts
b) Extrinsic materials
c) Common law rules of statutory interpretation
d) Precedent
 courts interpret legislation to reflect the
apparent purpose or intention of the
legislators (a ‘purposive’ construction)

 if the words of the Act are clear, effect must be given
to them notwithstanding that the end result may be
absurd
 courts use extrinsic (external) material in the
interpretation of statutes:
– some statutes set out their own definition or
interpretation
– common law rules of statutory interpretation and
precedent

 3 main approaches to interpretation used by
the courts:
1. Literal or plain meaning approach
2. Golden rule approach
3. Mischief approach

Literal Approach
 courts assume that the meaning and
intention of the legislature is clear in
the statute to be interpreted
 disadvantage – words can often have more
than one meaning, so the courts have to
decide which approach should apply
 the whole Act is read and understood
before a detailed examination of a section,
or of particular words in a section, is begun

Golden Rule Approach
 takes the plain meaning of the words
used in the statute and adheres to that
meaning
 only a gloss of the literal or plain meaning rule
 where the words in an Act are at variance with
the legislators’ intention or can lead to an
absurdity, injustice or repugnancy, the court will
attempt to choose a meaning that will avoid such
a result.

Mischief Approach
 where the literal interpretation is not
possible, courts will:
1. Look at the law before the statute was passed
2. Look to the overall intention of the legislation as
discovered from reading the Act as a whole
3. Ask: What mischief is it that this statute is intended
to remedy? What was its social purpose?

Federal Constitution
 supreme law of the land
 applies to all States in the Federation
 laying down the powers of the Federal and
State Governments
 enshrines the basic or fundamental rights of
the individual

State Constitution
 each State possesses its own constitution
 contains provisions which are enumerated in
the Eighth Schedule
 Federal Constitution
 some of these provisions include matters
concerning the Ruler

State Constitution – cont.
 the Executive Council, the Legislature, the
Legislative Assembly, financial provisions,
State employees, and amendment to the
Constitution
 if such essential provisions are missing, or if
any provision is inconsistent with them,
Parliament may make provision to give effect
to them or to remove any inconsistencies, as
the case may be – Article 71, Federal
Constitution

Legislation
 law enacted by a body constituted for this
purpose
 legislated by Parliament at federal level and
by the various State Legislative Assemblies at
state levels
 laws that are enacted by Parliament after
1946 but before Malaysia’s Independence in
1957 – Ordinances
 those made after 1957 – Acts
 laws made by the State Legislative Assemblies
(except in Sarawak) - Enactments
 laws in Sarawak – Ordinances

Subsidiary Legislation
 Law made by persons or bodies under powers
conferred on them by Acts of Parliament or
State Assemblies, for example, rule, regulation,
bye-law and order.
 Deals with the details about which the
legislature has neither the time nor the technical
knowledge to enact
 if made in contravention of either a parent Act
or the Constitution is void – an exception to
this rule is the proclamation of emergency under
Act 150 of the Federal Constitution.

Unwritten Law
 Portion of Malaysian law which is not
written, and comprises:
1. English law
2. Judicial decisions
3. Customs

Principles of English Law
 Principles of English law applicable to local
circumstances;
• From the time of British colonisation, English law has
been accepted as the law of general application and
customary laws were accommodated in the legal system
by way of exceptions (Ong Cheng Neo v. Yeap Cheah
Neoh, 1872).
• While English law is currently being replaced by local
laws, its importance in some areas will remain for a long
time, particularly in the area of commercial law;

Judicial Decision
 Malaysian law can also be found in the judicial
decisions of the High Court, Court of Appeal and
the Federal Court, the then Supreme Court and the
Judicial Committee of the Privy Council
 decisions of these courts were made and still are
being made by the ‘doctrine of binding precedent’

Precedent
 is basically a judgment or decision of a court of law
cited as an authority for the legal principle embodied
in its decision
 may comprise:
– res judicata – final order of the court binding the
immediate parties to the decision
– ratio decidendi – the reason for the decision
– obiter dictum (sayings by the way) – no binding power,
although it can exercise an extremely strong influence in a
lower court, and even in a court of equivalent standing,
depending on the court and the judge

Precedent
 following a precedent’ means that a question should be
resolved in a certain way today because a similar question
has been so decided before
 this process of following an established procedure is called
stare decisis which literally means ‘to stand by a decision’
Advantages of precedents:
– It promotes consistency, coherence and certainty
– It promotes efficiency and justice, ensuring equality and
fairness

Precedent
 disadvantages of precedents:
◦ Certain precedent may not be relevant in today’s
circumstances, but the judge may have to nevertheless
follow it
◦ It may also be slow in responding to community changes and
it is cumbersome to change them as they may require an Act
of Parliament.
In a p p l y i n g binding precedents, Malaysian law can be
found in the judicial decisions of the High Court, Court of
Appeal and the Federal Court and the then Supreme
Court, Federal Court and the Judicial Committee of the
Privy Council.

Precedent
 decisions of these courts were made, and are stillbeing
made, systematically by the use of what is called the
‘doctrine of binding judicial precedent’
 in the case of a binding precedent (the ratio decidendi of an
earlier case decision), each court is bound by the decisions
of courts of the same level or higher than it, in the same
hierarchy of courts
 if a judge applies an existing rule of law without extending
it, his decision may be called a declaratory precedent
 if the case before a judge is without precedent, then the
decision made by him may be called an original precedent

Islamic Law
 Article 3(1) of the Federal Constitution made provision that
Islam is the religion of the country but other religions may be
practiced in peace and harmony in any part of the Federation.
 The freedom of religion is clearly highlighted in Article 11 of the
Federal Constitution which provides that every person has the
right to profess and practise his religion.
 Article 160(2) expressly defines Malays as a person who
professes the religion of Islam but not all Muslims are
necessarily Malays.

Islamic Law
 Islamic law is recognised as one of the sources of Malaysian law (applicable
only to Muslims, regardless of race).
 It is also administered by a separate system of Syariah courts (Islamic
courts) at state levels and in the Federal Territories of Kuala Lumpur and
Labuan.
 However, many areas of this law have been altered to cater to the needs of
the Muslim community. The Federal Constitution Ninth Schedule, List II
only enumerates personal and family law of persons professing Islam as a
state matter, thus placing them within the jurisdiction of the Syariah
courts.
 The Malaysian government has been given Islam a modern face by
establishing institutions such as the Islamic bank. It has also encouraged
other Islamic business practices such as Islamic insurance and finance.

Historical landmarks
 According to Rau and Kumar, (2005), other than the sources of law identified
earlier, the historical landmarks such as the MacMicheal Treaties (1945),
Malay Union proposals (1946), Federation of Malaya Agreement (1948), Reid
Commission Report (1957), Federation of Malaya Constitutional Proposals
(1957), Cobbold Commission Report (1962), Malaysia Agreement (1963),
Twenty Points Declaration (1963) and Rukun Negara (1970) are also
important in the development of the Malaysian constitution.
 These documents do not have the status of law but they assist in the
understanding of the reality of Malaysian law today and to interpret the
historical perspective of the law.

Hierarchy of Judiciary in Malaysia

Court Hierarchy – Federal Court
• The Federal Court consists of a president of the court (to be styled
the “Chief Justice of the Federal Court”), the President of the Court of
Appeal, the Chief Judge of the High Court in Malaya, the Chief Judge
of the High Court in Sabah and Sarawak and seven other Federal
Court Judges.
• The proceedings before the Federal Court will be heard and disposed
of by a panel of three judges, or such greater uneven number of
judges as nominated by the Chief Justice.

Federal Court - Jurisdiction
• The Federal Court is vested with original, appellate and advisory
jurisdiction. Article 121(2) of the Federal Constitution provides that
the Federal Court shall have:
a. Jurisdiction to determine appeals from decisions of the Court of
Appeal, of the High Court or a judge thereof;
b. Such original or consultative jurisdiction as it is specified in Article
128 and 130; and
c. Such other jurisdiction as may be conferred by or under federal
law.

Court Hierarchy – Court of Appeal
 Court of appeal (Mahkamah Rayuan) was established in
1994 under Article 121 (1b) Federal Constitution and has its
principal registry in Kuala Lumpur.
 The Court of Appeal consists of a chairman (to be styled
the “President of the Court of Appeal”) and ten other
judges. The jurisdiction of the Court of Appeal is limited
only to appellate jurisdiction, both in criminal and civil
appeals. Sections 50(1) and 67(1) of the Courts of
Judicature Act 1964 (Act 91) provides for the jurisdiction to
criminal and civil appeals.

Court of Appeal – cont.
 In Section 68(1), no appeal shall be brought to the Court of
Appeal in any of the following cases:
a. Where the amount or value of the subject matter of the claim
(exclusive of interest) is less than RM250,000 except with leave of
the Court of Appeal;
b. Where the judgment or order is made by consent of parties;
c. Where the judgment or order relates to costs only which by law
are left to the discretion of the court, except with leave of the
Court of Appeal; and
d. Whereby any written law for the time being in force, the judgment
or order of the High Court is expressly declared to be final.

Court Hierarchy – High Court
Below the Court of Appeal, there are two High Courts of equal and
coordinate jurisdiction and status, namely:
• the High Court in Malaya, which has its principal registry in Kuala
Lumpur, and
• the High Court in Sabah and Sarawak, which has its principal registry at
such places in the States of Sabah and Sarawak as the YDPA may
determine. By virtue of Article 122AA of the Constitution, the Chief
Judge of Malaya (formerly known as Chief Justice of Malaya) and the
Chief Judge of Sabah and Sarawak (formerly known as the Chief Justice
of Borneo) are respective heads of the High Court in Malaya and the
High Court in Sabah and Sarawak.
 Criminal cases: The high court has jurisdiction to hear cases which
carry the death penalty
 Civil cases: It has the jurisdiction to hear cases in respect of divorce,

admiralty & bankruptcy and company cases.

Court Hierarchy – Sessions Court
 Criminal – all offences other than offences punishable with death.
 Civil Cases:
• In civil jurisdiction, Sessions Court have unlimited jurisdiction to try

all actions and suits of a civil matter in respect of motor vehicle
accidents, landlord and tenant and distress, and jurisdiction to try
all other actions and suits of a civil nature where the amount in
dispute or the value of the subject matter does not exceed
RM25,000.

Court Hierarchy – Sessions Court
 Exceptions to civil jurisdiction of Sessions Courts are provided in section 69 of the
Subordinate Courts Act 1948, as follows:
a. Relating to immovable property (except those provided in sections 70 and
71);
b. For the specific performance or rescission of contracts;
c. For an injunction;
d. For the cancellation or rectification of instruments;
e. To enforce trusts;
f. For accounts;
g. For declaratory decrees, except in interpleader proceedings under section
73;
h. For the issue or revocation of grants of representation of the estates of
deceased persons or the administration or distribution thereof;
i. Wherein the legitimacy of any person is in questions; and
j. Except as specifically provided in any written law for the time being in force,
wherein the validity or dissolution of any marriage is in question.

Court Hierarchy – Magistrates Court
 There are two classes of magistrate:
o First Class Magistrate and
o Second Class Magistrate.
 No person shall be appointed to be a First Class Magistrate unless he is a
member of the Judicial and Legal Service of the Federation.
 The YDPA may appoint any fit and proper person to be a First Class
Magistrate in and for the Federal Territory, and the State Authority may on
the recommendation of the Chief Judge, make the appointment in and for
the State.
 A First Class Magistrate (under its criminal jurisdiction) may try all offences
for which the maximum term of imprisonment provided by law does not
exceed 10 years imprisonment or which are punishable with fine only and
offences under sections 392 and 457 of the Penal Code.

Magistrates Court – cont.
 In West Malaysia, a First Class Magistrate shall have jurisdiction to hear and
determine criminal appeals by persons convicted by a Penghulu’s Court
situated within the local limits of his jurisdiction. A First Class Magistrate
may pass any sentences allowed by law not exceeding:
a. Five years imprisonment;
b. A fine of RM10,000;
c. Whipping up to 12 strokes; or
d. Any sentence combining any of the sentences aforesaid.
 A First Class Magistrate, in its civil jurisdiction, shall have power to trial all
actions and suits where the amount in dispute or value of the subject
matter does not exceed RM25,000 and hear civil appeals from Penghulu’s
courts.
 A Second Class Magistrate shall only have jurisdiction to try original actions
or suits of a civil nature where the plaintiff seeks to recover a debt or
liquidated demand in money payable by the defendant, with or without
interest, not exceeding RM3,000.

Chaos ?
Without rules there is chaos. We will wreak havoc if we do

This argument is saying that not have guidelines by which
without the presence of rules to live by. Rules are the way of
we as a society have no our society knowing what is
moral ways of keeping right and wrong, fair and
ourselves in check. unfair.

THANK YOU

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Dr. Jibril Bamgbade

DULN004(Q) KP(JPS)5195/IPTS/1144 05 June 2004 Co. No. 497194-M

DULN004(Q) KP(JPS)5195/IPTS/1144 05 June 2004 Co. No. 497194-M

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DULN004(Q) KP(JPS)5195/IPTS/1144 05 June 2004 Co. No. 497194-M

Projects… (sustainability, operations, planning, control, etc.)

Risks… (safety, procurement, modeling, law/ contracts, etc.)

Research… (problem solving, analytical, documentation,etc.)

Others… (case studies, software/tools, presentation, writing, etc.)

DULN004(Q) KP(JPS)5195/IPTS/1144 05 June 2004 Co. No. 497194-M

Total 1.5 Weeknights

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• Describe the need for law in the society

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 Law consists of the rules recognized and acted on by courts of justice.

 Law may be defined as a body of rules, which are enforced by the

 John Austin’s definition: Law is a command issued from a Sovereign

 Sir John Salmond’s definition: Law is the body of principles recognised

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 It should not bring in values that are alien or unacceptable to society.

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Lady Justice, a goddess symbolising justice who

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“Legal systems do not emerge

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 Sarawak and Sabah

Simpson (1988) and Aun (2009)

Simpson (1988) and Aun (2009)

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 A trust is an equitable obligation binding a person (who is called a

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