Source of Cyber Laws in Malaysia

Report
Source of
Cyber Laws
Cyber Law &
Islamic
Ethics
CICT3523
NEED FOR CYBER LAWS
 TACKLING
CRIMES
CYBER
 INTELLECTUAL
PROPERTY RIGHTS
AND COPYRIGHTS
PROTECTION ACT
Global Cyber Law Database (GCLD)
 Aims to become the most comprehensive and
authoritative source of cyber laws for all
countries (http://www.cyberlawdb.com).
 is a public service initiative by the Asian School
of Cyber Laws in India.
 Asian School of Cyber Laws is an innovative
and pioneering educational institution.
 Imparting knowledge and encouraging
development in the field of cyber law and
cyber crime investigation.
Source of Laws in Malaysia
 The
source of the Malaysian Law mean the
legal rules that make the laws in Malaysia.
 It can be classified into written and unwritten
law.
 Written law includes:


Federal Constitution.
State Constitution.
 Unwritten


law includes:
English law.
Islamic law.
Source of Cyber Laws in Malaysia
 The
Malaysian Government has
enacted several set of regulations.
 This is to deal with the problems and
crimes related to networked information
devices and technologies.
 Providing an inclusive
framework of societal and
commerce-enabling laws.
 Started early (1997).
Source of Cyber Laws in Malaysia. Cont..
 It
have to cover aspects regarding
security of information and network
reliability.
 Various topics had been covered by
the regulations such as:
 Intellectual
property.
 Freedom of expression.
 Copyright.
 Privacy.
Source of Cyber Laws in Malaysia. Cont..
 The
source of cyber law in Malaysian can be
classified into written and unwritten law.
 Written law includes:



Constitution.
Legislation.
Subsidiary legislation.
 Unwritten


law includes:
Foreign law.
Judicial precedent .
Malaysian Law
Written Law
Federal
Constitution
State
Constitution
Legislation
Subsidiary
Legislation
Unwritten Law
English
Law
Common
Law
Islamic Law
Judicial
Precedent
Equity
Custom
Written Law
It
is the most important source of
law.
It refers to that portion of Malaysian
law which includes the following:
1.
2.
3.
4.
The Federal Constitution.
The State Constitutions.
Legislation.
Subsidiary legislation.
The Federal Constitution
The
Federal Constitution is the
supreme law of the country so that
any general law that is inconsistent
with the Constitution is, to the
extent of the inconsistency, void.
Besides laying down the powers of
the Federal and State
Governments, the FC enshrines the
basic or fundamental rights of the
individual.
The Federal Constitution
These
rights written into the
Constitution can only be changed by
a two --thirds majority of the total
number of members of the legislature.
This is in contrast to normal laws which
can be amended by a simple
majority.
The FC establishes a constitutional
monarchy and a federal system of
government.
The Federal Constitution
 Under
the federal system, there is a division
of legislative powers between the central
Parliament and the State Legislative
Assemblies.
 Parliament may make laws for the whole of
Malaysia. Art. 74 FC provides that
Parliament may make laws with respect to
any of the matters enumerated in the
Federal List or the Concurrent List.
 The State Legislature may make laws with
respect to any of the matters enumerated
in the State List or the Concurrent List.
Federal List
Concurrent List
State List
1. External affairs
2. National
defense
3. Internal
security
4. Civil and
criminal law
5. Finance
6. Trade,
commerce,
industry
7. Education,
etc.
1. Social welfare,
social services,
protection of
women,
children and
young persons
2. Scholarships
3. Town and
country
planning
4. Drainage and
irrigation
5. National Parks,
etc.
1. Islamic law
and personal
and family law
of Muslims;
Malay Malay
customs,
offences by
Muslims;
Syariah Courts.
2. Land
3. Local
government
4. State holidays,
etc.
The State Constitution
 Each
State possesses its own constitution
regulating the government of that State.
 The State Constitution contains provisions
which are enumerated in the Eighth
Schedule to the Federal Constitution.
 Some of these provisions include matters
concerning the Ruler, the Executive
Council, the Legislature, the Legislative
Assembly, financial provisions, and
amendment of the Constitution.
Legislation
 Legislation
refers to law enacted by a body
constituted for this purpose.
 In Malaysia, laws are legislated by
Parliament at federal level and by the
various State Legislative Assemblies at state
level.
 Laws made by Parliament may extend
throughout the country and extra-territorially
while laws enacted by a State Assembly
can only apply to that State.
Legislation
Laws
that are enacted by Parliament
after 1946 but before 1957 are called
“Ordinances” but those made after
1957 are called “Acts” Acts.
Laws made by the SLA are called
“Enactments” except in Sarawak.
Parliament and the State Legislatures
have to enact laws subject to the
provisions set out in the Federal and
State Constitutions.
Legislation
The
subject matter for legislation is
divided between the Federal and
State Governments as provided by the
Ninth Schedule of the FC.
Legislature as a source of law has
become more important than case
law or precedents.
It is being increasingly used as a
means of repealing, amending,
enacting or codifying the law.
Subsidiary Legislation
SL
is also known as subordinate
legislation or delegated.
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.
Subsidiary Legislation
 SL
is very important as legislation by
Parliament and the State Legislatures is
insufficient to provide the laws required
to govern everyday matters.
 SL deals with the details about which
legislature has neither the time nor the
technical knowledge to enact law.
 Legislature merely lays down the basic
and main laws, leaving the details to
persons or bodies to whom they
delegate their legislative power.
Subsidiary Legislation
Such
persons or bodies include the
Yang di Pertuan Agong, Ministers and
local, authorities.
SL made in contravention of either a
Parent Act or the Constitution is void.
An exception to this rule is the
proclamation of emergency under
Article 150 of the FC.
Unwritten Law
It
is that portion of Malaysian law
which is not written i.e. law which is
not being enacted by Parliament or
the State Assemblies and which is not
found in the written Federal and State
Constitutions.
It comprises the following:
1.
2.
3.
Principles of English law.
Judicial decisions.
Customs.
English Law
English
law forms part of the Malaysian
laws. It can be found in the English
common law and rules of equity.
However, not all of England’s common
laws and rules of equity form part of
Malaysian law.
The application of English law in
Malaysia is governed by the Civil Law
Act 1956 (Revised 1972).
English Law
 However,
the application of English law
throughout Malaysia is subject to two
limitations;
1. It is applied only in the absence of local
statutes on the particular subjects. Local law
takes precedence over English law as the
latter is only meant to fill in the lacuna in the
legal system in Malaysia.
2. Only that part of the English law that is
suited to local circumstances will be
applied – proviso to section 3(1), Civil Law
Act.
Judicial Decision / Precedent
 Malaysian
law can also be found in the
judicial decisions of the High Court, Court of
Appeal and the Federal Court, and the
Supreme Court, Federal Court and the
Judicial Committee of the Privy Council.
 Decisions of these courts were made, and
still are being made, systematically by the
use of what is called ‘doctrine of binding
judicial precedent’.
 Precedents are basically decision made by
judges previously in similar situations.
Customs
 Customs
of the local inhabitants in Malaysia
are also a source of law.
 Generally, customs relating to family law,
i.e. marriage, divorce and inheritance, are
given legal force by the courts in Malaysia.
 In Sabah and Sarawak, native customary
laws apply in land dealings over native
customary lands and family matters where
natives subject themselves to native
customary laws.
Islamic Law
 The
Federal Constitution provides that States
have the power to administer Muslim Law.
 The head of the Muslim religion in a State
(except for Penang, Malacca, Sabah,
Sarawak and the Federal Territories, in which
the Yang di—Pertua Negeri is the head ) is
the Sultan.
 Muslim law applies to Muslims only and it
enforced by the Syariah Courts.

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