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.