BDAU2103

TABLE OF CONTENT
1.0

Introduction

3-4

2.0

Differences between public and private law

5-7

3.0

Two types of public law

3.1
Constitutional law
3.2
International law

8
9

Roles of public law in promoting justice

4.1
Constitutional

10

4.2

10-11

4.0

International

5.0

Conclusion

12

6.0

Reference

13

1.0 INTRODUCTION
Law is a system of rules and guidelines which are enforced through social institutions to
govern the subject. Law protects basic individual rights and freedom such as liberty, equality
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and freedom of speech. It prevents individuals in powerful position from taking an unfair
advantage of other people. Law ensures a safe and peaceful society, in which individual rights
are preserved. Certain governments have cruel laws, where police and armies arrests and
punishes people without a trial in the court. Law applies to every persons, public authorities,
governmental departments, private bodies, profit making organizations as well as nongovernmental organizations. Laws are made by the government specifically by the
legislature. It is exercise by the judiciary. The formation of the law is influenced by the
constitution either written or unwritten and the rights encoded therein. The law shape the
society, politics, and economic of the country. It serves as the mediator of relation between
people. Law can be divided into two which are civil law and criminal law. In criminal law it
deals with conduct that is considered harmful to society order and in which the guilty party
may be imprisoned or fined. While in civil law it deals with the resolution of lawsuits
between individuals or organisation. These resolutions seek to provide a legal remedy to
winning litigant.
Public law is a theory of law that governing the relationship between individual and the state.
Under this law there are several subdivision namely as constitutional law, administrative law,
criminal law, municipal law and international law. Beside that in other words public law are
those laws which regulate the structure and administration of the government, the conduct of
the government in its relations with its citizens, the responsibilities of government employees
and the relationships with foreign governments. Example in a murder case where Azizul
murdered Samdan. Therefore here Azizul has committed a crime which is against the State
(Kings law) R v Azizul.
Private law is a part if civil legal system which is part of the jus commune that involves
relationships between individuals such as the law of tort and the law of obligations. Private
law aims at giving compensation to person injured, to enable property to be recovered from
wrongdoers and to enforce obligations. It can be distinguished from public law which deals
with the relationship between both natural and artificial persons and the state including
regulatory statutes, penal law and other law that affects the public order. Beside that private
law is also concerned with matters that affect the rights and duties of individuals among
themselves. In general public involve interaction between the state and the general
population.

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2.0 DIFFERENCES BETWEEN PUBLIC AND PRIVATE LAW

DIFFERENCES

PUBLIC LAW
1. Law that determines
and

Regulates

regulates

the

organisation
functioning of states
2. Regulates the relation
of the state with the

Case filed by
Burden of proof

subjects
1. Government
1. "Beyond a reasonable
always

on

one another
2. Concern with the right and
duties of individuals to each
other under it
1. Private party
1. "Preponderance of evidence"

the

state/government.
1. A guilty defendant is
punished
incarceration

by
and/or

1. Private
involves

litigation
some

usually
type

of

compensation for injuries or

fines, or in exceptional

damages

cases, the death penalty.

disposition of property and

Crimes are divided into

other disputes.

two

broad

as

well

as

classes:

Felonies

How it works

relation of the citizens with

doubt": Burden of proof

is

Punishment

PRIVATE LAW
1. Law which regulates those

and

Misdemeanours.
1. Criminal law is the

1. Civil law deals with the

body of law that deals

disputes between individuals,

with crime and the

organizations, or between the

legal

two, in which compensation

punishment

criminal offenses.

of

is awarded to the victim.

As refer to the table above there are several differences between public and private.
The differences cover the aspect such as regulates, case filed by, burden of proof, punishment
and how it works.

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First differences between the public and private law are what the law regulates. This
difference we can see it very clear. Public law determines and regulates the organisation
function of states while private law is law that regulates those relations of the citizens with
one another. Not only that the public law also regulates the relation of the state with its
subjects while private law is concern with the right and duties to each other under it. Both of
the public and private law are taken separately in order to protect the freedom or liberty of the
individual from restriction or intervention by the state. Although we can see the law are the
different but the aims of the law is still the same that is to promote justice between each other.
Some argues agrees that in private sphere they are competitive in term of protecting
individual justice as compare to the public law that is more to the protecting right of the
individual with the one who govern them such as the state. In private sphere it fails to
promote the capitalist theory which is to engaged everybody and person in the state. As
compare to the private law, the public law is success in promote the capitalist theory because
as we can see from the law regulates their subject it does promote the cooperative relation
between the state and also the individual in the state.
Second differences in private and public law is the cases. In the private law a case
commences when a complaint is filed by a party which may be individual, an organisation, a
company or a corporation against another party. The party complaining called the plaintiff
and the party responding is called the defendant and the process called litigation. In the
private litigation the plaintiff is asking the court to order the defendant to remedy a wrong
and it is often of monetary compensation to the plaintiff. Different with public law, the cases
is filed by the government that usually referred as the state and represented by a prosecutor,
against a defendant. An individual can never file criminal charges against another person. In
other word an individual may report a crime but only the government can file public charges
in court. Crimes are activities punishable by the government and are divided into two broad
classes of seriousness: felonies having a possible sentence of more than one year
incarceration and misdemeanours having a possible sentence of one year or less
incarceration.
Third difference is punishment. Punishment is one of the notable differences between
public and private law. In the public law, criminal offences are punishable in the court of law
in Malaysia. Other than the Penal code there are specific legislations like the Dangerous
Drugs Act 1952, Firearms (increased Penalties) Act 1971, and Essential (Security Cases)
Regulations 1975 to govern special areas of the criminal offences with its own arrest, bail and
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sentencing procedures. It has to be noted that the basic rights of an individual are enumerated
in the Federal Constitution of Malaysia. As such there are essential procedures in law that
strikes the balance between protection of society against criminals as well as to uphold the
maxim that one is innocent until proven guilty. In case of public law a person found guilty
is punished by incarceration in a prison, a fine or in some occasions death penalty. Whereas
in private law the losing party has to reimburse the plaintiff the amount of loss whish is
determined by the judge and is called that criminal defendants have more rights and
protections than a civil defendant.
Last difference is how the system works. In the public law it deals with looking after
public interests. It involves punishing and rehabilitating offenders and protecting the society.
The police and prosecutor ate hired by the government to put the public law into effect.
Public funds are used to pay for these services. Is supposing you are the victim of the crime,
you report it to the police and then it is their duty to investigate the matter and find the
suspect. In most cases if a charge been properly presented and if there is evidence supporting
it the government not the person who complains the incident, prosecutes it in the courts. This
is called the public prosecutions. On the other hand, private law is about private disputes
between individuals or between an individual and an organisation or between organizations.
Private law deals with the harm, loss or injury to one party or the other. A defendant in a civil
case is found liable or not liable for damages while in public case defendant may be found
guilty or not as refer to the maxim that one is innocent until proven guilty.

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3.0 TWO TYPES OF PUBLIC LAW
3.1 Constitutional law
Constitutional law is the body of law which defines the relationship of different
entities within a state, namely, the executive, legislature and the judiciary. We
have to bear in mind that not all nation states have codified constitutions, though
all such states have a jus commune or law of the land that may consist of a variety
of imperative and consensual rules. These may include customary law,
conventions, statutory law, judge-made law or international rules and norms.
Constitutional law is focus more on the legal studies and research. Fro example,
most law students in the United States are required to take class in constitutional
law during first year and several law journals are devoted to the discussion of
constitutional issues. In the doctrine of the rule of law dictates that government
must be conducted according to law. Dicey identified three essential elements of
the British constitution which were indicative of the rule of law, knowingly as
absence of arbitrary power, equality before the law and the constitutional is a
result of the ordinary law of the land. The separation of power is often regarded as
a second limb functioning alongside the rule of law to curb the powers of the
government. In most modem nation states, power is divided and vested into three
branches: the executives, the legislature and the judiciary. The first and the second
are harmonized in the Westminster from of the government. In Malaysia the
constitution confers the legislative, executive and judicial powers of the federal
constitution on three different bodies which are established by the constitution
which are the parliament, the executive and the judicature. Legislative power is
the power to administer laws and carry out the business of government through
such bodies as government departments, statutory authorities and defences forces.
Judicial power is the power traditionally exercised by courts such as the conduct
of criminal trials and determining disputes in relation to such things as contracts
and motor accidents. Despite the structure of the constitution there is no strict
demarcation between the legislative and the executive powers of the federal
government. Only the parliament can pass acts, but these acts often confer on the
executives the power to make regulations, rules and by-laws in relation to matters
relevant to the particulars act. In addition in Malaysia constitution is above of all
law.
3.2 International Law
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With the onslaught of globalisation and the ever interconnected world that we are
in today, international law becomes the flavour of the month. The interest is
heightened by Malaysias territorial disputes with Singapore and Indonesia.
Discussion of any legal issues-particularly relating to human right will invite some
discussants to broach international instruments be it the conventional on the
elimination of all forms of discrimination against women or the more generic
instrument such as the universal declaration of human right 1948. The interest in
international law is reflected also in the curriculum development of law schools.
So far as our query permits, all law schools at public institutions of higher
learning have public international law as a compulsory subject. The sources of
international law are international conventions, international custom as evidence
of a general practice, general principles of law recognised by civilised nations and
judicial decisions and recognised writings of jurist. This list of source of
international law is used by the international court of justice, a principal organ of
the United Nations. The list is regarded as a complete statement of sources of
international law. Although the federal constitution of Malaysia proclaiming itself
as the supreme law but it does not say anything about the international law being a
source of law. It does not mean that the international law does not have place in
the constitutional. Malaysian courts have applied customary rules of international
law. For example in a pre-independence courts applied customary rules of
international law with regard to the validity of orders of courts administered by
the occupying forces. Similarly, actions of the occupying forces taking into
custody property of its enemy are legitimate and should be recognised by the
courts after the end of occupation. A treaty is any international written agreement
called by any name concluded between two or more states and governed by
international law. In order to bring a treaty into force, there must be ratification.
Generally, ratification involves the act of the state and formal exchange or deposit
of the instrument of ratification by the state. The state here refers to the federal
government of Malaysia. The formal exchange or deposit of the instrument shows
the consent of the states to be bound by the treaty. However, at the end of the day
the consent of the state to be bound depends on the provision of the treaty and the
intention of the parties. Thus, although a party did not sign a treaty, a state may
accept its provision nonetheless. This sometimes is referred to as accession.

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4.0 ROLES

OF

PUBLIC

LAW

IN

PROMOTING

JUSTICE

BASED

ON

EXPERIENCES
4.1 Constitutional law
a. Human rights
Human rights or civil liberties form a crucial of a countrys constitution and
govern the rights of the individual against the state. Most jurisdictions, like the
United States and France, have a codified constitution with a bill of rights. A
recent example is the charter of fundamental right of the European Union
which was intended to be included in the treaty establishing a constitutional
for Europe, which failed to be ratified. Perhaps the most important example is
the universal declaration of human rights under the UN charter. These are
intended to ensure basic political, social and economic standards that a nation
state or intergovernmental body is obliged to provide to its citizens but many
do include its government.
b. Legislative procedure
Another main function of constitutions may be to describe the procedure by
which parliaments may legislate. For instance, special majorities may be
required to alter the constitution. In bicameral legislatures, there may be a
process laid out for second or third readings of bills before a new law can
enter into force. Alternatively, there may further be requirements for maximum
terms that a government can keep power before holding an election.
4.2 International law
a. Regulates disputes among states
General Law of international law recognised by civilised states. This refers to
municipal jurisprudence that is applicable to states relations. In this way
international tribunals such as the international courts of justice, could borrow
for instance evidentiary and procedural rules from municipal jurisprudence to
regulate disputes among states. International tribunals may make use of
municipal private law in developing through analogies international law. The
international court of justice has constructed the requirement of file as soon
as possible an application to intervene made by the Philippines in the dispute
of Pulau Sipadan between Malaysia and Indonesia by referring to the concept
of sound administration of justice. Although the court did not refer
specifically to any state law, the procedural requirement is certainly analogous
to municipal administration of justice.
b. Human rights
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International law also functions in promoting human rights but in much bigger
aspect. This is because its affect several states. For example the Convention on
the Elimination of All Forms of Discrimination against Women (CEDAW) and
Universal Declaration of Human Rights 1948. Regardless of powerful of the
constitution of certain states yet the international law at some point have the
advantage over the constitution. Human right is very important that need to be
promoted by the international. This is because the human right can become the
big issues if not being promoted.

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5.0 CONCLUSION
In conclusion Law is a system of rules and guidelines which are enforced through
social institutions to govern behaviour. Laws are made by governments, specifically by
their legislatures. Public law is a theory of law that governs the relationship between the
state and the individual, who is considered to be either a company or a citizen while
private law involves relationships between individuals, or private relationships between
citizens and companies. It covers the law of obligations and the law of torts, which is
defined as follows: Firstly, the Law of Obligation organizes and regulates legal relations
between individuals under contract. Secondly, the Law of Torts addresses and remedies
issues for civil wrongs, not arising from any contractual obligation.
International law can refer to three things: public international law, private
international law or conflict of laws and the law of supranational organisation.
Constitutional and administrative law govern the affairs of the state. Constitutional law
concerns both the relationships between the executive, legislature and judiciary and the
human rights or civil liberties of individuals against the state. Most jurisdictions, like the
United States and France, have a single codified constitution with a bill of rights. A few,
like the United Kingdom, have no such document. A "constitution" is simply those laws
which constitute the body politic, from statute, case law and convention.
Both of constitutional and international are promoting human right as their roles in
promoting justice. Not only has that it also covered the ways to regulate the dispute
between the states and transparency in legislative procedures.

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6.0 REFERENCES
LL.B., LL.M. in International Law (Yangon), Ph.D. (IIUM), Associate Professor, Ahmad
Ibrahim Kulliyyah (Faculty) of Laws, International Islamic University Malaysia.
Federal Constitution of Malaysia, International Law Book Services, Kuala Lumpur.

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