.
In this country, the rules that make up the laws of Malaysia originate from various
sources which later can be divided into written and unwritten law. As for the English
law
English Law, both statutory and case law, has been received in Malaysia. This
process is sometimes referred to as the doctrine of reception whereby some law in
this instance, English Law, is received or introduced into a territory not previously
subject to English Law. The English Law can be defined in the Article 160 of The
Federal Constitution Constitution which includes ‘the common law in so far as it is in the
operation in the federation or any part thereof’ which eventually qualify the English
law to be applicable in Malaysia. It later being defined in the Section 3 of Civil Law
Act 1956(Act 67)(Revised 67)(Revised 1972)(CLA1956) which explains the English Law as ‘the
common law of England and the rules of Equity and in prescribed circumstances,
English statutes.
During the arrival of British colonization in Malaysia, it is naturally enough that they
may bring with them the only cultural and legal traditions they knew. When Malaysia
was formed in 1963 there were 3 separate statutes authorizing the application of
English Law. They are:
a) The CLO 1956 in Peninsular Malaysia
b) Application of Laws Ordinance 1951 in Sabah
c) Application of Laws Ordinance 1949 in Sarawak.
However, after the formation of Malaysia, The CLO 1956 was extended to Sabah
and Sarawak by the Civil Law Ordinance (Extension) Order 1971 with effect of 1
April 1972.Today, the Civil Law Act 1956(Act 67)(Revised 1972)(CLA 1956) become
the statutory authority which incorporating all the three statutes for the application of
English Law in the whole Malaysia., which later being prescribed in three sections
a) section 3
b) section 5
c) section 6
In section 3(1) provides for the general application of English Law. It states
(a) In West Malaysia or any part thereof, apply the common law of England and
the rules of equity as administered in England on the 7th day of April, 1956
In Sabah, apply the common law of England and the rules of equity
as administered or in force in England on the
1st day of December, 1951
(c) In Sarawak, apply the common law of England and the rules of equity
administered or in force in England on the
12th day of December, 1949
In general it can be explain that section 3(1) provides that if there were any
absence of written law, the courts in Malaysia shall apply the common law and rules
of equity existing in England on 7 April 1956 for Peninsular Malaysia, 1 December
1951 in Sabah and 12 December 1949 in Sarawak. However, it should be noted
here due to the difference in wording between these sub-section 1(a) with sub-
section 1(b) and (c) of section 3 had perpetuated controversy which the latter import
the English statute of general application into Sabah and Sarawak, not in Peninsular
Malaysia .This can be seen through the case of
, on whether
damages can be awarded for delay in returning specific goods in Malaysia being
held that such a remedy, being ‘a creature of English statute, is not available here.
The non-application of English statute in Peninsular Malaysia can be proved in the
case of
which being held that defence of legal set-
off based on English statutes, does not apply in West Malaysia. So did the case of
where the plaintiff sought to
invoke an English Statutory provision to revoke a nomination by her deceased
husband in his life insurance policy made before their marriage. The learned judge
dismissed the application on the same ground that section 3(a)CLA 1956 only allows
in West Malaysia the application of ‘the common law and the rules of equity’ not
“statutes of general application” which only applicable in Sabah and Sarawak.
However, the common law and rules of equity and general application of English
statutes for Sabah and Sarawak may only applicable provided under section 3(1) to
following qualifications, which includes the absence of local legislation, cut-off dates,
and local circumstances. For the absence of local legislation, the qualification for is
contained in the proviso of section 3(1)CLO 1956 and Section 2 Civil Law Enactment
1937 which functioning to provide statutory recognition of judicial practice of
resorting to English Law if there is lacunae in the local laws. This can be illustrated in
where the Supreme court held
that if there are any absence of any specific legislation concerning contempt of court
the common law should be applied.
While for the qualifications of cut-off dates provides that only common law and
rules of equity and English statutes of general application for Sabah and Sarawak
existing in England on dates 7April 1956 for West Malaysia,1 December 1951 for
Sabah and 12 December 1949 for Sarawak can be applied to fill any lacunae in local
law. Cases like Lee Kee Choong V Empat Nombor Ekor and Leong Bee V Ling Nam
Rubber can be referred to show the extent of the application of English on these
dates. Due to the clear and categorical wording of Section 3(1) regarding to the
application of English Law existing on these dates, it does not prevent the courts to
follow any development of English Common Law after such dates..Although they are
not binding, but these English decisions are persuasive as being illustrated in
in 1984.In this case the appellant argued that the
Federal Court was wrong to follow the English case of
, however the Privy Council rejected the argument by
delivering the opinion even though modern English authorities may be persuasive,
but they are binding and it is up for the Malaysian Court to decide, subject to the
statute law of Federation. Subsequently, the decision of the case becomes a mark to
the continuous reception of principles of English common law and equity in Malaysia.
For the local circumstances, the English Law are only applicable only to the extent
permitted by the local circumstances and inhabitants and subject to qualifications
necessitated by local circumstances. The effect of this qualification can be seen in
the case of
where the court held that
difference in law and practice in Malaysia constitutes’ such a distinctive local
circumstances of local inhabitants of West Malaysia’, that English cases on failure to
register a vehicle ownership claim should not be followed.
In
, it provides for the application of English Law in
commercial matters. As being stated here:
- For West Malaysia (other than Malacca and Penang), the application of
English law in the matters is restricted to the law as administered in England on
7th April 1956.
Whereas for Malacca, Penang, Sabah and Sarawak, the English law
applicable is the one in existence in England at the date the issue arises.
The difference in wording between subsections (1) and (2) of Section 5 means that
there is a difference in the extent to which English Law is applicable in commercial
matters in the former Malay states on the one hand, and Melaka, Penang, Sabah
and Sarawak on the other hand. The application of English Law under section 5
provided that in such matters, the law to be administered was as follows. If the issue
arose anywhere in the federation other than in Melaka and Penang, the law to be
administered ‘shall be the same as would be administered in England in the like
cases at the date of coming into force of this ordinance’. While, if the issue arose in
Melaka or Penang, the law to be administer ed ‘shall be as the same as would be
administered in England in the like case at the corresponding period’: unless in either
case other provision had been made or might have been made by any written law.
It clear here that under section 5, there is a greater reception of English Law in
commercial matters.The cases of
and
can be referred to
examine the application of Section 5 concerning on mercanti le matters in Malaysia.
As for Section 6 of CLA 1956 expressly excludes the application in Malaysia of the
English Law concerning land tenure. It hereby expresses:
“Nothing in this Part shall be taken to introduce into Malaysia or any of the states
comprised therein any part of the law of England relating to tenure or conveyance or
assurance of or succession to any immovable property or any estate, right or interest
therein”
Section 6 was enacted to prevent the wholesale application of English Law
under section 3(1) to land matters in Malaysia. This is because in 1956, when CLO
1956 was enacted, there already had existed local legislation concerning land
matters. To show this,the case of
where In this case, Privy Council held that since the
National Land Code is a complete and comprehensive code of law governing land
tenure and the incidents of it as well as other important matters affecting
there is no room for the importation of any rules of English
in so far as the Code itself may expressly
land,
law in that field except
provide s6 of the CLA in referring to the
laws relating to tenure, must be taken to embrace all rules of law which govern the
incidents of the tenure of land and the English rules relating to the grant of relief
against forfeiture are therefore inapplicable in Malaysia.
As a conclusion, after discussing those three sections under Civil Law Act 1956(Act
67)(Revised 1972)(CLA 1956),we may see that in Malaysia, we still take into account
the application of English Law in our judiciary system. Even though it is not binding in
our courts, but it becomes persuasive in assisting courts in delivering judgement.
The principles of English Law still being used, but to the some extent it has its own
extend to be fit with the society of Malaysia today.
