You are on page 1of 9

WITH REFERENCE TO THE CIVIL LAW ACT 1956 AND DECIDED CASES, EXPLAIN THE CONDITIONS FOR THE

APPLICATION OF ENGLISH LAW IN MALAYSIA.

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 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 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 (b) In Sabah, apply the common law of England and the rules of equity, together with statutes of general application 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, together with statutes of general application, as 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 subsection 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 Mokhtar v Arumugam, 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 Permodalan Plantation v Rachuta which being held that defence of legal setoff based on English statutes, does not apply in West Malaysia. So did the case of Pushpah v Malaysian Co-operative Insurance Society 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

Attorney General,Malaysia V Manjeet Singh Dhillon 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 Jamil bin Harun V Yang Kamsiah in 1984.In this case the appellant argued that the Federal Court was wrong to follow the English case of Lim Poh Choo V Camden & Islington Area Health Authority, 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 Syarikat Batu Sinar V UMBC Finance 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 Section 5 of CLA 1956, it provides for the application of English Law in commercial matters. As being stated here: s5(1) of CLA 1956: - 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. s5(2) of CLA 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 administered 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 Seng Djit Hin V Nagurdas Purshotumdas and Shaik Sahied bin Abdullah Bajerai V Sockhalingam Chettiar can be referred to examine the application of Section 5 concerning on mercantile 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 United Malayan Banking Corporation v Pemungut Hasil Tanah, Kota Tinggi 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.

You might also like