Law434 Lecture 2 English Law (PT 1)

Malaysian Legal System
LAW 434
LECTURE 2
(Part 1)
ENGLISH LAW AND CIVIL

LAW ACT 1956
1
English law
Composition of English Law:
• Common law
• Rules of equity
• Statutes
• The common law is the body of rules developed by

the old common law courts - Court of Exchequer,
Court of Common Pleas, and Court of King's Bench -
as distinct from the old Court of Chancery, all of
which are now extinct.
• The common law is the unwritten or unenacted law
of England based solely on decisions of the courts.
2
• Rules of equity is the body of rules developed first by
the Lord Chancellor and later, towards the end of
fifteenth century, by the old Court of Chancery.
• Equity is not a complete body of rules which can exist
on its own. It came into being to supplement the
common law, to correct its defects and mitigate its
harshness.
• If there is a conflict between common law and
equity, the latter prevails : s.3(2) CLA 1956 Revised
1972
• Statutes refer to the English legislation/act enacted

by the British parliament.
3
Summary of statutes which provided for the reception
of English law in the regions:
Straits Settlement
• First Royal Charter of Justice of 1807
• Second Royal Charter of Justice 1826
• Third Royal Charter of Justice 1855
Sarawak
• Law of Sarawak Ordinance 1928
• Application of Laws Ordinance 1949
Sabah
• Civil Law Ordinance 1938
• Application of Laws Ordinance 1951
4
Federated Malay States
• Civil Law Enactment (1937 FMS No 3)
Unfederated Malay States.

• Civil Law (Extension) Ordinance 1951
Federation of Malaya
• Civil Law Act 1956 (including Penang and Malacca)
Malaysia
• Civil Law Act 1956 (Revised 1972) - Malaysia
(including Sabah and Sarawak).
5
Application of English Law in Malaysia
• Governed by s.3, s.5 and s.6 Civil Law Act 1956 (Revised 1972)
General Application of English Law in Malaysia.

• Section 3(1) of the Civil Law Act 1956 (Revised 1972) (Act 67)
provides for the general application of English law. It states:
"Save so far as other provision has been made or may
hereafter be made by any written law in force in Malaysia,
the court shall:
a) in West Malaysia or any part thereof, apply the
common law of England and the rules of equity as
administered in England on 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;
6
c) in Sarawak, apply the common law of England
and the rules of equity, together with statutes of
general application, as administered in England
on the 12th day of December, 1949, subject
however to sub-section 3(ii)
Provided always that the said common law, rules of
equity and statutes of general application shall be
applied so far only as the circumstances of the states
of Malaysia and their respective inhabitants permit
and subject to such qualifications as local
circumstances render necessary.”
• Section 3(2) provides that in the event of conflict between

common law and the rules of equity with reference to the
same matter, the rules of equity shall prevail.
7
Conditions or qualification for the application of English Law in
West Malaysia, Sabah and Sarawak:
1. Types of laws
- common law
- rules of equity
- statutes of general application
Are English statutes of general application applicable in West
Malaysia? Two views exist:
1) Prof Bartholomew holds that such English statutes are
applicable. (He argues that the expression "common law“
simply means the law administered by the Courts of
Common Law-whatever in nature).
2) Joseph Chia holds that English statutes are not applicable.
8
Judicial opinion supports the latter view:
• The Court of Appeal in Mokhtar v Arumugam (1959) 2
MLJ 232, on the question of whether damages in the
nature of interest for delay in returning specific goods
could be awarded in Malaysia, held that such a remedy,
being 'a creature of English statutes, is not available
here'.
• The rule was further endorsed in Permodalan Plantation
v Rachuta (1985) 1 MLJ 157, when it held the defence of
legal set-off, based on an English statute, does not apply
in West Malaysia.
9
• In Jayakumari v Suriya Narayanan [1996] 1 LNS 74
on the issue of whether a Malaysian court has
jurisdiction to grant an interim relief, based on an
English statute, the court held that the English
statutes were not binding in our country.
• In Pushpah v Malaysian Co-operative Insurance
Society (1995) 2 ML,1 657, 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.
10
• The court dismissed the application on the-ground that
section 3(1)(a) CLA 1956 allows in West Malaysia the
application of the the common law of England and the
rules of equity and not the additional item, 'statutes of
general application'. He agreed that the result was unjust
in the circumstance but observed that it was 'for
Parliament to change the law if Parliament deems the
circumstances justify such change'.
11
2. Absence of local legislation.
s.3 merely is the statutory recognition of judicial
practice of resorting to English law to fill the lacunae
(gaps) in the local law.
• As Terrel Ag. C.J. said in Yong Joo Lin v Fung Poi Fong
(1941) MLJ 54:
"Principles of English law have for many years been
accepted in the Federated Malay States where no other
provision has been made by statute. S.2 of the Civil Law
Enactment therefore merely gave statutory recognition
to a practice which the courts had previously followed."
12
• In Attorney-General, Malaysia v Manjeet Singh Dhillon
(1991) 1 MLJ 167, the court held that in the absence of
any specific local legislation concerning contempt of
court, the common law of contempt as stated in R v Gray
(1900) 2 QB 36 should be applied under s.3 CLA 1956.
• The case was followed by the Court of Appeal in Murray

Hiebert v Chandra Sri Ram (1999) 4 AMR 4005.
13
• United Malayan Banking Corp Bhd & Anor v Pemungut
Hasil Tanah, Kota Tinggi (1984) 2 MLJ 87. One of the
questions to be decided was whether the English
equitable rule with regard to relief against forfeiture
could be applied to a forfeiture of alienated land
resulting from an action duly brought under the local
National Land Code. The Privy Council held that since the
National Land Code was a complete and comprehensive
code of law governing the land tenure and other matters
affecting land in Malaysia, there was no room for the
importation of any relevant rules of English law except in
so far as the Code itself may expressly provide for this.
14
3. Cut-off dates
Only the common law and rules of equity (and

in Sabah and Sarawak, includes English statutes
of general application) administered/applied/in
force in England on the dates specified, i.e
7 April 1956 for West Malaysia;
1 December 1951 for Sabah; and
12 December 1949 for Sarawak
can be applied to fill lacunae in local legislation.
15
• By virtue of section 3(1)(a), the states in West
Malaysia may apply English law as it was
applied in England up to 7 April 1956
• This means that any law developed in England
after 7 April 1956 (the cut-off date) will not
apply in West Malaysia
• Any matter not covered by English law prior to
8 April 1956 must be dealt by the court
according to its own judgment or other
sources
• The cut-off date in Sabah is 1 December 1951
while for Sarawak, it is on 12 December 1949
16
• The Privy Council in Lee Kee Choong v Empat Nombor
Ekor (1976) 2 MLJ 93 (concerning whether a valuation on
the fair price of shares could be questioned), held that
the court need not consider developments in English Law
after 1956 because under s.3(1) CLO 1956-'any
subsequent march in English authority is not embodied'.
• In Leong Bee v Ling Nam Rubber Works (1970) 2 MLJ 45,

the Privy Council held that a presumption-that a fire
began on a man's property arose from some act or
default for which he was answerable-has no application
in Malaysia because having been displaced by English
statutes, the presumption was no longer part of the
common law of England on 7 April 1956. Followed in
Lembaga Kemajuan Tanah Persekutuan v Tenaga
Nasional (1997) 2 MLJ783
17
• Despite the fact that that Malaysian courts shall apply
English law existing on the specified dates, in practice the
court may follow developments in English Common law
after such dates. English decisions after such dates,
though not binding are persuasive.
• In Jamil bin Harun v Yang Kamsiah (1984) 1 MLJ 217 the

court held that it was for the courts of Malaysia to
decide, subject to the statute law of the federation,
whether to follow English case law. Modem English
authorities may be persuasive, but not binding. (The
court in this case followed the English case of Lim Poh
Choo v Camden & Islington Area Health Authority
(1980) AC 174).
18
4. Suitability with ‘local circumstances‘
• English law is applicable only to the extent permitted

by local circumstances and inhabitants, subject to
qualifications necessitated by local circumstances.
• In Syarikat Batu Sinar v UMBC Finance (1990) 3 MLJ

468, concerning the negligent failure of a finance
company to endorse its claim to ownership of a
tractor on the Vehicle Registration Card and whether
such negligence forfeits its claim.
19
• The High Court noted that the English practice of
endorsement of vehicle ownership claims by finance
companies is different from that in Malaysia. Whereas
the English practice is based purely on a voluntary
arrangement, the Malaysia practice is based on statutory
provisions.
• Invoking the proviso to section 3(1) CLA 1956, the court

held that the difference in in law and practice in Malaysia
constitutes 'such a distinctive local circumstances of the
local inhabitants of West Malaysia' that English cases on
failure to register a vehicle ownership claim should not
be followed.
20
…To be conTinued…
21

Law434 Lecture 2 English Law (PT 1)

Uploaded by

Copyright:

Available Formats

Law434 Lecture 2 English Law (PT 1)

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Law434 Lecture 2 English Law (PT 1)

Uploaded by

Copyright:

Available Formats

Malaysian Legal System

ENGLISH LAW AND CIVIL

• The common law is the body of rules developed by

• Statutes refer to the English legislation/act enacted

Unfederated Malay States.

General Application of English Law in Malaysia.

• Section 3(2) provides that in the event of conflict between

• The case was followed by the Court of Appeal in Murray

Only the common law and rules of equity (and

• In Leong Bee v Ling Nam Rubber Works (1970) 2 MLJ 45,

• In Jamil bin Harun v Yang Kamsiah (1984) 1 MLJ 217 the

• English law is applicable only to the extent permitted

• In Syarikat Batu Sinar v UMBC Finance (1990) 3 MLJ

• Invoking the proviso to section 3(1) CLA 1956, the court

You might also like