AMYLIA BINTI ISMAIL 2010665666 EAMP6B

APRIL 2011 QUESTION 2 English common law and rules of equity form part of laws in Malaysia With reference to the Civil Law Act 1956 (Revised 1972) and relevant cases, examine the extent of application of English law as a sources of law in Malaysia. (100 marks)

OCTOBER 2010 QUESTION 4 Section 3 and Section 5 of the Civil Law Act 1956 provide for the reception of the English common law, rules of equity and statutes into the Malaysian Legal System. With reference to the above provisions and decided cases, discuss the extent to which the Malaysia courts have resorted to the principles of English law to fill the lacuna in Malaysian law. (100 marks)

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ANSWER

English law means both principles of common law and equity, made by the superior courts of United Kingdom. Common law means rules of law that were made by royal judges based on the customary laws that were commonly applied by the people. English law forms part of the laws of Malaysia and it statute of general application as illustrated in Section 3 Civil Law 1956. However not all of England`s common law and rules of equity form part of Malaysia law. Equity came into being the supplement of common law to correct its defects and mitigate its hardness. Under Section 3 (1) of Civil Law 1956, the Malaysia Court shall in the absence of local law apply the common law of England and the rules of equity, as administered in England on 7 April 19956 in West Malaysia, 1 December 1951 in Sabah and 12 December 1949 in Sarawak. This authorized the general application of English law and it provided save in so far as other provision has been made or may hereafter be made by and written law in force in the Federation or any part thereof the court shall apply the common law of England and the rules of equity as administered in England at the date of the coming into force of this Ordinance: Provided always that the said common law and rules of equity shall be applied so far only as the circumstance of the States comprised in the Federation and their respective inhabitants permits and subject to such qualifications as local circumstance render necessary. In case of Lee Kee Chong Vs Empat Nombor Ekor, the Court affirmed that any subsequent March in English Law in England would not be embodied in local legislation after the cut-off dates. The court also held that their Lordships should not consider the development in English Law after 1956 and Subsections 1(b) and 1(c) of section 3 import English statues of general application into Sabah and Sarawak respectively. However, in practice the Courts may follow development in English common law after such dates. English decision made after such dates, though it is not binding but mere persuasive and it illustrated in the Privy Council decision in Jamil Harun Vs Yang Kamsiah. In this case, it was held that it is correct for the Malaysian court to decide and refer to English case law, since it is persuasive in nature. This practice has allowed for continuing reception of English Law in Malaysia. More than that, there are two other conditions for the application of English law apart from cutoff dates. First is there is lacuna in local law. This qualification is contained in the opening proviso of this section. This proviso is merely the statutory recognition to the application of English law to fill the lacuna of loopholes of any our local law. In the case of AG Malaysia Vs Manjeet Singh, where the court held that in the absence of any specific local legislation concerning contempt of court the common law shall be applied under section 3 of Civil Law Act 1956.

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The next condition for the application of English law in Malaysia is suitability to the local circumstances. English law is applicable to the extent permitted by local circumstances and inhabitants, subject to qualification necessitated by local circumstances. This can be seen in the case UMBC Vs Syarikat Batu Sinar where the court held that the English law that would like to be applied in Malaysia must be suitable with the local circumstance or local inhabitants. The judge also added that we would develop our own common law by directing our mind to the local circumstance and local inhabitants. Under Section 5 of Civil Law Act 1956, it provides the application of English law in commercial matters. In Section 5 (1) for the question arise which have to be decided in West Malaysia other than Penang and Malacca. The law that shall be applied on commercial matter shall be the same as administered in England in the like case at of this Act coming into force. In subsection (2) of section 5, for the questions arise which have to be decided in Malacca, Penang, Sabah and Sarawak, the law that shall be applied on commercial matters shall be the same as administered in England in the like case at corresponding period. The different terminology used by section 5 compared section 3 show that section 5 introduces the whole of English law including statutes, which means greater reception of English law on commercial matters. More than that, the different wording between subsections (1) and (2) of section 5 means that there is difference in the extent of which English law is applicable between the previously established places. Theoretically, in commercial matters there is a reception of English law in the four state while for the other states the reception stops at the cut-off dates. Even though under section 5, it provided reception of English law for commercial matters, section 6 expressly excluded the application in Malaysia of the English law concerning land tenure. This section was enacted because it intended to prevent the wholesale application of English law under section 3 (1) to land matter in Malaysia since there already local legislation concerning land matters.