Common Law and Application

The English Law is part of the Malaysian Law as defined by Article 160 of the Federal Constitution that includes the common law in so far as it is in operation in the Federation or any part thereof. The common law is the unwritten law of England that is based solely on decisions of the courts. Equity on the other hand acts as a supplement to the common law which based on discretionary system of justice. As to its implied reception in Malaysia, the first Charter of Justice 1807 in Penang had established a Court of Judicature which was to exercise the jurisdiction of the superior courts in England. In 1892, the second Charter of Justice had been introducing to replace the Court of Judicature for Penang and include Melaka and Singapore to binds the Strait Settlement to English law. While the third Charter of Justice, split the court system and recognizes the Court of Judicature. After Malaysia was formally formed in 1963, the application of English law are governed by three separate statutes which are the Common Law Ordinance 1956 in Peninsular Malaysia, Application of Laws Ordinance 1951 in Sabah, Application of Laws Ordinance 1949 in Sarawak. The Common Law Ordinance 1956 was then extended to Sabah and Sarawak by the Civil Law Ordinance Order 1971 where today it is known as the Civil Law Act 1956.There are three sections of the Civil Law Act 1956 that prescribed the extent of the application of English law which are section 3, section 5 and section 6 of the Civil Law Act 1956. The common law and rules of equity and also the English statutes of general application used in Sabah and Sarawak that apply in the section 3(1) subject to the certain qualifications. The first qualification is when there is absence of local legislation. The qualification is only the statutory recognition of judicial practice of resorting to English law to fill the lacunae in the local law. This qualification was illustrated in Attorney General, Malaysia v Manjeet Singh Dhillon, which the Supreme Court held that in the absence of any specific local legislation concerning contempt of court, the common law should be applied under section 3 of Civil Law Act 1956. The next qualification is cut-off dates. Cut-off dates is refer to the application of common law and rules of equity following by the English statues of general application in Sabah and Sarawak that are existing in England only on the specific dates. The dates specified which are on 7th April 1956 for West Malaysia while for Sabah on 1st December and followed by the Sarawak on 12th December 1949. English law is applied to fill the lacunae- loop holes in the local law. It can be illustrated through the case of Leong Bee & Co
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v Ling Nam Rubber Works which the court held that a presumption 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. However, in practice the Courts may follow developments in English common law after such dates. English decision made after such dates, though not binding, are persuasive as illustrated in the Privy Council decision in Jamil Harun v Yang Kamsiah. In this case, it was held that it is correct for the Malaysian court to decide and refers to English case law, since it is persuasive in nature. This practice has allowed for continuing reception of English law in Malaysia. The last qualification is applicable to the local circumstances. The English common law is applicable only to the certain extent permitted by local circumstances and inhabitants and it is subject to qualifications necessitated by local circumstances. The effects of this proviso can be illustrated in the case of Syarikat Batu Sinar v UMBC Finance, it is concerning the negligent failure of a finance company to indorse its claim to ownership of tractor on the vehicle registration card and whether such negligence forfeits its claim. The High Court noted that the English practice of endorsement of vehicles ownership claims by finance companies is different from Malaysia. Thus English law is not applicable. The application of English law in the commercial matters that was stated in the section 5 of the Civil Law Act 1956 uses different wording compared to the section 3(1) is section 5 is showing greater reception of English law in commercial matters. In section 5(1), it introduces into the former Malay states the law come into forces in England on 7 April 1956 where section 5(2) introduces the law existing in England on the same date that the issue has to be decided in Melaka, Penang, Sabah or Sarawak. Theoretically, there is a continuing reception of English law in commercial matters in these four states while in the other states the reception of English law was stops at the cut off dates. Section 6 of the Civil Law Act 1956 excludes the application in Malaysia of the English law concerning the land tenure. The objective of the section 6 is to prevent the wholesale application of English law under section 3(1) to land matters in Malaysia. This is due to the reason of there are already existed in the local legislation concerning about the land matters when the Civil Law Acts was enacted in 1956. Section 6 has generated heated debate among the legal practitioners and academics on the issues whether general equitable principles are also excluded. There are two views regarding this issue. The first issue is vested on the premise that the Torrens System as contained in the National Land Code is a comprehensive system of land law. In the case of United Malayan Banking Corporation Bhd v Pemungut Hasil Tanah, Kota Tinggi, where the national land code is complete and comprehensive law governing the tenure of land in Malaysia and the incidents of it, and there is no room for the importation of any rules of English law in that field except the code itself may expressly provide for this. While, in the second view it is based on the contrary proposition that the National Land Code does not cover all the relations between the parties to land transactions. As according this view, the National Land Code merely professes to be
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comprehensive. With the research of cases on the application of equitable principles in land transaction shows support for the second view. It starting with the case of Wilkins v Kannammal & Anor , where the judge held that the Torrens law is a system of conveyance, it does not abrogate the principles of equity, it alters the application of particular rules of equity but only so far as is necessary to achieve its own special objects. In conclusion, even though there is only a slight application of English law in Malaysia as stated in the Civil Law Act 1956, drafting of the own Malaysias Common Law must be work out. After Malaysia had gained 56 years of independence, we shall abolish the irrelevant of the English law and draft out the latest Malaysian common law.

Nelfi Amiera Mizan MMU

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