The law of Malaysia is mainly based on the common law legal system that means that

English law forms part of the laws of Malaysia. In Article 160 of the Federal Constitution
states the definition of law which includes the common law in so far as it is in operation in
the Federation or any part thereof that concerns the extent to which the English law is
applicable in Malaysia. In the Section 3 of the Civil Law Act 1956 (Act 67) (Revised 1972)
gives the meaning of the English law which means the common law of England and the rules
of equity and, in prescribed circumstances, English statutes. The common law is the body of
rule developed by the old common law courts - Court of Exchequer, Court of Common Pleas
and Court of Kings Bench that distinct from the old Court of Chancery and were extinct
todays world. Before Norman Conquest in 1066, the common law was applied in England
and based essentially on customs common throughout England in contrast to local customs.
The common law is the unwritten or unenacted law of England and it based solely on
decisions of the courts.

Equity means fairness and is the body of rules developed first by the Lord Chancellor and by
the old Court of Chancery in the end of the fifteenth century. Equity, unlike the common law,
is not a complete body of rules which can exist on its own and it merely filled the gaps in the
common law and softened the strict rules of common law. Furthermore, equity is a
discretionary system of justice. An equitable remedy is not available as of right; it may not be
granted if the plaintiff considered morally undeserving. The equitable remedies offered were
injunction, specific performance, rescission and rectification that the major contributions of
equity are the trust concept.

In 1963, which when Malaysia was formed, there were three separate statutes authorizing the
application of English Law which are the Civil Law Ordinance 1956 (CLO 1956) in
Peninsular Malaysia, the Application of Laws Ordinance 1951 in Sabah as well as the
Application of Laws Ordinance 1949 in Sarawak with effect from 1 April 1972, after the
formation of Malaysia, the CLO 1956 was extended to Sabah and Sarawak by the Civil Law
ordinance (Extension) Order 1971. The Civil Law Act 1956 (Act 67) (Revised 1972) (CLA
1965) being incorporate to all the three earlier statutes that are the statutory authority for the
application of English law in today Malaysia. The extent of the application of English law is
prescribed in the following three sections which are Section 3 and Section 5. In Section 3 (1),
it provides for the general application of English law. It states that save so far as other
provision has been made or may hereafter be made by any written law in force in Malaysia. 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, together with statutes of general application, as administered
or in force in England on the 1st day of December, 1951. 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 , 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.

In short, section 3(1) provides that the courts in Malaysia shall apply the common law as well
as rules of equity existing in England in the absence of written law on 7th April 1956 in West
Malaysia, 1st December 1951 in Sabah and 12th December 1949 in Sarawak. In sub-sections
(1)(b) and (1)(c) of section 3 states that English statutes of general application Sabah and
Sarawak shall be applied. The difference in wording between these subsections on the one
hand and subsection (1)(a) on the other hand perpetuated a controversy which earlier arose
from section 3(1) CLO 1956 which was word for word the same as section 3(1)(a) CLA 1956.
Are English statutes of general application applicable in West Malaysia. Two views, each as
cogent as the other, exist. Professor Bartholomew, writing on section 3(1) CLO 1956, holds
that such English statutes are applicable.39 Joseph Chia, in discussing the corresponding
provision in the CLA 1956, expresses a contrary opinion.40 Judicial opinion supports the
Joseph Chia view.
As in case of Jamil Harun v Yang Kamsiah & Anor ( 1984 ), the Privy Council held that, it is
for the courts in Malaysia to decide, subject always to the statue law of the Federation,
whether to follow English Law. Modern English maybe authorities, but not binding. In
determining whether to accept their guidance, the courts will have regard to the circumstances
of the states of Malaysia and will be careful to apply them only to the extent that the written
law permits, and no further than, in their view, it just to do so. As in case Karpal Singh v
Anor v Public Prosecutor ( 1991 ) MLJ 564, the Supreme Court held to the effect that
English Law cannot be applied in criminal procedure, which in Malaysia is governed by the
Criminal Procedure Code.
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 , 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 (1) provides that the
courts in Malaysia shall apply the common law as well as rules of equity existing in England
in the absence of written law on 7th April 1956 in West Malaysia, 1st December 1951 in
Sabah and 12th December 1949 in Sarawak. In sub-sections (1) (b) and (1) (c) of section 3
states that English statutes of general application Sabah and Sarawak shall be applied. The
difference in wording between these subsections on the one hand and subsection (1) (a) on the
other hand perpetuated a controversy which earlier arose from section 3(1) CLO 1956 which
was word for word the same as section 3 (1) (a) CLA 1956. Are English statutes of general
application applicable in West Malaysia.

As in case of Seng Djit Hin v Nagurdas Purshotmudas Co. (1023) A.C 444, which the facts is
for action of damages resulting from failure to deliver good caused by a shortage of ships. The
British government had requisitioned ships during war time. The issue was the application
of English Defense of Realm (Amendment) Act 1915 and the Courts (Emergency Power) Act
1917. The English statues cited above were not part of the Mercantile Law which they
thought was the law to be administrated in term of Section 5 of the ordinance. The question to
be decided in the Colony is a question as to the law of sales. No one can doubt that the law of
sales is part of Mercantile Law. If the same question as to sale had to be decided at the same
time in England, it is clear beyond all doubt that the above cited statues of 1915 and 1917
could be pleaded if the facts allowed of their application.

In a conclusion, Section 3 and 5 of the Civil Law Act 1956 are applicable when the court has
found no laws to be applied in determine certain cases in Malaysia. These English common
law and equity can be applied if no more existing law that can determine decision for the
cases.