Section 3 of the Civil Law Ordinance 1956

The Federation of Malaya was formed on 1st February 1948 and was followed shortly by
the extension of the Civil Law Enactment 1937 of the Federation of Malaya to the Unfederated
Malay States by the Civil Law Ordinance 1951. This situation didnt last long as both the statutes
were later replaced by the Civil Law Ordinance 1956 which applied to the whole of the
Federation of Malaya. The introduction of the Civil Law Ordinance 1956 marked the acceptance
of the English Law in the Federation of Malaya. The Civil Law Ordinance 1956 had particularly
contained such implementation of the English Law in the country such as the Section 3(1) which
authorizes the general application of the English law.

The law of Malaysia is mainly based on the common law legal system which brings the
meaning that the English law forms part of the laws in Malaysia. Article 160 of the Federal
Constitution explains 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 to which the English law is
applicable in Malaysia. Section 3 of the Civil Law Act 1956 gives the meaning of the English
law as the common law of England and the rules of equity and, in certain circumstances,
English statutes.

Application of Section 3 in Malaysia

The common law and rules of equity as well as the English statutes of general application
in Sabah and Sarawak, all apply under section 3(1) are subject to certain qualifications among
which are the absence of local legislation, cut-off dates and also local circumstances1. First of
all, in the occurrence of a lacuna or an absence of a local legislation the qualification is applied
only in the absence of a local status on that particular subject. This qualification however is
merely the statutory recognition of judicial practice of judicial practice of opting to the English
law in order to fill the lacunae or gaps in the local law. Terrell Ag C.J once said in Yong Joo Lin
v Fung Poi Fong2 that The principles of English law have been for many years accepted in the
Federated Malay States where no other provision has been made statute. Section 2(1) of the Civil
Law Enactment therefore merely gave statutory recognition to a practice which the courts had

1
Hamzah, W. (2009). A first look at the Malaysian Legal System.
2
[1941] MLJ 63-64
previously followed. This qualification has been further discussed in Attorney General,
Malaysia v Manjeet Singh Dhillon3. In this case, the supreme court held that in any absence of a
specific local legislation concerning the matter of contempt of court, the common law of
contempt as discussed in R v Gray4 is to be applied under Section 3 of the Civil Law Act 1956.
The decision was also followed by the Court of Appeal in Murray Hiebert v Chandra Sri Ram5.

The second qualification for the application of the English law in Malaysia is the cut-off
dates of the common law and rules of equity and in Sabah and Sarawak, the English Statutes of
general application existing in England on the dates specified. Section 3(1) provides that the
common law, statutes of general application and the rules of equity shall be applied so far only as
the circumstances of the States of Malaysia and their respective inhabitants permit and subject to
such qualification as local circumstances render necessary. In other words, the mentioned section
provides that in the scenario where there is absence of written law regarding a specific matter,
the courts in Malaysia are allowed to apply the common law and rules of equity existing in
England on the 7 April 1956 in West Malaysia, 1 December 1951 in Sabah and lastly 12
December 1949 in Sarawak. The law of England only on that specific date stipulated is allowed
to be applied to fill the gaps in the local legislation.

Several cases have discussed concerning this qualification such as in the case of Leong
Bee & Co v Ling Nam Rubber Works6 where the Privy Council held that as a presumption that a
fire had begun to spread on a mans property arose from any kind of act or default for which he
was answerable to, has no application in Malaysia as a result of the displacement by the English
Statutes. The presumption was no longer a part of the common law of England as of 7 April
1956. The decision held in that case was also followed by the High Court in the case of Lembaga
Kemajuan Tanah Persekutuan v Tenaga Nasional Berhad7. Moreover, in the case of Ong Guan
Hua v Chong8, Thomson CJ held that there is no distinction between wagering on games and
other types of gaming in Malaysia. The question of gaming is to be considered in the light of the
local statutes which correspond to the English Gaming Acts of 1845 and 1892.

3
[1991] 1 MLJ 167
4
[1900] 2 QB 36
5
[1999] 4 AMR 4005, 4024
6
[1970] 2 MLJ 45
7
[1997] 2 MLJ 783
8
[1963] MLJ 6
 Regardless of the unambiguous and categorical wording of S3(1) such that Malaysian
courts should apply English law existing on the predefined dates, in practice the courts may take
after advancements in English common law after such dates. Decisions regarding the common
law made after such dates even though are not binding, they are persuasive. This was clarified by
the Privy Council in Jamil bin Harun v Yang Kamsiah and Anor9 in 1984. In an appeal case from
Malaysia, the appealing party contended that the Federal Court was not right to take after the
English case of Lim Poh Choo v Camden and Islington Area Health Authority10. In this case, the
appellant argued the decision of the House of Lords regarding the issue of itemizing damages in
a personal injury case. The argument was later rejected by the Privy Council and Lord Scarman
gave his opinion that it is for the courts of Malaysia to decide on whether to follow the English
case laws.

Moving on, the third qualification of the general application in English law is that
English Law is only applicable to the extent permitted by local circumstances and inhabitants
and furthermore subjected to qualifications necessitated by local circumstances. English law may
be most suited in its homeland, but does not necessarily translate well into the local environment
which the imposition is totally an alien system on a socially and culturally different from English
society. The result of such a proviso in the application of English law can be seen in Syarikat
Batu Sinar v UMBC Finance11 regarding 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. The High Court noted that the English practice of endorsement of vehicle
ownership claims by finance companies is different from that in Malaysia.

In Bank Bumiputra Malaysia Bhd v Emas Bestari Sdn Bhd & Anor12, the court held that it
should also be borne in mind that being part of the common law, the law of torts applicable in
Malaysia is as provided by Section 3(1) of the Civil Law Act 1956. Moreover, in the case of Beta
Tegap Sdn Bhd v Majlis Perbandaran Sepang13, it was held that the Attorney Generals position
is special. He is not just a person but rater supposed to and expected to act when matters concern

9
[1984] 1 MLJ 217
10
[1980] AC 174
11
[1990] 2 CLJ 691
12
[2014] 1 CLJ 316
13
[2014] 4 CLJ 551
public interest or public policy. This is a common law principle which one follows by the virtue
of Section 3 of the Civil Law Act 1956.

Besides that, in the case of Lee Ewe Poh v Dr Lim Teik Man & Anor14, the plaintiff who
was suffering from piles had consulted the defendant who was a General and Colorectal surgeon.
The plaintiff then underwent surgery and had her haemorrhoids successfully removed. After
some time, the plaintiff had called the hospital to inquire about what had exactly happened
during the procedure and learned that the defendant had taken photographs of her private area
during the procedure The plaintiff claimed a violation of privacy by the defendant since she did
not give her consent for the defendant to photographer private part. The defendant claimed that
in accordance with accepted medical practice, one photograph was taken before and one taken
after the procedure as to facilitate easy explanation to the patient after the said procedure.
Moreover, the defendant also contended that invasion of privacy rights is not recognized breach
in tort under the English common law and thus is it not an actionable tort in Malaysia pursuant to
Section 3 of the Civil Law Act 1956. The court held that there is no dispute that the 1st defendant
had a doctor-patient relationship. The duty of care owned by the doctor arises out of his
relationship with his patient. Without the doctor and patient relationship, there is no duty on the
part of the doctor to diagnose advice and treat his patients.

As a conclusion, Section 3 of the Civil Law Act 1956 directs the courts of Malaysia to
apply the common law of England only in so far as the circumstances permit and save where no
provision has been made by the statute law. However, the development of the common law after
7 April 1956 is entirely in the hands of the courts of Malaysia. In addition, it can clearly be seen
that Section 3(1) permits the reception of the common law of England in the Federation of
Malaya subject to certain important qualifications that it may be lawfully modified in the future
by any written law.

14
[2011] 4 CLJ 397