SOURCES OF LAWEnglish Law

Definition of “law”

Article 160 FC “law” includes written law, the

common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof;

Definition of “common law”

Section 3 Interpretation Acts 948 and 1967:

“common law” means the common law of England

Historical background on reception of English law

Straits Settlements: Royal Charter of Justice 1807 –

Penang Royal Charter of Justice 1826 –

Malacca & Singapore

Malay States: Civil Law Enactment 1937 – FMS Civil Law (Extension) Ordinance 1951

– UFMS

Sabah: Civil Law Ordinance 1878 Civil Law Ordinance 1938 Application of Laws Ordinance 1951

Sarawak: Order L-4 or Law of Sarawak

Ordinance 1928 Application of Laws Ordinance 1949

Current application of English law

Civil Law Act 1956 (Federation of Malaya including Penang and Malacca)

Was revised in 1972 to include Sabah and Sarawak

-- Civil Law Act 1956 (Revised 1972)

Civil Law Act 1956 (Revised 1972)

Date of coming into force: 7 April 1956 for West Malaysia 4 April 1972 for East Malaysia

Applicable to civil cases only

Sia Cheng Soon v Tengku Ismail Tengku Ibrahim [2008] 5 CLJ 201

CLA 1956 concerns civil law, not criminal law. The title of the Act says so. The preamble also provides:"An Act relating to the civil law to be

administered in Malaysia."

Section 3 of CLA 1956

Section 3

Application of U.K. common law, rules of equity and certain statutes 3. (1) 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 Peninsular Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on the 7 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 1 December 1951;

(c) 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 12 December 1949,

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.

Meaning of “Court”

(1) 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—

Section 2 CLA 1956 “Court” means any court in Malaysia

of competent jurisdiction, and includes any Judge thereof whether sitting in court or in chambers;

Section 3 Interpretation Act 1948 and 1967

“court” means a court of competent jurisdiction

Section 3(1)(a) CLA 1956

(a) in Peninsular Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on the 7 April 1956;

Section 3(1)(b) CLA 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 1 December 1951;

Section 3(1)(c) CLA 1956

(c) 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 12 December 1949,

Comparison

PENINSULAR MALAYSIA Common law of

England Rules of equity

Cut-off date: 7 April 1956

SABAH & SARAWAK

Common law of England

Rules of equity Together with statutes

of general application

Cut-off date: 1 December 1951

(Sabah) 12 December 1949

(Sarawak)

What is common law?

Law developed by judges through decisions of court. (case law)

Enforced through the doctrine of binding precedent.

What is “rules of equity”?

There were two parallel court systems in England:

‘courts of law’ which enforced legal justice, and

‘courts of equity’ Equity means 'fairness' and is the

body of rules developed first by the Lord Chancellor and by the old Court of Chancery

A set of legal principles, in jurisdictions following the English common law tradition, that supplement strict rules of law where their application would operate harshly.

What is “statutes of general application”?

“the reasons for deciding that a statute is not of general application are that it is of a local personal or temporary nature, or that it is limited in scope (e.g. a fiscal or revenue measure) or that it deals with specific institution (e.g. electricity board or an art gallery) or that it is concerned with a limited class of persons (like the Ecclesiastical Commissioners, or those who work in the coal mining industry)”.

Per Roberts CJ in Bong Sau Fei v Chong Chu Lien [1965-86] 2 BLR 124

Statutes enumerated in 2nd Sch of CLA applicable to Sarawak

Whether statutes of general application are also applicable to Peninsular Malaysia

2 views (read Ahmad Ibrahim , The Malaysian Legal System).

What about the court’s view on this matter?

Ong Guan Hua v Chong Court held that the English Gaming Act

of 1710 and 1835 was not applicable in West Malaysia.

Similarly, in these cases, it was held that English statutes were not applicable in West Malaysia:

Permodalan Plantation v Rachuta [1985] 1 MLJ 157

Mokhtar v Arumugam [1959] 1 MLJ 232

Pushpah v Malaysian Cooperative Insurance Society [1995] 2 MLJ 657

Mokhtar v Arumugam [1959] 1 MLJ 232

Court: “It is quite clear that in England the

power of the Court to award damages in the nature of interest for delay in returning specific goods is a remedy conferred by statute and not one available at Common Law. This relief, being a creature of English statute, is not available here: see section 3(1) of the Civil Law Ordinance, 1956.”

Proviso to Section 3

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.

Flashback…

Royal Charter of Justice 1807 “so far as local circumstances will admit” “so far as local conditions and inhabitants

will admit”

Proviso to Section 2 CLE 1937 (FMS) “so far only as the circumstances of the

Federated Malay States and its inhabitants permit and subject to such qualifications as local circumstances render necessary”

PL Narayanan v PL Subarmaniam [1998] 4 CLJ Supp 428

“Under the Ordinance or Act, there is no question of Malaysian law deigning to English law. A court shall administer the common law of England and the rules of equity so far only as Malaysian circumstances and Malaysians permit”

Per Jeffrey Tan J

Application of English law only if not provided by our written law

(1) 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—

Dato Seri Anwar Ibrahim v PP [2010] 7 CLJ 397

Once there is written law in Malaysia on that matter, English common law and the rules of equity are excluded from our law.

Application of English law only at its effective date

The cut-off dates

Only English common law and rules of equity administered in England on 7 April 1956 can be applied to fill in the lacuna in the law.

Only English common law and rules of equity together with statutes of general application administered in England on 1 December 1951 (Sabah) or 12 December 1949 (Sarawak) can be applied to fill in the lacuna in the law.

Lee Kee Chong v Empat Nombor Ekor

Court: when referring to English common law, the courts are restricted to adopt English law as administered at its effective date, and any subsequent development in England is not binding.

Pang Soo v. Tong Ah Company Sdn Bhd [2010] 2 CLJ 482

Nuisance is a cause of action under English law. According to S 3 CLA, the common law that has to be applied is the common law in England before 7 April 1956.

Leong Bee v Ling Nam Rubber Works [1970] 2 MLJ 45

A common law presumption that has been displaced by an English statute formed no part of the common law of England. Thus has no application in Malaysia.

Therefore, if the common law is no longer valid in England, then it becomes inapplicable in Malaysia as well.

Jamil bin Harun v Yang Kamsiah [1984] 1 MLJ 217

The Federal Court ordered the trial court to itemise damages for the purpose of calculating interest on damages following the English case of Lim Poh Choo v Camden & Islington Area Health Auhtority [1980] AC 174.

It was argued that section 3 CLA prevents the Malaysian courts from applying English cases decided after 7 April 1956 and as such, the practice of Malaysian courts in itemising damages for the purpose of calculating interest on damages by following English cases after 7 April 1956 is unlawful.

This argument was rejected by the Privy Council.

There was no written law in Malaysia which forbids the courts to adopt the itemisation process in assessing damages.

“The courts of Malaysia are free to take their own course.”

Modern English authorities may be persuasive but are not binding.

In other words: In the absence of written law

prohibiting the application of developments in English law after 7 April 1956, a Malaysian court is entitled to apply cases decided in England after that date.

“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”

Commonwealth of Australia v Midford (Malaysia) Sdn. Bhd. [1990] 1 CLJ 77, . [1990] 1 MLJ 878

Section 3 of the Civil Law Act 1956 only requires any Court in West Malaysia to apply the common law and the rules of equity as administered in England on 7 April 1956. That does not mean that the common law and rules of equity as applied in this country must remain static and do not develop.

Nepline v Jones Lang Wootton [1995] 1 CLJ 865

Court applied the proviso to S 3.

Abdul Hamid J:“I think I am entitled to go on and consider whether local circumstances would require some "modification" to extend the concept of the duty of care to an omission as in this case. As I have said, I think the proviso to s. 3 of the Civil Law Act 1956 allows me to do so if local circumstances so require. Indeed the same thing was done by Peh J in Batu Sinar 's case. In fact it can be said that the Supreme Court in Commonwealth of Australia's case did just that when it applied the post 1956 decisions of the English Courts, even though the judgment did not say so.”

Syarikat Batu Sinar v UMBF Finance [1990]

Court applied the proviso to S 3.

“The practice in West Malaysia would constitute such a distinctive local circumstance of the local inhabitants of West Malaysia that the decision of Moorgate and other cases directly and indirectly on the point of failure to have an ownership claim registered should not be followed. We have to develop our own common law just like what Australia has been doing by directing our minds to the 'local circumstances' or 'local inhabitants.”

Guidelines on the application of English lawThe Nepline case

Nepline v Jones Lang Wootton [1995] 1 CLJ 865

Abdul Hamid J:

“In applying s.3 of the Civil Law Act 1956, the approach the Court should take is first to determine whether there is any written law in force in Malaysia.

If there is none, then the Court should determine what is the common law of, and the rules of equity as administered in England on 7 April 1956.

Having done that the Court should consider whether "local circumstances" and "local inhabitants" permit its application as such. If it is "permissible" the Court should apply it. If not, the Court is free to reject it totally or adopt any part which is "permissible“…

…Where the Court rejects it totally or in part, then there being no written law in force in Malaysia, the Court is free to formulate Malaysia's own common law.

In so doing, the Court is at liberty to look at any source of law, local or otherwise, be it England after 7 April 1956, principles of common law in other countries, Islamic law of common application or common customs of the people of Malaysia. Under the provision of s.3 of the Civil Law Act 1956, that is the way the Malaysian common law should develop.”

Guidelines from the Nepline case

1) See whether there is any written law in force in Malaysia. If there is – apply it!

2) If there is none, determine the English common law or rules of equity on the cut-off date (be it 1956, 1951 or 1949)

3) Consider the local circumstances. If local circumstances permit – apply it! If not – reject it totally, or adopt the part which is permissible.

4) If the court rejects it totally or in part, the court is free to formulate Malaysia’s own common law.

In formulating Malaysia’s own common law, the court is free to look at any source of law, local or non-local.

The common law of England after the cut-off date, statutes of general application after 1951/1949, principles of common law in other countries, common custom of people of Malaysia etc.