SOURCES OF LAWEnglish Law презентация

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;

means the common law of England

1807 – Penang
Royal Charter of Justice 1826 – Malacca & Singapore

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

L-4 or Law of Sarawak Ordinance 1928
Application of Laws Ordinance 1949

including Penang and Malacca)

Was revised in 1972 to include Sabah and Sarawak
-- Civil Law Act 1956 (Revised 1972)

1956 for West Malaysia
4 April 1972 for East Malaysia

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."

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.

made or may hereafter be made by any written law in force in Malaysia, the Court shall—

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

apply the common law of England and the rules of equity as administered in England on the 7 April 1956;

England and the rules of equity, together with statutes of general application, as administered or in force in England on 1 December 1951;

England and the rules of equity, together with statutes of general application, as administered or in force in England on 12 December 1949,

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)

(case law)
Enforced through the doctrine of binding precedent.

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

law tradition, that supplement strict rules of law where their application would operate harshly.

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

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.

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

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.”

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.

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”

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

law

may hereafter be made by any written law in force in Malaysia, the Court shall—

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

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.

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.

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.

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.

then it becomes inapplicable in Malaysia as well.

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.

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.

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.

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

and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary”

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.

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.”

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.”

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“…

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.”

in force in Malaysia.
If there is – apply it!

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

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

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

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.