WHAT IS CIVIL LAW ACT 1956?



PROVISION OF SECTION 3 CIVIL LAW ACT 1956

Section 3 of the Civil Law Act 1956 provides:
 
(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 West Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on 7th day of 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 1st day of December 1951; and

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 12th day 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 under s.3(1)
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

PRE-CONDITIONS FOR THE APPLICATION OF ENGLISH LAW
The application of the English common law and rules of equity (and in Sabah and Sarawak, English statutes of general application) in Malaysia is conditional, i.e. it is subject to three conditions:
       Absence of local statutes/legislation covering the same matter; 
       Cut off-dates; and
       Suited to local circumstances.

1. Absence of Local Statutes/Legislation Covering the Same Matter

The authority of condition (a) above is the qualification contained in the opening words of Section 3 (1) – "Save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia …"

Under the CLA, therefore, English law is referred to only as a means to fill in lacunae or gaps in the local system.

UMBC CORP BHD AND ANOTHER v PEMUNGUT HASIL TANAH, KOTA TINGGI [1984] -… since the National Land Code was a complete and comprehensive code of law governing the land tenure and other matters affecting land in Malaysia, there was no room for the importation of any relevant rules of English law save in so far as the Code itself might have expressly provided. 

In ATTORNEY GENERAL, MALAYSIA v MANJEET SINGH DHILLON [1991] 1 MLJ 167 that Supreme Court held that in the absence of any specific local legislation concerning contempt of court , the common law of contempt as stated in R v GRAY [1900] 2 QB 36 should be applied under s.3 CLA 1956.
That decision was later followed by the Court of Appeal in MURRAY HIEBERT v CHANDRA SRI RAM [1999] 4 AMR 4005.

In 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.”

2. Cut Off-Dates
Only common law and the rules of equity (and in Sabah and Sarawak, English statutes of general application) existing in England on the dates specified can be applied to fill in the lacunae in local law. The dates are:
       7 April 1956 – West Malaysia
       1 December 1951 – Sabah
       12 December 1949 - Sarawak
Hence, the courts need not to consider any development in English law after 1956.

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 LEE KEE CHOONG v EMPAT NOMBOR EKOR (NS) SDN BHD & ORS (concerning whether a valuation on the fair price of shares could be questioned), their lordships need not consider developments in English law after 1956 because under s.3(1) CLO 1956 ‘any subsequent march in English authority is not embodied”.

In LEONG BEE & CO v LING NAM RUBBER WORKS [1970] 2 MLJ 45, the Privy Council held that a presumption – that a fire which began on a man’s property arose from some act or default for which he answerable – has no application in Malaysia because having been displaced by the English statutes, the presumption was no longer part of the common law of England on 7 April 1956.

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.

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.”

Guidelines on the application of English law
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.”


3. Suitability to Local Circumstances
English law is applicable only to the extent permitted by local circumstances and inhabitants, and subject to qualifications necessitated by local circumstances.This qualification is contained in Section 3 (1)(b) of the Civil Law Act 1956. This is to avoid a wholesale importation of English law as an alien system onto a society that is socially and culturally different from the English society.

In SYARIKAT BATU SINAR v UMBF FINANCE [1990] 2 CLJ 691, concerning the negligent failure of a finance company to indorse its claim to ownership of a tractor on it’s 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 company is different from that in Malaysia and Brunei. Whereas the English practice is based purely on a voluntary arrangement, the Malaysian practice is based on statutory provisions. Invoking the proviso to s.3(1) CLA, Peh Swee Chin J:

“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.”


SPECIFIC APPLICATION OF ENGLISH COMMERCIAL LAW AND SECTION 5 OF CLA 1956

There is a wider reception of English law in Malaysia in commercial matters. This is because Section 5 of the Civil Law Act 1956 introduces into the States of Malaysia the whole of English commercial Law, including statutes. 


Section 5(1) In all questions or issues which arise or which have to be decided in the States of Peninsular Malaysia other than Malacca and Penang with respect to the law of partnerships, corporations, banks and banking, principals and agents, carriers by air, land and sea, marine insurance, average, life and fire insurance, and with respect to mercantile law generally, the law to be administered shall be the same as would be administered in England in the like case at the date of the coming into force of this Act, if such question or issue had arisen or had to be decided in England, unless in any case other provision is or shall be made by any written law.
WHAT IS CIVIL LAW ACT 1956? WHAT IS CIVIL LAW ACT 1956? Reviewed by Kamaruddin Mahmood on 12:22:00 PG Rating: 5

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