ENGLISH COMMON LAW AS A SOURCE OF LAW
ENGLISH COMMON LAW AS
A SOURCE OF LAW
INTRODUCTION
English
law is part of the Malaysian law
By
virtue of Article 160 Federal Constitution:
“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;
What
is common law?
Section
3 Interpretation Acts 1948 and 1967:“common law” means the common law of
England.
Common
law is a body of rules developed by the old common law courts – Court of
Exchequer, Court of Common Pleas and the King’s Bench. Common law is based
essentially on customs common throughout England in contrast of local customs,
which had applied in England before the Norman Conquest 1066. It is the
unwritten or the un-enacted law of England, law which is solely based on
decision of courts.
Equity
is the body of rules developed first by Lord Chancellor (the king’s right hand)
and later, towards the end of fifteenth century, by the old Court of Chancery.
Equity is not a complete body of rules which can exists on its own. It came
into being supplement the common law, to correct its defects and mitigate its
harshness.
RECEPTION OF ENGLISH LAW INTO MALAYSIA
The
English common law was introduced into Malaysia by two methods:
(a)
With respect to settled colonies (Penang, Malacca, Singapore) , the colonists
carried with them only so much of the English law as was applicable to their
own situation and the condition of the infant colony. The date of the
establishment of the colony was the date of reception.
(b)
For conquered territories (the Malay states), the colonists retained the
existing legal system only in so far as it was not repugnant to natural
justice. The existing system was retained until such time as other arrangements
could be made for English law to be introduced.
Historical
Background
Straits
Settlements:
The
British period began with occupation of Penang in 1786, Singapore in 1819 and
Melaka in 1824.
¡ Royal
Charter of Justice 1807 – Penang
¡ Second
Royal Charter of Justice 1826 – Penang, Malacca & Singapore
¡ The
Third Charter of Justice 1855 – to reorganize the Court of Judicature
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
Federation of Malaysia
When Malaysia was formed in 1963 there
were three separate statutes authorizing the application of English Law:
a.
The
Civil Law Ordinance 1956 – Peninsular Malaysia
b.
Application
of Laws Ordinance 1951 – Sabah
c.
Application
of Laws Ordinance 1949 – Sarawak
The CLO was extended to Sabah and
Sarawak by the Civil Law Ordinance (extension) Order 1971 with effect from 1
April 1972. Today, it is the Civil Law Act 1956 (Act 67) (Revised 1972)
incorporating all the three earlier statutes. The extension is prescribed in
three sections: Section 3, Section 5 and Section 6.
MANNER OF RECEIVING ENGLISH LAW IN PRESENT DAY
MALAYSIA
English
law has been received in Malaysia either:
• expressly,
as provided in Section 3 (1) of the Civil Law Act 1956;
• impliedly,
when the court decides cases according to "justice and right".
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)
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."
ENGLISH COMMON LAW AS A SOURCE OF LAW
Reviewed by Kamaruddin Mahmood
on
11:37:00 PTG
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