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."