Is English Law relevant to our legal system today?

English Law has been received in Malaysia and it is done either expressly or by
implication. It is express in Section 3(1) of the Civil Law Act 1956 where the court is
required to apply in West Malaysia or any part thereof.... the common law of
England and the rules of equity as administered in England.. It is implied that the
court interpret and instruction to decide cases according to justice and right as
implying the reception of English Law. English Law means as both principles of
common law and equity made by the superior courts of UK where common law
means rule of law that were made by royal judges based on the customary laws
that were commonly applied by the people. The Common law is the unwritten or
unenacted law of England where it based solely on decisions of the courts. Equity,
on the other hand is to supplement the common law whereby it does not
contradict the common law but aims to correct its rigidity. Unlike common law,
equity is a discretionary system of justice whereby it is not available as of right, it
may not be granted if the plaintiff is considered morally undeserving. There are
three(3) separate statues authorizing the application of English Law in 1963 when
Malaysia was formed namely; The CLO 1956 in West Malaysia, Application of Laws
Ordinance 1951 in Sabah and Application of Laws Ordinance 1949 in Sarawak.
After the formation of Malaysia, the CLO 1956 was extended to Sabah and Sarawak
by the Civil Law Ordinance (Extension) Order 1971. Today, all three earlier statutes
were incorporated in the Civil Law Act 1956 (Act 67) (Revised 1972). The extent of
application of English Law is prescribed in Civil Law Act 1956 in Section 3, 5 and 6.
Under Section 3 CLA 1956, the application of general English Law is stated in
section 3(1). The applicability of English common law and rules of equity in West
Malaysia as administered in England on 07 April 1956 has been stated in section
3(1)(a). Section 3(1)(b) stated that the applicability of English common law and
rules of equity and statues of general application in Sabah as administered or in
forced in England on 01 December 1951. Section 3(1)(c) stated that the
applicability of English common law and rules of equity and statutes of general

application in Sarawak as in forced in England on 12 December 1949.

It is noted that Section 3 of the CLA 1956 only requires any court in west Malaysia
to apply the common law and the rules of equity as administered in England on 07
April 1956. However, the supreme court in Commonwealth of Australia v
Midford (Malaysia)Sdn. Bhd. & Anor [1990] 1 MLJ 475 held that the
development of common law after 1956 may well applicable in Malaysia.

The Malaysian Court shall, in the absence of local law, apply the common law of
England and the rule of equity, as administered in England on 7 April 1956 in West
Malaysia, 1 December 1951 in Sabah and 12 December 1949 in Sarawak as
illustrated in case of Lee Kee Choong v Empat Nombor Ekor. In this case, the court
affirmed that any subsequent march in English law in England would not be
embodied in local legislation after the cut-off dates. Subsections 1(b) and 1(c) of
section 3 import English statutes of general application into Sabah and Sarawak
respectively.
However, in practice the courts may follow developments in English
common law after such dates. English decision made after such dates, though not
binding, are persuasive as illustrated in the Privy Council decision in Jamil Harun v
Yang Kamsiah. In this case, it was held that it is correct for the Malaysian court to
decide and refers to English case law, since it is persuasive in nature. This practice
has allowed for continuing reception of English law in Malaysia.
More then that, there are two other conditions for the application of English
law apart from cut-off dates. First is there is lacuna in local law. This qualification is
contained in the opening proviso of this section. This proviso is merely the
statutory recognition to the application of English law to fill the lacunae of
loopholes in our local law. In this case of AG Malaysia v Manjeet Singh, where the

court held that in the absence of any specific local legislation concerning contempt
of court, the common law shall be applied under section 3 of CLA 1956.
The next condition for the application of English law in Malaysia is suitability
to the local circumstances. English law is applicable to the extent permitted by
local circumstances and inhabitants, subject to qualification necessitated by local
circumstances. This can be seen in the case of UMBC v Syarikat Batu Sinar where
the court held that the English that would like to be applied in Malaysia must be
suitable with the local circumstances or local inhabitants. The judge also added
that we should develop our own common law by directing our mind to the local
circumstances and local inhabitants.
Under section 5 of CLA 1956, it provides the application of English law in
commercial matters. In this section 5(1), for the questions arise which have to be
decided in West Malaysia other than Penang and Malacca, the law shall be applied
on commercial matters shall be the same as administered in England in the like
case at the date of this Act coming into force. In subsection (2), for the questions
arise which have to be decided in Malacca, Penang, Sabah and Sarawak, the law
that shall be applied on commercial matters shall be the same as administered in
England in the like case at corresponding period.
The different terminology used by section 5 compared to section 3 shows
that section 5 introduces the whole of English law including statues, which means,
greater reception of English law on commercial matters. More than that, the
different wording between subsections (1) and (2) of section 5 means that there is
difference in the extent of which English law is applicable between the previously
established places. Theoretically, in commercial matters, there is a continuing
reception of English law in the four states while for the other states the reception
stops at the cut-off dates.
Even though under section 5, it provides reception of English law for

commercial matters, section 6 expressly excludes the application in Malaysia of the

English law concerning land tenure. This section was enacted because it intended
to prevent the wholesale application of English law under section 3(1) to land
matters in Malaysia since there already local legislation concerning land matters.
Referring to the above statement, I am in the opinion that English law is still
relevant in our legal system today as English law may only be applied where (1)
there is no local law governing the matter and (2) if it is suitable to the
local circumstances.