DEVELOPMENT & FORMAL

RECEPTION OF ENGLISH LAW

UMY 1612

Definitio
n

Cut-off
date

Englis
h Law

Other
statutes

Civil Law
Act

Introduction

English law is regarded as one of the sources of Malaysian

law

English law has been received in Malaysia by two ways:

directly or expressly and indirectly or by implication.

The law was expressly or directly received thru written

statutes such as Civil Law Act 1956

On the other hand, the law was impliedly received via

judicial decision i.e. when the court interpreted laws
according to the principles of justice and rights as
underlined by the English law.

Definition of English law

Article 160 of the Federal Constitution Law

includes common law in so far as it is in
operation in the federation or any part thereof.
This means that there is extent to the application
of English law in Malaysia.
Such application is already codified under the
Civil Law Act (CLA) 1956.
Section 3 of the CLA states the meaning of
English law i.e. the common law in England and
the rules of equity, and in prescribed
circumstances, English statutes

Common Law

The part of English Law which is based on rules

developed by the old common law courts (Courts
of Exchequer, Courts of Common Pleas and court
of Kings Bench) during the first three centuries
after the Norman Conquest (1066).
Common law is based on the customs common
throughout England in contrast to local custom
which was applied before the Norman Conquest
in 1066.
Common law is the unwritten law of England
based on the decision of the courts.

Rules of Equity

The part of English Law originally administered

by the Lord Chancellor and later by the Court of
Chancery, as distinct from that administered by
the courts of common law.
They are body of rules developed by the Lord
Chancellor and later by the old Court of Chancery
to supplement the common law and to correct its
inadequacy.
Common law and rules of equity would
sometimes conflict on principle therefore,
Section 3 of the Civil Law Act states that should
there be a conflict of laws, equity would prevail.
Examples: Trusts, equitable interest over

Development of English Law in the

Federation of Malaya

The formal introduction of English Law in Malay states took

place in Federated Malay States (FMS) in the year 1937
through the Civil Law Enactment 1937, passed by the FMS
Federal Council

Section 2 of the Civil Law Enactment 1937 provides:

Save so far as other provision has been or may hereafter be made by

any written law in force in the Federated Malay States, the common
law in England and the rules of equity as administered or in force in
England at the commencement of this Enactment, other than any
modifications of such law or any such rules enacted by statute, shall
be in force in the Federated Malay States: Provided always that the
said common law and rules of equity shall be in force in the Federated
Malay States and its inhabitants permit and subject to such
qualifications as local circumstances render necessary.

The Unfederated Malay States (UMS) on the other hand had

formally received the English law after formation of
Federation of Malaya on 1/2/1948 when the Civil Law
Enactment 1937 was extended to them by Civil Law
(Extension) Ordinance 1951.

Both statutes were later repealed and replaced by the Civil

Law Ordinance 1956 (CLO 1956) which was applicable to
the whole of Federation of Malaya, including Malacca and
Penang

Basically there were 3 provisions in the CLO 1956 which

were relevant to the application of English Law i.e. Section
3, 5 and 6

The Federation of Malaysia

1.
2.
3.
.

When Malaysia was formed in 1963, there were

three separate statutes authorizing the
application of English law:
Peninsular Malaysia - The Civil Law Ordinance
1956: Section 3, 5 and 6
Sabah Application of Laws Ordinance 1951
Sarawak Application of Laws Ordinance 1949
After the formation of Malaysia, the CLO was
extended to Sabah and Sarawak by the Civil Law
Order (Extension) Order 1971 effective from
1/4/1972.

Now, Civil Law Act 1956 combined the three

previous statutes and is the statute that
authorize the application of English law in
Malaysia.
The extent of the application of English law is
prescribed in 3 sections which are Section 3,
Section 5 and Section 6

s.3 - Application of U.K. common law,

rules of equity and certain statutes
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, subject however to subparagraph (3)
(ii):

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.

a)
b)
c)
.

Section 3 provides that in the absence of written

law, the courts in Malaysia shall apply the
common law and rules of equity existing in
England on
7 April in 1956 in West Malaysia
1 December 1951 in Sabah
12 December 1949 in Sarawak.
Subsections 1(b) and 1(c) of section 3 import
English statutes of general application into
Sabah and Sarawak respectively.
Due to the wording used in subsection 1(b) and
1(c) it raise an issue of whether the whole
English law, including statutes, or only common
law and rules of equity unmodified by statutes,
was applicable to West Malaysia?

According to Professor Bartholomew he holds

that such English statutes passed before 7 April
1956 are applicable. He contended that this is
because of sheer of necessity.

Joseph Chia on the other hand disagreed with the

view and judicial decision had shown agreement
with his view

General application of English

statutory law

Mokhtar v Arumugam (1959) 25 MLJ 232

Damages in the nature of interest for delay in returning
specific goods could be awarded in Malaysia is not
applicable here due to it being an English statute
remedy
Pushpah v Malaysian Co-operative Insurance Society
[1995] 2 MLJ 657
The High Court rejected the argument that an English
statutory provision relating to revocation of a nominated
beneficiary upon marriage should be adopted
Pemodalan Plantation Sdn Bhd v Rachuta Sdn. Bhd.
The defence of legal set off was not recognised as it is
an English statute defence.

Common law and rules of equity will only be

applicable under section 3(1) if such situation arises:
1. Absence of local legislation The application is
only allowed to fill in the lacunae (gaps) in the local
law.
2. Cut off dates Only common laws and rules of
equity existing in England on the date specified can
be applied to fill the lacunae in local laws.
3. Local Circumstances English law is applicable
only to the extent permitted by local circumstances
and inhabitants had to subject to qualifications
necessitated by the local circumstances.

a) Absence of local legislation

1.

2.

Attorney-General, Malaysia v Manjeet

Singh Dhillion [1991] 1 MLJ 167
In absence of any specific local legislation
concerning contempt of the court, English
common law is applicable.
Yong Joo Lin v Fung Poi Fong
Principles of English law have for many years
been accepted in the Federated Malay States
where no other provisions has been made by
the statutes.

b) Cut-off dates
1.

2.

3.

Leong Bee v Ling Nam Rubber Works [1970] 2 MLJ 45

Presumption that a fire which began on a mans

property arose from the some act or default for which
he was answerable has no application in Malaysia
because having been displaced by English statutes, the
presumption was no longer part of the common law of
England on 7April 1956
Lee Kee Choong v. Empat Nombor Ekor (NS) Sdn Bhd
& Ors

Their lordship need not consider development of English

law after 1956 because of the cut of dates.
Jamil Bin Harun v Yang Kamsiah & Anor.

English laws made after such dates were not binding

but persuasive. This was made by the Privy council in

c) Local circumstances
1.

2.

Choa Choon Neoh v Spottinswoode

Maxwell CJ stated that the English law can be
modified to suit the local inhabitants.
Syarikat Batu Sinar v UMBC Finance [1990]
2 CLJ 691

s.5 Application of English law in

commercial matters
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.

2)

In all questions or issues which arise or which have to be decided in the

States of Malacca, Penang, Sabah and Sarawak with respect to the law
concerning any of the matters referred to in subsection (1), the law to be
administered shall be the same as would be administered in England in the
like case at the corresponding period, 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.

Section 5 Civil Law Act 1956 provides for the

application of English law in commercial matters.

The term the law to be administered means that

section 5 allows for the application of English law
in commercial matters.

In Jamil bin Harun v. Yang Kamsiah & Anor,

Malaysian courts following English courts granted
mareva injunctions and Anton Piller order.

There seem to be two approaches to interpretation

of Section 5.

1st interpretation

Seng Djit Hin v. Nagurdas Purshotumdas Co [1923]

AC 444

Action for damages for failure to deliver goods because of the goods
being failed to deliver due to the shortages of ships during wartime
requisition. The trail judge issued English statute to be applicable in
the straits settlement as accordance to section 6 Civil Law Ordinance
(section 5 Civil Law Act today).

On appeal, the decision was reversed on the basis that the laws
applied are not part of mercantile law. The Privy council further
reversed the Court of Appeal decision. According to Lord Dunedin,
stated that the law administered was not a mercantile law but law as
to be administered in England. This means the entirety of English Law.

The court further states that the issue is to be determined whether the
matter at hand falls under the category provided under the section. If
it does falls under the category provided then it shall be administered
such as in England.

2nd Interpretation

Shaik Sahied Bin Abudllah Bajerai v. Sockalingam Chettiar

(1933) 2 MLJ 81

The plaintiff sued for money allegedly due on a promissory note and
cheque. In defence, the defendant relied upon the absence of a
written memorandum as required under the English Moneylenders Act.
The dispute was whether that statute can be applied. At trial, the
judge reasoned the statute was not applicable as this does not falls
under the categories in the section.
This decision was affirmed on appeal to the Court of Appeal. However
in Privy Council, Lord Atkin used a different approach in affirming the
decision, he held that the statutes were not part of the mercantile law
because they contained saving clauses excluding from their scope the
borrowing of money in the course of ordinary commercial transactions.
As the statutes were not part of mercantile law, an issue raised under
any of their provisions was not an issue concerning mercantile law. So
the statues are not applicable. This decision looks at the nature of the
statute sought to be applied.
The provision in local circumstances is absent from section 5,
however, it is assumed that the term local circumstances exist.

s.6 Immovable property

Nothing in this Part shall be taken to introduce

into Malaysia or any of the States comprised
therein any part of the law of England relating to
the tenure or conveyance or assurance of or
succession to any immovable property or any
estate, right or interest therein.

Section 6 excludes the application of English land law

in Malaysia
The Torrens system, was first introduced in the Malay
states is based on Australian system of land
administration.
It is a system based on registration of land titles,
designed to provide simplicity and certainty.
However, there was an issue of whether the general
equitable principles which are common in English
land law would also be excluded
There are two views:
1. Equitable principles are totally excluded
2. General equitable principles are acceptable to the
extent that they are not precluded by local legislation
& suitable with local circumstances

Torrens System is viewed as a comprehensive

system as contained under the National Land
Code.

In the case of United Malayan Banking

Corporation v Pemungut Hasil Tanah, Kota
Tinggi [1984] 2 MLJ 87
The court stated that the National Land code is a

complete and comprehensive code of law governing

the tenure of land in Malaysia and there is no room
for the importation of any rules of English law except
if the Code expressly provide for it.

The contrary proposition is that the National Land

Code does not cover all the relations between the two
parties to land transactions. The National Land Code
merely professes to be comprehensive.

This is because the rights of parties are only

regulated after registration and not before
registration. This prohibits equitable principles as is
applicable under section 3 (1) of the Civil Law Act.

This is also consistent under Section 206(3) of the

National Land Code which describe that dealings
should be effected in the statutorily prescribed
manner shall not affect the contractual operation of
any transaction relating to alienated land or any
interest therein.

Specific Reception of English Law

in Other Statutory Provisions

Other statutes in Malaysia does expressly allow

English law to be applicable in Malaysia such as
Section 27 of the Civil Law Act, Section 47(1) of
the Partnership Act and Section 101(2) Bills of
Exchange Act.
S.27, Civil Law Act Infants
In all cases relating to the custody and control of infants the

law to be administered shall be the same as would have been

administered in like cases in England at the date of the
coming into force of this Act, regard being had to the religion
and customs of the parties concerned, unless other provision
is or shall be made by any written law.

Section 47(1) Partnership Act 1961

The rules of equity and of common law applicable in

partnership shall continue in force, except so far as they

are inconsistent with the expressed provisions of this Act.

Section 101(2) Bills of Exchange Act 1949

Subject to the provisions of any written law for the time

being in force, the rules of the common law of England,

including the law merchant shall, save in so far as they are
inconsistent with the express provisions of this Act, apply
to bills of exchange, promissory notes, and cheques.