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“Principles of English Law have for many years been accepted in the

Federated Malay States where no other provision has been made by statute.
Section 2(1) of the Civil Law Enactment therefore merely gave a statutory
reception to a practice which the court had previously followed.”

Discuss.

1. The signing of the Federation Treaty 1895 formed the Federated Malay
States (FMS) which includes 4 states: Perak, Selangor, Negeri Sembilan
and Pahang.
2. English law was formally received into the FMS through the Civil Law
Enactment 1937. Section 2(1) of the said Enactment reads as follow:
“Save in 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 of England and the rules of equity, as administered in
England, at the commencement of this Enactment, other than any
modification of such law or any such rules enacted by statutes, 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 so far only as the
circumstances of the Federated Malay States and its inhabitants
permit are subject to such qualification as local circumstances
render necessary.”

3. However, the principles of English law are said to have been accepted in the
Federated Malay States long before that. Hence, it would be appropriate to outline
the history of these states in order to track the reception of English law in these
states.

a) The Malay states were brought under British protection in the middle of the
19th century, due to these factors:
i. The state of anarchy (a state of disorder due to absence or non recognition of
authority) due to conflicts among Malay aristocrats and in between the Chinese
triads.
ii. Pirates attacks on British ships alongside the Straits of Melacca which
threatened the British’s investments
iii. Chinese and European traders imploring the English authorities to intervene.

b) Because of these, the 1st intervention of British in the Malay states occured by
signing the Pangkor Treaty 1874, this was closely followed by N9, Selangor and
Pahang.
c) By 1888, the English had firm control over these 4 states through the
Residential System. Each Malay States will have their own Resident General(RG)
as the representative of the British Goverment. The RG will advise in the Sutan
on administrative matters of the state, except in matters pertaining customs and
religions.

d) Hence the FMS was finally formed in 1895.

e) As the Straits Settlements was a British Colony, while the FMS had the status
of British protected states, the FMS certainly was not on their territory.Therefore
English law was not introduced into the FMS states as the lex loci, because these
states remained sovereign; the sultan was still the head of the state.

f) The reception of English law was only formally accepted and in 1937 by the
Civil Law Enactment 1937, despite the fact that reception of English law occured
informally long ago.

The informal reception of English law is believed to happen in 2 ways:


i. Through voluntary enactments of legislations by the Malay states
 regarding specific matters that arose, where there’s no suitable law to
apply, English law to be applied as an alternative.
 Before the intervention of the Brits, the applicable law in the states were
the Mohamedan law and Malay customary law (which were applied to
Muslims). Brit subjects were subjected to English law only and other
Asiantics were subject to their personal laws.
 Example 1: Ong Cheng Neo v Yeap Cheah Neo [1872] 1 Ky. 326
-issue: What’s the law applicable in the distribution of estates/properties
for a Chinese born in China but passed away in the state of Selangor?

 This shows that customary law was once enforced but then problems
arised. Therefore, laws based on English laws principles were enacted and
is said to be applied in the malay states, informally.
 Example: The Penal Code based on the Indian Penal Code, Evidence Act
based on Indian Evidence Act, Indian Contracts Act, Criminal Procedure
Code

ii. Decisions of Courts by member of the Bar (lawyers) & Bench (judges),
 Since the members were almost entirely trained and educated based on
English law through the decisions of the courts, it’s natural for them to
refer to and apply English law whenever there’s a lacuna in the local laws.
Hence, English law always had greater weight in their practice.
 Example 1: Gov of Perak v Adams
 Issue: whether the principle of strict liability laid down in Rylands v
Fletcher was applicable in Perak
 Example 2: Leonard v Nachiappa Chetty [1923] 4 FMLSR 265
 Facts: P alleged that D had died b4 the passing og a consent judgement in
a prev suit. On this being discovered, P applied by motion to set aside the
judgement. During the hearing, 2 issues of law arose:
 i.e: 1. Whether P can proceed by motions or if he should file a suit?
 i.e: 2. What was the result if nachiappa died b4 the consent judgement?
 The counsel for P had relied English law whereas the counsel for D not
only entirely argued based on English law but also stated that he didnt
know what the local procedures were. JC Reay had to remind the said
counsels that he should take local law into consideration and to ascertain
what it was before citing English decision as authoritative precedents.

As a conclusion, the enactment didn't really affect any great change to the
de facto situation but merely gave statutory endorsement to the courts to
do what they had already been unofficially doing long before the passing
of that legislation.