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DISCUSS THE EXTENT TO WHICH ENGLISH

LAW IS A SOURCE OF MALAYSIAN LAW.


 Section 3(1) of the Civil Law Act 1956 provides for the general application of English Law.It
states :
 In West Malaysia or any part thereof,apply the common law of England and the rules of
equity as administered in England on the 7th day of April 1956;
 In Sabah ,apply the common law of England and the rules of equity, together with statutes of
general application , as administered or in the force in England on the 1st day of December
,1951;
 In Sarawak,apply the common law of England and the rules of equity, together with statutes
of general application, as administered or in the force in England on the 12th day of
December,1949,subject to subsection3(ii):
Provided always that the said common law,rules of equity and statutes of general application
shall be applied so far only as the circumstance of the States of Malaysia and their respective
inhabitants permit and subject to such qualification as local circumstance render necessary .
Common Law and rules of equity apply under Section 3(1) subject to the following
qualifications :
 Absence of local legislation
 Cut-off dates
 Local Circumstance
Absence of Local Legislation
 Exist in the opening proviso in Section 3(1) Civil Law Act 1956
 The qualification is merely the statutory recognition of judicial practise of resorting to English
Law to fill lacunae (gaps) in the local law as stated in the case of Yong Joo Lin v Fung Poi
Fong.
 This qualification is illustrated in AG Malaysia v Manjeet Singh which the court held that in the
absence of any specific local legislation , the common law should be applied under section
3 of the Civil Law Act 1956.
 In R v Gray , the principal stands that since there was no Malaysian Legislation that could
govern the issue , the court had refrred to common law principles of equity as it was allowed
in s3 of CLA
2.Cut-off dates
 Only common law and rules of equity existing in England on the dates specified in section 3
of the Civil Law Act 1956 can be applied to fill the lacuna in local law.
 In the case of Lee Kee Ching v Empat Nombor Ekor, the court held that they need not
consider the development in English law after dates specified in section 3 of the Civil Law Act
1956 “as any subsequent march in English authority is not embodied”
 In addition , in the case of Leong Bee v Ling Nam Rubber Works , the court held that a
presumption “that a fire which began on a man’s property arose from some act or default for
which he was answerable” has no application in Malaysia because having been displaced
by English statutes because that presumption was no longer part of common law of England.
 The development in English common law after such dates though not binding , are
persuasive as stated in the case of Jamil bin Harun v Yang Kamsiah, which Lord Scarman
said that ‘it is up to the court of Malaysia to decide whether to follow English case law subject
to the statute law of the federation .
 Modern English authorities may be persuasive but are not binding.
3.Local Circumstance
 English law is applicable only to the extent permitted by local circumstance and inhabitants,
and subject to qualification necessitated by local circumstance. This qualification ,
contained in the concluding proviso to section 3(1) , is commonly referred to as the “local
circumstance “ proviso.
 The effect of the “local circumstance” proviso in the application nof English Law can be
seen in the case of Syarikat Batu Sinar v UMBC Finance , concerning the negligent failure of
a finance company to endorse its claim to ownership of a tractor on the Vehicle Registration
Card and whether such negligence forfeit its claim.The court held that English practise of
endorsement of vehicle ownership claims by finance company is different from that in
Malaysia. Whereas the English practise is based purely on a voluntary arrangement , the
Malaysian practise is based on statutory provisions.Invoking the proviso to section3(1) of the
Civil Law Act 1956, the judge held that the difference in law and practise in Malaysia
constitue “such a distinctive local circumstance of the local inhabitants of West Malaysia”
that English cases on the failure to register a vehicle owbership claim should not be allowed.
Specific Application of English Law – Section 5 Civil Law Act 1956
 Section 5 of the Civil Law Act 1956 provides for the application of EnglishLaw in commercial
matters.Section 5(1) states that “In all question or issues which arises or which have to be
decided in the States of West Malaysia other than Malacca and Penang which respect to
the law of partnership,corporation,banks and banking ,principals and agents,carries by air
,lamd and sea ,marine insurance ,average life and fire insurance , and with respect to
merchantile 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 arise 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(2) of Civil Law Act 1956 states that “In all question 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 administerd
shall be the same as would be adminsiterd 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 cse
other provison is or shall b enade by nay written law.
 The difrence in wording between on subsection (1) and (2) of section 5 of the Civil Law Act
1956 means there is difference in the extent to which English Law is applicabke in
commercial matters in the Malay States , Malacca ,Penang ,Sabah and Sarawak .
 Section 5(1) introduces into the Malay States the law administered in England on 7 April 1956
whereas the section 5(2) introduced the law existing on the same date that the issue has to
be decide in Malacca , Penang,Sabah, and Sarawak .
 Thus, in commercial matters, there is a continuing reception of English law in these
Malacca,Penang,Sabah, and Sarawak while in Malay States the reception stops at the cut-
off date.
 The different terminology used in section 5 (the law to be administered) compared to that in
section 3(1) (stated whether common law ,rules of equity or statute apply) shows that
section 5 introduces the whole of English law including statutes. Local legislation has been
encated concerning many commercial matters and thus it reduce the reliance on section 5
of the civil law act 1956 which may cause problem in approach to the application and
interpretation it.
 In Conclusion, there is no single uniform principle governing the
applicability of English Law in Malaysia. It may be noted that
once an English rule is voluntarily accepted by the courts , it
become a local law that is binding under the doctrine of judicial
precedent .A Mlaysian court has a choice whether to apply the
foreign rule or not, but where it has choosen to do so the rule
becomes local.Although the rule becomes local,its sources
remains English .The significance in these 2 sections is that it has
brought about provisions which provided for the reception of
English law in Malaysia.
3) If an act of Parliament clashes with a State
Enactment , which law will prevail ?
Refer to Article 75 and Schedule 9 List I, ii ,iii
Federal Constitution :
 Parliament
 Dewan Undangan Negeri
3 Different Type of lists:
 Federal list
 State List
 Concurrent List
Case : Mamat bin Daud v Gov of Malaysia
Article 75 of Federal Constitution :
If any state law is inconsistent with a federal law , the federal law shall prevail and the state
law , shall to the extent of the inconsistency , be void.
In the case of Ah Thian v Governmmet , the court held that the
courts can invalidate a law on 3 grounds

 Violation of Federal-State division of Powers

 Inconsistency with the constitution e.g : violation of fundamental rights

 State laws is inconsistent with Federal Law (Article 75 of Federal Constitution)


State of Government of Negeri Sembilan & Ors v
Muhammad Juzailli bin Mohd Khamis [2015] 6 MLJ 736
o The respondents suffered a medical condition called (GID).
o They applied to High Court for judicial review under O53 r3 of the Rules of High Court 1980
seeking declaration that s66 of the Syariah Criminal Enactment Negeri Sembilan 1992
Section 66 was inconsistent with art5(1) ,8(2) ,9(2) and 10(1)(a) of FC , and had no effect
and did not apply to any person who was psychologically a woman and suffred frm GID.
o The High Court dismissed the judicial review but COA reversed the decision on appeal ,
and declared S66 unconstituitional for being inconsistent with art5(1) ,8(2) ,9(2) and 10(1)(a)
of FC .
o Held : FC held that the legislation on Islamic Law passed by State Legislature had to comply
with the provisions on fundamental liberties in the articles as mentioned above.
Mamat bin Daud v Government of Malaysia

 The case discussed the problem in determining competency of legislative bodies when a
law passed seem to fall both Federal and State Legislative Power
 The court held that it is a law on the subject of religion with respect to which only the states
have power to legislate under Article 74 and 77 of Federal Constitution.
 Section 298A of the Penal Code is a law with respect to which Parliament has no power to
make law and that section 298A of the Penal Code is invalid and therefore null and void
and of no effect.
The City Council of GeorgeTown v The Government of
The State of Penang

• The Municipal (Amendment) (Penang) Enactment 1966 was declared void by virtue of
Article 75 of FC on the ground that it is inconsistent with Local Elections Act 1960.
Conclusion
Parliament is not supreme , its legislative powers
are limited and controlled by the constitution
.However when there is a clash in between an act
of parliament and state enactment , an act of
parliament would prevail in accordance with
Article 75 of FC.