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English Law in Malaysian Legal & Judicial Systems

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noor fadhzana mohd noor

on 18 December 2014

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Transcript of English Law in Malaysian Legal & Judicial Systems

The English Law
The Charter of Justice in the Straits Settlements
The Civil Law Enactment 1937 in the Federated Malay States
The Civil Law (Extension) Ordinance 1951 in the Unfederated Malay States

The Civil Law Act 1956
s 3 of the Act stipulates on the application of English Law, i.e. Common Law and Rules of Equity

As for the Peninsular Malaysia, the corresponding date is 7th April 1956
Sabah is at 1st December 1951 and Sarawak at 12th December 1951
Effect of Civil Law Act 1956
In the case of wills as In the Goods of Abdullah (1835), 21 the court accepted the desire of the deceased to transfer the whole of his assets by wills, though it contravened to Islamic principle. However, the judge interpreted the desire of the deceased as lawful and goes well with the law that applied in the region. So, the will was decided to be valid and enforceable, regardless of the principle in Islamic law that only one-third of the estate could be distributed under the method of will.

Chou Choon Neoh v Spottiswoode
United Malayan Banking Corp Bhd & Anor v Pemungut Hasil Tanah, Kota Tinggi
Seng Djit Hin v Nagurdas Purshotumdas
Sheik Sahied bin Abdullah Bajerai v Sockalingam Chettiar
Land Law
United Malayan Banking Corp Bhd & Anor v Pemungut Hasil Tanah, Kota Tinggi
Bhagwan Singh & Co. Sdn. Bhd v Hock Hin Bros Sdn. Bhd.
Conditional Application of English Law
Subject to two limitations;

Applied in the absence of local statutes covering the same matter;
Only that part of the English law that is suited to local circumstances will be applied
English Law in Malaysian Legal & Judicial Systems

Edmunds J.C in Shaikh Abdul Latif v Shaikh Alias Bux, said, " The British Treaties with the Ruler of these States merely provided that the advice of the British administrators should be followed and in accordance with such advice, Courts have been established by Enactment, British judges appointed and a British administration established.."
Penang received English Law through the First Charter of Justice 1807 to extend the jurisdiction of Court of Judicature of Prince of Wales Island to Penang

The Second Charter of Justice 1826 was to extend the jurisdiction to Malacca and Singapore superseding Dutch Law (Holland Treaty 1824)

The Third Charter of Justice 1855 was to fix deficiencies in the application of English law in the Straits Settlements resulting in two sets of courts, one for Penang, the other for Malacca and Singapore
Maxwell C.J. in Choa Choon Neoh v Spottiswoode said, "In this colony, so much of the law of England as was in existence when it was imported here, and as is of general [and not merely local] policy, and adapted to the condition and wants of the inhabitants, is the law of the land; and further, that law is subject, in its application to the various alien races established here, to such modification as are necessary to prevent it from operating unjustly and oppressively on them"
In Article 160 of the Federal Constitution states the definition of law which includes ‘the common law in so far as it is in operation in the Federation or any part thereof’ that concerns the extent to which the English law is applicable in Malaysia.
In the Section 3 of the Civil Law Act 1956 (Act 67) (Revised 1972) gives the meaning of the English law which means ‘the common law of England and the rules of equity’ and, in prescribed circumstances, English statutes.

The common law is the body of rule developed by the old common law courts - Court of Exchequer, Court of Common Pleas and Court of King’s Bench – that distinct from the old Court of Chancery and were extinct today’s world. Before Norman Conquest in 1066, the common law was applied in England and based essentially on customs common throughout England in contrast to local customs. The common law is the unwritten or unenacted law of England and it based solely on decisions of the courts.

Equity means ‘fairness’ and is the body of rules developed first by the Lord Chancellor and by the old Court of Chancery in the end of the fifteenth century. Equity, unlike the common law, is not a complete body of rules which can exist on its own and it merely filled the gaps in the common law and softened the strict rules of common law. Furthermore, equity is a discretionary system of justice. An equitable remedy is not available as of right; it may not be granted if the plaintiff considered morally undeserving. The equitable remedies offered were injunction, specific performance, rescission and rectification that the major contributions of equity are the trust concept.

If there is a conflict between common laws and equity, the equity should always prevail (the Earl of Oxford’s case-1615)
The cut off date means that only English common and equity as administered in England on that date is applicable. Others that come after the cut off date are not binding but merely persuasive.
In Jamil bin Harun v Yang Kamsiah and Anor, Lord Scarman said;
" Their Lordship do not doubt that it is for the courts of Malaysia to decide, subject always to the statute of the Federation, whether to follow English case law. Modern English authorities may be persuasive, but are not binding. In determining whether to accept their guidance, the courts will have regard to the circumstances of the states of Malaysia.."
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