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English Law and it’s application in Malaysian Court

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nur amalina

on 16 February 2014

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Transcript of English Law and it’s application in Malaysian Court

English Law and it’s application in Malaysian Court
Application of English Law in Malaysia
When Malaysia was
formed in 1963
there were
three separate statutes
authorizing the application of English Law.
GEN. APPLICATION OF EL
S.3(1)
provides that in the
absence of written law
in Malaysia, the courts in Malaysia shall apply :

English Law
In virtue
Article 160
of Federal Constitution includes ‘the
Common Law
in so far as it is in operation in the
Federation or any part thereof
’.
Reception of English Law in Malaysia
The British period began with the occupation of Penang in 1786.
AFTER FORMATION OF MALAYSIA
The
CLO 1956
was
extended to Sabah & Sarawak
by the
Civil Law Ordinance (Extension) Order 1971
which took effect from
1/4/1972.
That qualification concern the extend to which English Law is applicable in Malaysia.
Found in
Civil Law Act 1956 (Act 67) (Revised 1972) (CLA 1956)
CLA 1956
Under
section 3
of that act
English law
means the
Common Law of England and the Rules of Equity.
In the case of
Goods of Abdullah
, Recorder Malkin viewed that Muslim Law
could not be applied
‘unless by the express provisions of
the Charter of 1807
( First Charter of Justice).
Due to this interpretative process, EL was accepted as the lex loci of Penang.
The CLO 1956 - Peninsular Malaysia
Application of Law Ordinance 1951 - Sabah
Application of Laws Ordinance 1949 - Sarawak
The
CLA 1956
is the
current statutory authority
for the application of EL in Malaysia.
The extend of application of EL is prescribed in the three sections:
Section 3
Section 5
Section 6

(a) in
West Malaysia

Common Law & Rules of Equity
( Cut-off date: 7/4/1956)

(b) in
Sabah
-
Common Law & Rules of Equity + Statutes of Gen Application
( Cut-off Date: 1/12/1951)

(c) in
Sarawak
-
Common Law & Rules of Equity + Statutes of Gen Application
( Cut-off Date: 12/12/1949 )

SPECIFIC APPLICATION OF EL
S.5
provides for the application of EL in
commercial matters.
s.5(1)
- reception of EL in commercial matters in
West Malaysia other than Penang & Melaka stops at the cut-off date.

s.5(2)
- continuing reception of EL in commercial matters in
Sabah, Sarawak, Penang & Malacca.

NON-APPLICATION OF ENGLISH LAND LAW
S.6
expressly
excludes
the application in Malaysia of the EL (i.e Common Law and Rules of Equity) concerning land tenure.
It was enacted
to prevent the wholesale application of EL under s.3(1) to land matters
in Malaysia.
(Because there already
existed local legislation concerning land matters
when
CLO
was enacted in 1956.)
Such local legislation incorporated the:
Torrens System in FMS & UMS
Deeds System in Melaka & Penang
The Torrens System
first introduced
in Malay States in the
second half of 19th
century is based on
Australian system of land administration.
System based on –
registration of land title
designed to provide simplicity and certainty considered superior to and more effective than English Deeds System.
Torrens System is now the system in force :

Penang & Melaka
- National Land Code (Penang & Melaka Titles) Act 1963 (Act518) (Revised 1994).
other States in WM
– National Land Code 1995 (Act56)
Sarawak
– Land Code (Cap 81)
Sabah
– retains a
different non-Torrens system
under the
Land Ordinance
(Cap 68)
REFERENCE
Wan Arfah Hamzah (2009), A First Look at The Malaysian Legal System, Oxford Fajar Sdn Bhd.
THANK YOU
nur_amal
Q & A
GROUP MEMBERS:
- Amalina Syuhada
- Anis Syahidah
- Nur Amalina
- Nurul Naimah
Full transcript