Question

English common law and the rules of equity form a part of the law of Malaysia. Discuss the extent of the application of the English common law as applied in Malaysia today.

Answer 1

Answer:

English common law in malaysia: The law of Malaysia is mostly founded on the customary law lawful framework that implies that English law shapes some portion of the laws of Malaysia. Article 160 of the Federal Constitution expresses the meaning of law which incorporates 'the custom-based law to the extent that it is inactivity in the Federation or any part thereof' that worries the degree to which the English law is material in Malaysia. Section 3 of the Civil Law Act, 1956 (Act 67) (Revised 1972) gives the importance of the English law which signifies 'the customary law of England and the guidelines of value' and, in endorsed conditions, English resolutions.

Application of English common law in Malaysia:

• In 1963, when Malaysia was shaped, there were three separate resolutions approving the utilization of English Law which are the Civil Law Ordinance 1956 (CLO 1956) in Peninsular Malaysia, the Application of Laws Ordinance 1951 in Sabah just as the Application of Laws Ordinance 1949 in Sarawak.
• With impact from 1 April 1972, after the arrangement of Malaysia, the CLO 1956 was reached out to Sabah and Sarawak by the Civil Law mandate (Extension) Order 1971. The Civil Law Act 1956 (Act 67) (Revised 1972) (CLA 1965) being joined to all the three prior rules that are the statutory expert for the utilization of English law in present Malaysia. The degree of the use of English law is endorsed in the accompanying three areas which are Section 3, Section 5 and Section 6.
• Section 3 (1), it accommodates the general utilization of English law. It expresses that:
• Spare so far as other arrangement has been made or may henceforth be made by any composed law in power in Malaysia, the Court will:
• In West Malaysia or any part thereof, apply the precedent-based law of England and the standards of value as regulated in England on the seventh day of April 1956;
• In Sabah, apply the custom-based law of England and the principles of value, together with resolutions of general application, as managed or in power in England on the first day of December 1951;
• In Sarawak, apply the custom-based law of England and the principles of value, together with resolutions of general application, as directed or in power in England on the twelfth day of December 1949, subject anyway to sub-segment 3(ii):
• Given consistently that the said custom-based law, rules of value and resolutions of general application will be applied so far just as the conditions of the States of Malaysia and their particular occupants grant and subject to such capabilities as neighborhood conditions render fundamental.
• To put it plainly, segment 3(1) gives that the courts in Malaysia will apply the precedent-based law just as rules of value existing in England without composed law on seventh April 1956 in West Malaysia, first December 1951 in Sabah and twelfth December 1949 in Sarawak.
• In sub-segments (1)(b) and (1)(c) of segment 3 expresses that English resolutions of general application Sabah and Sarawak will be applied. The distinction in wording between these subsections from one viewpoint and subsection (1)(a) then again sustained a debate which before emerged from area 3(1) CLO 1956 which was in exactly the same words equivalent to segment 3(1)(a) CLA 1956. Are English rules of general application pertinent in West Malaysia? Two perspectives, each as relevant as the other, exist. Teacher Bartholomew, composing on area 3(1) CLO 1956, holds that such English resolutions are applicable.39 Joseph Chia, in talking about the comparing arrangement in the CLA 1956, communicates an opposite opinion.40 Judicial sentiment bolsters Joseph Chia's view.