QUESTION ASSIGNMENT

Civil Law Act 1956 was revised in 1972 to harmonize the application of English law
throughout Malaysia.

In your opinion, is the objective achieved and discuss the extent to which the Civil
Law Act 1956 (Revised 1972) has achieve this objective.

SAMPLE ANSWERS

DECEMBER 2013 PART A QUESTION 1

STATE THE EFFECT OF THE RESIDENTIAL SYSTEM OF THE ADOPTION OF

ENGLISH LAW IN MALAY STATE

The residential system is a system where the British has indirectly forced into the
government of the Malay States that had accepted British protection. The Pangkor Treaty
have made a chance for the British to introduced the system. It involves the four states
which is Perak, Selangor Pahang and Negeri Sembilan which later known as Federated
Malay States.

This system gives has left significant effects specifically on the adoption of English Law
in the Malay states. The first effect is the reception of the English Law to the Federated
Malay state. Under this system, the resident would advise the Sultan on all matters of
administration and government except those concerning Malay religion and custom and
the Sultan is expected to act accordingly. Even though the Sultan remained as Head of
The State, they were obliged to act on the Resident’s advice. Through this situation, the
government was actually being run by the British residents which were responsible to the
Governor of Straits Settlements.

Next, the British Residential system also promotes uniformity of law. During the
interference by British in the administrations, the law applied throughout the land is the
English/common law and not different set of laws previously operated in the Straits
Settlement and the power of administration of justice is under British Resident. This
aspect has significantly smoothens the running of the government.
In addition, the effect of British residential system has weakened the role of the local law
such as Islamic Law and the Malay customary law as English law became the main and
basic law of the land. Even though the British residents does not have powers in matters
related to Islam and Malay customs, the reception of English law to some extent
weakened these two laws since the area of law govern by the local law is not the same
as before the application of English law.

In conclusion, the introduction of the residential system has both the positive and negative
side of its own.

June 2015 Part A Question 2

According to the Civil Law Act 1956 (Revised 1972), English Law must be suitable to local
circumstances before it can be applied in Malaysia. Explain this statement.

The extent of the application of English Law in Malaysia is prescribed in Section 3,

5 and 6 of Civil Law Act. The general application of English Law is stated under Section
3 of Civil Law Act:

a. In West Malaysia apply the common law of England and the rules of equity as
administered in England on 7 April 1956

b. In Sabah apply the common law of England and the rules of equity together with
the statutes of general application as administered in England on 1 December 1951

c. In Sarawak apply the common law of England and the rules of equity together with
the statutes of general application as administered in England on 12 December 1949

There are three qualifications of the application of English Law in Malaysia as stated in
Section 3 of Civil Law Act which are the absence of local legislation, cut off dates and
suitable with local circumstances. Firstly, for the absence of local legislation, it means that
the function of English Law to fill in lacunae (gaps) in local law. If there is no local law on
any matters, the courts may apply English Law. Secondly, for the cut off dates, it means
that only English Law existing in England on the date specified can be applied. Thirdly,
for the suitability with local circumstances, it means that if the local circumstances, local
inhabitants permit and subject to such qualifications as local circumstances render
necessary, only then English Law can be applied.

English Law is applicable only to the extent permitted by local circumstances and
inhabitants, and subject to qualifications necessitated by local circumstances. This
qualification, contained in the concluding proviso to Section 3(1), is commonly referred to
as the ‘local circumstances’ proviso.

The effect of the local circumstances proviso in the application of English Law can
be seen in Syarikat Batu Sinar v UMBC Finance, concerning the negligent failure of a
finance company to indorse its claim to ownership of a tractor on the Vehicle Registration
Card and whether such negligence forfeits its claim. The High Court (Malaya) noted that
the English practice of indorsement of vehicle ownership claims by finance companies is
different from that in Malaysia. Whereas the English practice is based purely on a
voluntary arrangement, the Malaysian practice is based on statutory provisions.

Invoking the proviso to Section 3(1) of Civil Law Act 1956, Peh Swee Chin J held
the difference in law and practice in Malaysia constitutes ‘such a distinctive local
circumstance of the local inhabitants of West Malaysia’ that English on the failure to
register a vehicle ownership claim should not be followed. Instead, he followed a decision
of the Brunei High Court. The learned judge added: “We have to develop our own
common law just like what Australia has been doing by directing our minds to the ‘local
circumstances’ or ‘local inhabitants’.

In conclusion, the extent of the application of English Law as a source of law in

Malaysia has the qualifications as stated in Section 3 of Civil Law Act which are absence
of local legislation, cut off dates and suitability with local circumstances. If all of the
qualifications have been fulfilled, only then the English Law can be applied in Malaysia.

June 2016 Part A Question 2

With reference to decided case, explain the qualification of cut-off dates as provided by
Section 3(1) of the Civil Law Act 1956 (Revised 1972).
 The extent of the application of English Law in Malaysia is prescribed in Section 3,
5 and 6 of Civil Law Act. The general application of English Law is stated under Section
3 of Civil Law Act:

a. In West Malaysia apply the common law of England and the rules of equity as
administered in England on 7 April 1956

b. In Sabah apply the common law of England and the rules of equity together with
the statutes of general application as administered in England on 1 December 1951

c. In Sarawak apply the common law of England and the rules of equity together with
the statutes of general application as administered in England on 12 December 1949

There are three qualifications of the application of English Law in Malaysia as stated in
Section 3 of Civil Law Act which are the absence of local legislation, cut off dates and
suitable with local circumstances. Firstly, for the absence of local legislation, it means that
the function of English Law to fill in lacunae (gaps) in local law. If there is no local law on
any matters, the courts may apply English Law. Secondly, for the cut off dates, it means
that only English Law existing in England on the date specified can be applied. Thirdly,
for the suitability with local circumstances, it means that if the local circumstances, local
inhabitants permit and subject to such qualifications as local circumstances render
necessary, only then it English Law can be applied.

Only common law and rules of equity (and in Sabah and Sarawak, English statutes of
general application) existing in England on the dates specified which are 7 April 1956 for
West Malaysia, 1 December 1951 for Sabah and 12 December 1949 for Sarawak can be
applied to fill the lacunae in local law. As the Privy Council put it in Lee Kee Chong v
Empat Nombor Ekor (NS) Sdn Bhd & Ors (concerning whether a valuation on the fair
price of shares could be questioned), their Lordships need not consider developments in
English Law after 1956 because under Section 3(1) of Civil Law Act 1956 states that ‘any
subsequent march in English authority is not embodied’.

There are several cases illustrate this qualification. In Leong Bee & Co v Ling
Nam Rubber Works, the Privy Council 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, the
presumption was no longer part of the common law of England on 7 April 1956.

However, despite the clear and categorical wording of Section 3(1) of Civil Law Act
to the effect that Malaysian courts shall apply English Law existing on the specified dates,
in practice the courts may follow developments in English common law after such dates.
English decision made after such dates, though not binding are persuasive. This was
made clear by the Privy Council in Jamil bin Harun v Yang Kamsiah & Anor. In an
appeal from Malaysia, the appellant argued that the Federal Court was wrong to follow
the English case of Lim Poh Choo v Camden & Islington Area Health Authority, a
decision of the House of Lords in itemizing damages in a personal injury case. The Privy
Council rejected the argument.

In conclusion, the extent of the application of English Law as a source of law in

Malaysia has the qualifications as stated in Section 3 of Civil Law Act which are absence
of local legislation, cut off dates and suitability with local circumstances. If all of the
qualifications have been fulfilled, only then the English Law can be applied in Malaysia.

DEC 2016 PART A Q2

Explain Professor G. W. Bartholomew’s rationale for the inclusion of English

statutes in s.3 (1) (a) of the Civil Law Act 1955 (Revised 1972).

There are two views whether English statutes of general application is applicable in West
Malaysia or not. First view is from Professor G. W. Bartholomew and the other is from
Joseph Chia. First view is in favour for allowing the application the statute of general
application supported by Prof G.W. Bartholomew. The rational for the inclusion of statute
first is not applying the English statute means applying an out dated law. Second is
applying common law and rules of equity without statute is the same with applying half of
the English law. Third is the definition of the word common law means the law applicable
in England.

Under section 3 (1) of CLA 1956, the Malaysian Court shall, in the absence of local law,
apply the common law of England and the rules of equity, as administered in England on
7 April 1956 in West Malaysia, 1 December 1951 in Sabah and 12 December 1949 in
Sarawak as illustrated in case of Lee Kee Choong v Empat Nombor Ekor (NS) Sdn
Bhd & Ors [1976] 2 MLJ 93. In this case, the Court affirmed that any subsequent march
in English law in England would not be embodied in local legislation after the cut-off dates.
The court also held that their Lordships should not consider the developments in English
law after 1956. Subsections 1(b) and 1(c) of sec 3 import English statutes of general
application into Sabah and Sarawak respectively.

However, in practice the Courts may follow developments in English common law after
such dates. English decision made after such dates, though not binding, are persuasive
as illustrated in the Privy Council decision in Jamil bin Harun v Yang Kamsiah & Anor
[1984] 1 MLJ 217. In this case, it was held that it is correct for the Malaysian court to
decide and refers to English case law, since it is persuasive in nature. This practice has
allowed for continuing reception of English law in Malaysia.

More than that, there are two other conditions for the application of English law apart from
cut-off dates. First is there is lacuna in local law. This qualification is contained in the
opening proviso of this section. This proviso is merely the statutory recognition to the
application of English law to fill the lacunae of loopholes in our local law. In the case of
AG Malaysia v Manjeet Singh Dhillon [1991] 1 MLJ 167, where the court held that in
the absence of any specific local legislation concerning contempt of court, the common
law shall be applied under sec 3 CLA 1956.

The next condition for the application of English law in Malaysia is suitability to the local
circumstances. English law is applicable to the extent permitted by local circumstances
and inhabitants, subject to qualifications necessitated by local circumstances. This can
be seen in the case of Syarikat Batu Sinar Sdn Bhd & Ors v UMBC Finance Bhd &
Ors [1990] 2 CLJ 691 where the court held that the English that would like to be applied
in Malaysia must be suitable with the local circumstances or local inhabitants. The judge
also added that we should develop our own common law by directing our mind to the local
circumstances and local inhabitants.

Under section 5 of this Act, it provides the application of English law in commercial
matters. In section 5 (1), for the questions arise which have to be decided in West
Malaysia other than Penang and Melaka, the law that shall be applied on commercial
matters shall be the same as administered in England in the like case at the date of this
Act coming into force. In subsection (2), for the questions arise which have to be decided
in Malacca, Penang, Sabah and Sarawak, the law that shall be applied on commercial
matters shall be the same as administered in England in the like case at corresponding
period.

The different terminology used by sec 5 compared to sec 3 shows that sec 5 introduces
the whole of English law including statutes, which means, greater reception of English
law on commercial matters. More than that, the different wording between subsections
(1) and (2) of section 5 means that there is difference in the extent of which English law
is applicable between the previously established places. Theoretically, in commercial
matters, there is a continuing reception of English law in the four states while for the other
states the reception stops at the cut-off dates.

In conclusion, even though under section 5 provides reception of English law for
commercial matters, section 6 expressly excludes the application in Malaysia of the
English law concerning land tenure. This section was enacted because it intended to
prevent the wholesale application of English law under section 3 (1) to land matters in
Malaysia since there already local legislation concerning land matters.
January 2013 (Q2), December 2015(Q1), July 2017(Q1)

Part B

With reference to section 3 of CLA 1956 and decided cases, discuss the extend of
the application of English Law as a sources of law in Malaysia (20 m)

Section 3 (1) of Civil Law Act 1956 stated that so far other provision has been
made or may hereafter be made by any written law in force in Malaysia, the court shall
apply common law and rule of equity administered in England on 7th April 1956 in West
Malaysia. However, in Sabah, the court shall apply common law of England and the rule
of equity together with statutes of general application administered in England on 1
December 1951 while in Sarawak on 12 December 1949.

The rule of equity, the common law and statutes of general application only applied
so far only with the circumstances of the statutes of Malaysia, respective inhabitants
permit and subject to such qualifications as local circumstances render necessary.

The condition for the application of English Law in West Malaysia is applicable
according to Professor Bartholomew while Joseph Chia holds it is not applicable. Judicial
Opinion also support the latter view that it is not applicable in Malaysia. In the case of
Jayakumari v Suriya Narayanan, the issue discussed was whether a Malaysian Court
has jurisdiction to grant interim relief based on English statutes while the court held that
English statutes not binding in our country. Another case to support this view is the case
of Pushpa v Malaysian Co-operative Insurance Society. Plaintiff sought to invoke an
English statutory provision to revoke a nomination by her deceased husband in his life
insurance policy made before their marriage. The court dismissed the application on the
ground that Section 3 (1) (a) Civil Law Act 1956 allows in West Malaysia the application
of common law of England and rules of equity and not the additional “statutes general
application”. The result is unjust in the circumstances but observed that it was parliament
to change the law if Parliament deems circumstances justify such change.

In Sabah and Sarawak, the rule of equity, the common law and the statutes of
general application under Section 3 (1) falls under the following qualification of absence
of local legislation, the cut-off dates, and the present of “local circumstances”.
 FIRSTLY, the qualification of the application of English Law is the absence of local
legislation. Section 3 explained the merely the statutory recognition of judicial practice of
resorting to English Law to fill the lacunae (gaps) in the local law. In the case of Yong
Joo Lin v Fung Poi Fong, Terrel ag. CJ give his judgement on principle of English Law
have for many years been accepted in the Federated Malays where no other provision
has been made by statutes. Section 2 of Civil Law enactment which gave statutory
recognition to a practice which the court previously followed. Same goes to the case of
Attorney General, Malaysia v Manjeet Sigh Dhillon, the court held the absence of any
specific local legislation concerning contempt of court the common law of contempt as
stated. In the case of United Malayan Banking Corp Bhd & Anor v Pemungut Hasil
Tanah, Kota Tinggi addressed the issue whether English equitable rule with regard to
relief forfeiture could be applied to a forfeiture of alienated land resulting from an action
duly brought under local National Land Code. The Privy Council held that NLC was a
complete comprehensive code of law governing the land tenure, other matters affecting
land in Malaysia, no room for importation of any relevant rule unless the code itself may
expressly provide for this.

SECONDLY, the qualification of the application of English Law is the cut-off date.
Only the common law and rule of equity (in Sabah and Sarawak, the statutes of general
application) administered in England on the specific date could be applied which are in
West Malaysia 7 April 1956, 1 December 1951 in Sabah and 12 December 1949 in
Sarawak that could fill in the lacunae in local law. In the case of Lee Kee Choong v
Empat Nombor Ekor concerned a question whether a valuation on the fair price of share
could be question. The court held that court need not considered development in English
law after 1956 because under section 3 (1) Civil Law Act 1956 states that ‘any
subsequent march in English authority is not embodied’. Another interesting case to be
share is Leong Bee v Ling Nam Rubber Works, a presumption on fire began at a man’s
property arose from some act or default for which he was answerable. This application of
English statutes is not applicable because presumption was no longer part of the common
law of England on 7 April 1956. The court may follow developments in English Common
Law after such date, though it is not binding but persuasive. In the case of Jamil bin
Harun v Yang Kamsiah, the court held that it was for the court of Malaysia to decide
subject to the statutes law of Federation whether to follow English Case as Modern
English authorities is not binding but persuasive.

LASTLY, the qualification of the application of English Law is the suitability with
‘local circumstances’ which means the English law only applicable to the extent permitted
by local circumstances and inhabitant. In the case of Syarikat Batu Sinar v UMBC
Finance. The issue arose when the company had negligently fail to endorse its claim to
ownership of vehicle Registration Card and whether the negligent forfeits its claim. The
High Court noted that English practice of endorsement of vehicle ownership claim by
finance company is different from in Malaysia. English Law is purely on voluntary
agreement while in Malaysia is statutory provision. Different in law and practice in
Malaysia as according to Section 3 (1) Civil Law Act 1956 constitute a distinctive local
circumstances of local inhabitant of West Malaysia that English cases should not be
followed.