NAME : SAIFUL RAMADHAN BIN HASSAN

ID : 2021105583

CLASS : AM1103D

QUESTION : English law plays an important part in our legal system. Explain to what extent English
law is applicable to our law.

Malaysian law is primarily based on the common law legal system. That is, English law is part
of Malaysian law. Article 160 of the Federal Constitution provides definitions of laws, including
"common law in force in or part of the Commonwealth", which relates to the scope of English law in
Malaysia. Section 3 of the Civil Code Act of 1956 (Act 67) (revised 1972) shows the meaning of
English law. This means "British common law and the rules of fairness" and, in certain circumstances,
British law. Common law is a set of rules developed by the ancient Common Law Courts (Exchequer
Court, Common Pleas Court, King's Bench Court) and, unlike the ancient Chancery Court, is now
extinct in the world. Prior to the Norman Conquest in 1066, common law was applied in England and
was basically based on common practices throughout England, rather than local practices. Common
law is an unenacted or unenacted law in the United Kingdom and is based solely on court decisions.

Common law and rules of equity as well as in Sabah and Sarawak, English statues of general
application apply under section 3(1) subject to the following qualifications which are absence of local
legislation, cut off dates and `local circumstances`. First, under the absence of local legislation, it is
contained in the opening proviso. The same qualification exists in section 3(1) CLO 1956 as well as
section 2 Civil Law Enactment 1937 –the antecedents of section 3(1) CLA 1956. The qualification is
applied only in the absence of local status on the subject. The statutory recognition of judicial
practice of resorting over English law to fill lacunae (gaps) in the local law system. As Terrell Ag. C.J.
said in Yong Joo Lin v Fung Poi Fong: `Principles of English law have for many years been accepted in
the Federated Malay States where no other provision has been made by statute. Section 2(1) of Civil
Law Enactment therefore merely gave statutory recognition to a practice which the courts had
previously followed. (Emphasis added.)45`

The qualification is illustrated in Attorney General, Malaysia v Manjeet Singh Dhillon [1991] 1
MLJ 167. The Supreme Court held that in the absence of any specific local legislation concerning
contempt of court, the common law of contempt as stated in R v Gray [1900] 2 QB 36 should be
applied under section 3 CLA 1956. The decision was followed by the Court of Appeal in Murray
Hiebert v Chandra Sri Ram [1999] 4 AMR 4005,4024. The second qualifications for application of
English law are cut off dates as 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 were 7th
April 1956 for West Malaysia, 1st December 1951 for Sabah and 12th December 1949 for Sarawak.

This decision not only upheld the previous legal practices of Lee Kee Chun vs. Empat
Nombor Ekor, but also left the door open to the continued acceptance of British common law
principles and justice in Malaysia. Therefore, the choice is left to the wisdom of Malaysian judiciary.
To develop Malaysia's common law in line with the development of Britain. This raises concerns
about the development of Malaysia's common law, especially in the new situation 48 and in
academia and law.

The third qualification of popular software in English regulation is `nearby occasions` that
English regulation is relevant most effective to the quantity accepted with the aid of using nearby
occasions and inhabitants, and problem to qualifications necessitated with the aid of using nearby
occasions. English regulation can be maximum suitable in its domestic land however doesn`t always
translate nicely into the nearby surroundings which the imposition is absolutely an alien device on a
socially and culturally distinctive from English society. This qualification is contained withinside the
concluding provision to segment 3(1), is generally known as the `nearby occasions` proviso.

That proviso remembers minding the phrases utilized by the judiciary withinside the early
days of British rule withinside the Straits Settlements. For example, Maxwell C.J. in Choa Choon Neoh
v Spottiswoode held that the English Superstitious Uses Act, 1547 and the Mortmain Acts of 1531
and 1735 had been now no longer relevant withinside the Straits Settlements. He said:`In the colony,
a lot of regulation of England as changed into in lifestyles whilst it's miles imported here, and as is of
popular and now no longer simply nearby policy, and tailored to the circumstance and wishes of the
inhabitants, is the regulation of the land; and further, that regulation Is problem, in its software to
the diverse alien races hooked up here, to such adjustments as are vital to save you it from working
unjustly and oppressively on them.’

In the case of Syarikat Batu Sinar v UMBC Finance [1990] 2 CLJ 691, it shown that the effect
of the `local circumstances` proviso in the application of English law that 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 forfeits its claim. The High Court of Malaya noted
that the English practice of endorsement of vehicle ownership claims by finance companies is
different from that in Malaysia (and Brunei). 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) CLA 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 cases on failure to register a vehicle ownership claim should not be followed. Instead, he
followed the decision of the Brunei Supreme Court. A scholarly judge said, "As Australia did, we must
develop our own common law by focusing on the" local situation "or the" local inhabitants. "

Therefore, while English law can be applied in Malaysia, it does not replace Malaysian law,
but merely supplements it. Section 6 of the Civil Code contains clear rules that the UK land law does
not apply in Malaysia regarding ownership, transfer, and inheritance of real estate, but instead the
land law governs land issues. The case of Sia Cheng Soon vs. Tengku Ismail Tengku Ibrahim [2008] 5
CLJ 201 confirms that the British criminal law does not apply in Malaysia because civil law is only
related to civil law part in our legal system.