THE APPLICATION OF ENGLISH LAW IN MALAYSIA
HISTORICAL BACKGROUND OF ENGLISH LAW
In Article 160 of the federal court mention that the meaning of the laws which involve ‘ the common law in so far as it is in operation in the federation or any part’ with how far Malaysia relevant for using the English Law. In section 3 of the civil law act 1956 gives the meaning of English law which means-‘ The England common law and equity rules’ and the in the condition, English Statutes.
The old English law (Court of Exchequer, court of common Pleas and Court of King’s Bench) extent the body of English law. But it is different with The old court of Chancery which already non in this world. The English law already use in England before the Norman Conquest in 1066.
The law of Malaysia have two types of law, written law and unwritten law. The written law is the law that enacted in the constitution or legislation. The unwritten law is the law that not contained in any statutes but can be found in the case decisions. This is identified as common law or case law. If in the situation where there is no law can be use, Malaysian case law may can be use. If there are no Malaysia case law, the English law can be use. There are the case in which the case of Australia, India and Singapore can be use as persuasive authorities.
The Application of English law or the common law are mention in statutes in section 5 of criminal Procedure Code, mention that the English law must be use in any case where the specific law of the case does not enacted. Same with the context of civil of law, section 3 and 5 of civil Law Act allows for the application of the English law, equity rules and statutes in Malaysia civil case where no specific laws has been made.
In 2007, Chief Justice of Malaysia, Ahmad Fairuz Abdul Halim questioning about how important to apply the English law even Malaysia already reached the independent in 50 years and he suggested for replace with the Islamic law or Syariah law. However, Malaysia Bar council react with saying that English law is one of the part of Malaysia legal system and it is not basic to replace it.
THE ADVANTAGES OF ENGLISH LAW
The English law expands, clarifies and implements the law. Like the words of parliament is often large and generic, give the general instruction on the law but not how it should work in certain situations. The role of judges is to examine the specific facts for every case, interpret the relevant law and administer the law in line with these findings.
If the cases are never foreseen, English law can respond to it based on situations and facts. It is Impossible for parliament to legislate for every possible problem and every case. Thus, English law can examine and respond to the situation.
English law allows for change in law-making. The pattern can be challenged, can set aside and move to new pattern. The sufficient opportunity provided by law for English law reform.
Speed and efficiency
English law is more fast than the parliamentary law. In changing social value, and community expectation, English law often reacts and respond quickly.
Different with the parliamentary law, in which judges and courts dominated their law making, English law, judges and courts are not dominated in making the law. Because of this, the courts can implements a lot of law that may be a controversial or unpopular.
APPLICATION OF ENGLISH LAW IN MALAYSIA
The application of English law is focus in the statutes. According to section 3 and section 5 of the civil Law Act(1956), because of there are no specific laws have been made, the application of English law, equity rules and statutes in Malaysian civil case are allowed. There are three separate statutes when Malaysia was formed in 1963.Those statutes authorize the application of English law which are the Civil Law Ordinance 1956 (CLO 1956) in Peninsular Malaysia, the application of Laws Ordinance 1951 in Sabah as well as the Application of Laws Ordinance 1949 in Sarawak.
After the formation of Malaysia, the Civil Law Ordinance 1956 was extended to Sabah and Sarawak with the effect from 1 April 1972 by the Civil Law Ordinance (Extension) Order 1971. The extent of the application of English law is prescribed in section 3, section 5 and section 6 of the Civil Law Acts 1956 (Revised 1972)
In section 3(1) provides that in the absence of written law, the courts in Malaysia shall apply the English law and rules of equity existing in England on :PENINSULAR MALAYSIA- 7 APRIL 1956 The Peninsular Malaysia such as Malacca and Penang apply the common law of England and the rules of equity as administered on the 7 April 1956.
SABAH- 1 DECEMBER 1951Sabah apply the common law of England and the rules of equity, together with statutes of general application, as administration or in force in England.
SARAWAK- 12 December 1949Sarawak apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on 12 December 1949. Subject however to sub section 3(ii)
Jamil bin Harun v Yang Kamsiah ; anor (1984) 1 MLJ 217- 13 February 1984
Whether the courts in Malaysia may apply English law in this case.
Yang Kamsiah has been run down by a bus which made her suffer from a very serious brain injury and turn her into Special kids with permanent and physical disabilities. It was under the laws of torts in regards of negligence. A Global sum of $75,000 was ordered by a Trial Judge as general damages with the usual interest of 6% and the federal court rejected the trial judge’s view. Federal Courts held that it was necessary for the court for a personal injury case where to itemize the its awards, there is an element, of future damage.
The Courts in Malaysia can decide whether want to follow the English law in regards to the circumstance that the written law permits and modern English authorities may be persuasive but are not binding. The written law in Malaysia does not forbid the itemization of damages in personal injury cases. Federal courts was fully entitled to accept the principles of assessment laid down in the Lim Poh Choo’s case. Thus, the appeal was dismissed with costs.
Shaik Sahied Bin Abdullah Bajerai v. Sockalingan Chettiar (1933) 2 MLJ 81
IssueWhether the English Money Lenders Act can be applied as a defence in this case.
The plaintiff sued for money allegedly due on a promissory note and a cheque. In defence, the defendant relied upon the absence of a written memorandum as required under the English Money Lenders Acts 1900-1927. In dispute was whether those statutes could be pleaded in Straits Settlements. Lord Atkins in dismissing the appeal held that the statutes were not part of the mercantile law because they contain saving clauses excluding from their scope the borrowing of money in the course of ordinary commercial transactions. As the statutes were not part of the mercantile law, an issue raised under any of their provisions was not an issue concerning mercantile law. Consequently the statutes did not apply in straits settlements.
United Malayan Banking Corporation Bhd ; Anor v Pemungut Hasil Tanah, Kota Tinggi (1948) 2 MLJ 87
Whether any English rules of equity can be applied in this case
In this December 1966 under section 76 of national Land Code, State Authority of Johor alienated to the second appellant land in Kota Tinggi for a term of 99 years in consideration of a stipulated annual rent and other conditions. The second appellants were laid out for the sum of money regarding the development of the land for the purpose of sugar plantation and also granted a number of charges over the land in favor of the 1st appellant for the purpose of securing the repayment of loans which in November 1977 amounted to $5,334,163.60 including interest. But, in 1977 the 2nd appellant only paid $124,000 for the rent and $31,020 for education rated which leads to falling in arrear as they failed to pay the balance amount before 1 January 1977. The collector of land revenue for the district cause a notice of demand to be served on the 2nd appellants. Then a copy was also served on 1st appellant charges to give them opportunity of paying the rent themselves if they choose. The notice required payment of the rent together with penalties within 3 months. The collector of land revenue made an order declaring the land forfeit to State Authority and it was published in the gazette(newspaper) as both of the 1st appellants and 2nd appellants failed to pay the rent or penalties within that period. The appellants then instituted proceedings by motion under section 418 of the Land Code and appealed to the High Court.
High Court gave judgment in favor of the appellants granting relief against forfeiture. The National Land Code is a complete and comprehensive code of law governing the nature of land in Malaysia and the incidents of it as well as other important matters affecting land and there is no room for the importation of any rules of English law in that field except in so far as the Code itself may expressly provide for this. Even the case had already met with all the requirement of application of English law under section 3 of CLA still could not be implied as it is already stated under section 6 of CLA regarding the immovable property, we cannot refer to English Law. Hence appeal was dismissed.
AHMAD SHAHIR SEBAWI v VISTA SUMMEROSE SDN BHD2018 MELRU 694
Issue:Whether the Plaintiff can take action against Defendant.
The Plaintiff has been employed as an Assistant Account on probation on 1 September 2015 for a period of three months from 1 September 2015 to 1 December 2015 and paid with the salary of RM1,700.00 per month. Because Plaintiff’s work performance is said to be unsatisfactory, the Defendant has decided to extend the trial period for three months until March 2, 2016. During the extended trial period, the Defendant found that the Plaintiff still demonstrated incompetence, inefficiency and ineptitude that allegedly arose for certain reasons which amounted to misconduct. The Defendant claims that the Plaintiff has been given verbal warnings and a memo dated 23 December 2015.
Following the misconduct as well as with the reasonable warnings and instructions given to the Plaintiff, the Defendant has no other choice but to decide not to extend the proceedings of the Plaintiff’s extension which should expire on 2 March 2016 at where he was given a Notice of Retrenchment dated 31 December 2015. The Plaintiff is not satisfied with the actions of the Defendant to terminate his work on the grounds, among other things, the Defendant fails to provide a valid reason and evidence for the intended negligence.
In addition, the Plaintiff claimed that the Defendant did not take any initial steps, among others, a show cause letter which was not submitted to him to answer, no internal inquiry had been made for him to answer the charge. In addition, the Plaintiff also claimed that the Defendant deliberately took action to dismiss it to allow the Defendant’s relatives to serve.
In the case of the Court of Appeal, the court has the opportunity to refer to the judgment in the case of Felda Bhd Multiple Workers Cooperative v. Zainal Arifin bin Mohd Noor 1994 where the “probationer” perspective has been interpreted appropriately as follows as the rights of a probationer, the court more prefer to apply the principles of English Law. It compulsory, firstly, for determine what the meaning of the words “probation”. In Dictionary, it say the probation is test for person’s behavior or character and the originator is the person is on probation or in the situation to provide proof of certain eligibility for place or status.
In conclusion, after evaluating all statements made in full and acting in accordance with equity, conscience and merit of the case, the Court finds that the Defendant has succeeded in proving on the balance of probabilities that the termination of the Plaintiff’s work has been made with just cause or justification. Therefore, Plaintiff’s claim is rejected.
Malaysia legal system have many effect left by British. The existing of English Law are very important to regulate this various religious in this society in Malaysia. The systems and laws that Malaysia have now are very important for what have suggested is not complete to replace the laws in Malaysia. The courts, the judges and the judicial method to a large extent is still intact. What is suggested is more effort from the judges and helped by the consels and the academic for developing the judges made law in the Malaysian mould.
This matter already discussed over and over again and does not have the result until today. This is very important for developing the English law in Malaysia and add some suggestion to achieve the objective within the development of the English laws in Malaysia. There will be convergence to the English law and not for domination by each other.