Reception of equity in malaysia (Topic 2)

25/02/15 Dr. Zuraidah Haji Ali 1

RECEPTION OF EQUITY IN MALAYSIA


Learning Objectives

To revise the reception of English Law in Malaysia.

To understand how Equity is applied in Malaysia

What is the status of Equity, is it binding or merely persuasive authority?


Legal History

Malaysia was formed in 1963 after its independence in 1957.

Under a few Western dominations

1) Portuguese = 1511

2) Dutch = 1641

3) British = 1795


REIGN OF BRITISHEMPIRE

STRAITSSETTLEMENTS

FEDERATED MALAYSTATES

UNFEDERATEDMALAY STATES


Straits Settlements

Comprised of Penang, Malacca and Singapore. First Charter of Justice (COJ) 1807 - applied only in Penang.- made provisions for the government of the island

and the administration of justice- Established Ecclesiastical Court – jurisdiction was

subject to ‘so far as several religions, manners and customs of the inhabitants will admit.


Second Charter of Justice 1826- Island of Singapore and town and fort of

Malacca were annexed to Prince of Wales Island (Penang)

- It conferred the same jurisdiction on the Court of Judicature as the former Charter had done.

Third Charter of Justice 1855- Nothing was altered as far as the

fundamental condition was concerned.


Federated Malay States These state were not under British territory. British’s influence came through treaties with

the Rules of these State. The Ruler merely acted on the advise of the

British administration = RESIDENTIAL SYSTEM.

Two ways ;

i) advice of British administrator = enacted several laws such as Penal Code, Evidence Ord and Contract Ord.


ii) Decision of the judges in the court – principles of law of tort and equity were introduced into the Malay states.

Later THE CIVIL LAW ENACTMENT 1937 were enacted.

CLE was extended to Unfederated Malays States in 1951 under the CIVIL LAW ORD 1951.

Replaced by the CIVIL LAW ORD (1956) – applicable to Penang and Malacca.

With formation of M’sia in 1963 the ordinance was changed to CIVIL LAW ACT (1956) which include both Sabah and Sarawak.


Court of Judicature COJ introduced ECL & equity in the SS. The Charters

however did not apply to MS

In the FMS-Residency sys introduced. On the advice of the British Residents, English-styled cts were established and English judges were appointed. The judges relied/applied CL & equity.

This was confirmed by the Civil Law Enactment 1937-Sec 2(i)The application was extended to UFMS in 1951 and to Penang & M’ca in 1956

1972-the 1956 Act was revised to extend its application to Sabah & Sarawak


Section 3 of the Civil Law Act

Save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia, the Court shall-

(a) In West Malaysia or any part thereof, apply the common law of England and rules of equity as administered in England on 7 th day of April 1956.


b) In Sabah, 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 the 1st day of December 1951;

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


Consequences

April 7th 1956 is significant because only English Common law and equity as administered in England on that date is applicable in Peninsular Malaysia.

After that stated date-Common law and the rules of equity do not become law in Malaysia.


Civil Law Act 1956 (Revised 1972)

Came into force on April 1st 1972 Repealed – Civil Law Ordinance 1956 - Sabah Application of Laws

Ordinance 1951 - Sarawak Application of Laws Ordinance 1949


WHAT IS THE DIFFERENCE AS REGARDS TO THE APPLICATION OF

EL IN PM &SABAH &S’WAK?PM- common law and rules of

equity

Sabah & Sarawak- common law, rules of equity & SOGA


Application of statutes both in PM and Sabah and S’wak

a) In favour of importation- Rules of ECL and equity includes

legislatiom that need to be enforced by Courts

- Administration of CL and equity would be inconvenient without AOP

- The words statutes was found under s2(1) of the old CLE 1937.


b) Not in favour of importation.- Difference in wording between para a, b

and c.- CL is a body of principles built up from

decision of the Court and in fact in contra distinction to statute of law.

- Section 5(1) of CLA vividly showed the difference


Mokhtar v Arumugam [1959] MLJ 232

Smith J of COA; It is quite clear that in England the powers

of the court to award damages in the nature of the interest for delay in returning goods is a remedy conferred by statute and not one available at common aw. This relief, being a creature of English statute, in not available here.”


Limitation

Proviso to s3 of CLA- divided to two

a) Applied in the absence of local statutes on particular subject – a means to fill local gap.

b) Application only covered the part of English law that is suited to local circumstances.


Chou Choon Neoh v Spottiswoode (1869) 1 Ky 216 .Maxwell J

On the application of English Superstitious Uses Act 1547 and Mortmain Acts 1531

“In this colony, so much of the law of England as was in existence when it was imported here and as is general (and not merely local) policy and adapted to the condition and wants of the inhabitants, is the law of the land and further,


that the law is subject in its applications to various alien races established here, to such modifications as are necessary to prevent it from operating unjustly and oppressively on them. Thus, in questions of marriage and divorce, it would be impossible to apply to our Mohammedans, Hindoos and Buddhists, without the most absurd and intolerable consequences and it is therefore held inapplicable to them.


What happens after that date?

lacuna in the Malaysian law/ absence of local statutory provisions

- as long as it is not against the Malaysian custom-

attempt can be made to apply the English Common law and the rules of Equity

They are not binding and are merely persuasive.


Lee Kee Chong v. Empat Nombor Ekor Sdn. Bhd. [1976] 2 MLJ 93,

95 Lord Russell of Killowen

…It appears that the Civil Law Ordinance 1956, section 3 adopted English laws as administered at its effective date, so that any subsequent march in English authority is not embodied.


Jamil bin Harun v.Yang Kamsiah [1984] 1 MLJ 217, 219

Lord Scarman …Modern English authorities may be persuasive,

but are not binding. In determining whether to accept their guidance, the courts will have regard to the circumstances of the states of Malaysia and will be careful to apply them only to the extent that the written law permits and no further than in their view it is just to do so.


Nepline Sdn Bhd v Jones Lang Wootton [1995] 1 CLJ 865 at

869 Abd Hamid J; S3 of CLA 1956 is the law of Malaysia as it

stands today. Courts in Malaysia have no choice but to

keep on applying it. “In my view the approach that the Court

should take is first to determine whether there is any written law in force in Malaysia.


If there is, the Court need not look anywhere else. If there is none, then the Court should determine what is the common law of the rules of equity as administered in England on 7 April 1956. Having done that the Court should consider whether “local circumstances” and local inhabitant” permits its application, as such. If it is ‘permissible”, the court shall apply it. If not, I am of the view that, the Court is free to reject it totally or adopt any part which is “permissible”,with or without qualification.


Where the Courts rejects it totally or in part, then there being no written law in force in Malaysia, the Court is free to formulate Malaysia’s own common law. In doing so, the Court is at the liberty to look at any sources of law, local or otherwise, be it common law of or rules of equity as administered after 7 April 1956, principles of common law in other countries, Islamic law of common application or common customs of the people in Malaysia. Under the provision of s3 of CLA 1956, I think, that is the way the Malaysian common law should develop.


Almarhum Prof Ahmad Ibrahim

There is no need to rely on English law to fill the lacuna as the law is developed in M’sia through legislations and judicial decisions.

Need to consider other methods eg.a) Muslim law of other land : eg Egyptian Civil

Codeb) Rules of customsc) Principles Islamic lawd) Principe of natural law.


What are the impacts of the application of sec 3 of CLA?

In family law Commercial law Land law

Reception of equity in malaysia (Topic 2)

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