2.  Article 160 FC
 “law” includes written law, the common law
in so far as it is in operation in the Federation
or any part thereof, and any custom or usage
having the force of law in the Federation or
any part thereof;

3.  Section 3 InterpretationActs 948 and 1967:
 “common law” means the common law of
England

4.  Straits Settlements:
 Royal Charter of Justice 1807 – Penang
 Royal Charter of Justice 1826 – Malacca &
Singapore
 Malay States:
 Civil Law Enactment 1937 – FMS
 Civil Law (Extension) Ordinance 1951 – UFMS

5.  Sabah:
 Civil Law Ordinance 1878
 Civil Law Ordinance 1938
 Application of Laws Ordinance 1951
 Sarawak:
 Order L-4 or Law of Sarawak Ordinance 1928
 Application of Laws Ordinance 1949

6.  Civil LawAct 1956 (Federation of Malaya
including Penang and Malacca)
 Was revised in 1972 to include Sabah and
Sarawak
 -- Civil Law Act 1956 (Revised 1972)

7.  Date of coming into force:
 7 April 1956 for West Malaysia
 4 April 1972 for East Malaysia

8.  Sia Cheng Soon vTengku IsmailTengku Ibrahim
[2008] 5 CLJ 201
 CLA 1956 concerns civil law, not criminal law.
The title of the Act says so.The preamble also
provides:
"An Act relating to the civil law to be
administered in Malaysia."

10.  Application of U.K. common law, rules of equity and certain statutes
 3. (1) 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 Peninsular Malaysia or any part thereof, apply the common law of England
and the rules of equity as administered in England on the 7 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 1
December 1951;
 (c) in Sarawak, 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,
 Provided always that the said common law, rules of equity and statutes of
general application shall be applied so far only as the circumstances of the States
of Malaysia and their respective inhabitants permit and subject to such
qualifications as local circumstances render necessary.

11.  (1) 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—

12.  Section 2 CLA 1956
 “Court” means any court in Malaysia of
competent jurisdiction, and includes any
Judge thereof whether sitting in court or in
chambers;
 Section 3 InterpretationAct 1948 and 1967
 “court” means a court of competent
jurisdiction

13.  (a) in Peninsular Malaysia or any part
thereof, apply the common law of England
and the rules of equity as administered in
England on the 7 April 1956;

14.  (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 1
December 1951;

15.  (c) in Sarawak, 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,

16. PENINSULAR MALAYSIA
 Common law of England
 Rules of equity
 Cut-off date:
 7 April 1956
SABAH & SARAWAK
 Common law of England
 Rules of equity
 Together with statutes of
general application
 Cut-off date:
 1 December 1951 (Sabah)
 12 December 1949
(Sarawak)

17.  Law developed by judges through decisions
of court. (case law)
 Enforced through the doctrine of binding
precedent.

18.  There were two parallel court systems in
England:
 ‘courts of law’ which enforced legal justice,
and
 ‘courts of equity’
 Equity means 'fairness' and is the body of
rules developed first by the Lord Chancellor
and by the old Court of Chancery

19.  A set of legal principles, in jurisdictions
following the English common law tradition,
that supplement strict rules of law where
their application would operate harshly.

20.  “the reasons for deciding that a statute is not of
general application are that it is of a local
personal or temporary nature, or that it is
limited in scope (e.g. a fiscal or revenue
measure) or that it deals with specific institution
(e.g. electricity board or an art gallery) or that it
is concerned with a limited class of persons (like
the Ecclesiastical Commissioners, or those who
work in the coal mining industry)”.
 Per Roberts CJ in Bong Sau Fei v Chong Chu Lien
[1965-86] 2 BLR 124

23.  2 views (read Ahmad Ibrahim ,The Malaysian
Legal System).
 What about the court’s view on this
matter?
 Ong Guan Hua v Chong
 Court held that the English Gaming Act of
1710 and 1835 was not applicable inWest
Malaysia.

24.  Similarly, in these cases, it was held that
English statutes were not applicable inWest
Malaysia:
 Permodalan Plantation v Rachuta [1985] 1
MLJ 157
 Mokhtar v Arumugam [1959] 1 MLJ 232
 Pushpah v Malaysian Cooperative Insurance
Society [1995] 2 MLJ 657

25.  Court:
 “It is quite clear that in England the power of
the Court to award damages in the nature of
interest for delay in returning specific goods
is a remedy conferred by statute and not one
available at Common Law.This relief, being a
creature of English statute, is not available
here: see section 3(1) of the Civil Law
Ordinance, 1956.”

26.  Provided always that the said common law,
rules of equity and statutes of general
application shall be applied so far only as the
circumstances of the States of Malaysia and
their respective inhabitants permit and
subject to such qualifications as local
circumstances render necessary.

27.  Royal Charter of Justice 1807
 “so far as local circumstances will admit”
 “so far as local conditions and inhabitants will
admit”
 Proviso to Section 2 CLE 1937 (FMS)
 “so far only as the circumstances of the
Federated Malay States and its inhabitants
permit and subject to such qualifications as
local circumstances render necessary”

28.  “Under the Ordinance or Act, there is no
question of Malaysian law deigning to English
law. A court shall administer the common law
of England and the rules of equity so far only
as Malaysian circumstances and Malaysians
permit”
 Per JeffreyTan J

30.  (1) 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—

31.  Once there is written law in Malaysia on that
matter, English common law and the rules of
equity are excluded from our law.

33.  Only English common law and rules of equity
administered in England on 7 April 1956 can
be applied to fill in the lacuna in the law.
 Only English common law and rules of equity
together with statutes of general application
administered in England on 1 December
1951 (Sabah) or 12 December 1949
(Sarawak) can be applied to fill in the lacuna
in the law.

34.  Court: when referring to English common
law, the courts are restricted to adopt English
law as administered at its effective date, and
any subsequent development in England is
not binding.

35.  Nuisance is a cause of action under English
law. According to S 3 CLA, the common law
that has to be applied is the common law in
England before 7 April 1956.

36.  A common law presumption that has been
displaced by an English statute formed no
part of the common law of England.Thus has
no application in Malaysia.

37.  Therefore, if the common law is no longer
valid in England, then it becomes inapplicable
in Malaysia as well.

38.  The Federal Court ordered the trial court to
itemise damages for the purpose of
calculating interest on damages following the
English case of Lim Poh Choo v Camden &
Islington Area Health Auhtority [1980] AC 174.

39.  It was argued that section 3 CLA prevents the
Malaysian courts from applying English cases
decided after 7 April 1956 and as such, the
practice of Malaysian courts in itemising
damages for the purpose of calculating
interest on damages by following English
cases after 7 April 1956 is unlawful.

40.  This argument was rejected by the Privy
Council.
 There was no written law in Malaysia which
forbids the courts to adopt the itemisation
process in assessing damages.
 “The courts of Malaysia are free to take their
own course.”
 Modern English authorities may be
persuasive but are not binding.

41.  In other words:
 In the absence of written law prohibiting the
application of developments in English law
after 7 April 1956, a Malaysian court is
entitled to apply cases decided in England
after that date.

43.  Section 3 of the Civil LawAct 1956 only
requires any Court inWest Malaysia to apply
the common law and the rules of equity as
administered in England on 7 April 1956.That
does not mean that the common law and
rules of equity as applied in this country must
remain static and do not develop.

44.  Court applied the proviso to S 3.
Abdul Hamid J:
“I think I am entitled to go on and consider whether local
circumstances would require some "modification" to extend
the concept of the duty of care to an omission as in this case.
As I have said, I think the proviso to s. 3 of the Civil Law Act
1956 allows me to do so if local circumstances so require.
Indeed the same thing was done by Peh J in Batu Sinar 's
case. In fact it can be said that the Supreme Court in
Commonwealth of Australia's case did just that when it
applied the post 1956 decisions of the English Courts, even
though the judgment did not say so.”

45.  Court applied the proviso to S 3.
 “The practice in West Malaysia would constitute
such a distinctive local circumstance of the local
inhabitants of West Malaysia that the decision of
Moorgate and other cases directly and indirectly
on the point of failure to have an ownership
claim registered should not be followed. 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.”

46. The Nepline case

47.  Abdul Hamid J:
“In applying s.3 of the Civil Law Act 1956, the approach the Court
should take is first to determine whether there is any written law in
force in Malaysia.
If there is none, then the Court should determine what is the
common law of, and the rules of equity as administered in England
on 7 April 1956.
Having done that the Court should consider whether "local
circumstances" and "local inhabitants" permit its application as such.
If it is "permissible" the Court should apply it. If not, the Court is free
to reject it totally or adopt any part which is "permissible“…

48. …Where the Court 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 so doing, the Court is at liberty to look at any source
of law, local or otherwise, be it England after 7 April
1956, principles of common law in other countries,
Islamic law of common application or common customs
of the people of Malaysia. Under the provision of s.3 of
the Civil Law Act 1956, that is the way the Malaysian
common law should develop.”

49. 1) See whether there is any written law in force in Malaysia.
 If there is – apply it!
2) If there is none, determine the English common law or
rules of equity on the cut-off date (be it 1956, 1951 or
1949)
3) Consider the local circumstances.
 If local circumstances permit – apply it!
 If not – reject it totally, or adopt the part which is permissible.
4) If the court rejects it totally or in part, the court is free to
formulate Malaysia’s own common law.

50.  In formulating Malaysia’s own common law,
the court is free to look at any source of law,
local or non-local.
 The common law of England after the cut-off
date, statutes of general application after
1951/1949, principles of common law in other
countries, common custom of people of
Malaysia etc.