English Law Case Study

QUESTION 1

TO WHAT EXTEND CAN ENGLISH COMMON LAW AND ISLAMIC LAW BE APPLIED IN MALAYSIA? DISCUSS AND COMMENT.

English Common Law

Sources of Malaysian law can be classified into two – written law and unwritten law. Written laws are the most important source of law which have been enacted in the Federal Constitution, Acts of Parliament and Enactments, and Subsidiary Legislation. Whereby unwritten laws are laws that are not enacted by the legislature and do not contain in any constitution. Unwritten laws can be found only in judicial decisions of the superior courts. The law of Malaysia is mainly based on common law legal system which means that English law forms part in the laws of Malaysia. In virtue Article 160 of Federal Constitution includes ‘the common law insofar as it is in operation in the federation or any part thereof’ which concern the extent to which English law is applicable in Malaysia. English law is to be applied in accordance with the Civil Law Act 1956 (Revised 1972) only to fill in the lacunae of local statutes on the particular subject matter. In situations where there is no law governing a particular circumstance, Malaysian case

In context of civil law, Section 3(1) of the Civil Law Act 1956 allows the application of English common law, rules of equity and statutes in Malaysian cases where no specific laws have been made.

In Section 3(1), it provides the general application of English law. It states that:

(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 West Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on 7th 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 1st day of December 1951;