Keith Mack
Malaysia's legal system is a mix of Common Law, Islamic Law, and Customary Law, with roots in the country's colonisation by Britain from the early 19th century to the 1960s. The application of English law in Malaysia is specified in statutes, with the Civil Law Act 1956 allowing for the use of English common law, rules of equity, and statutes in Malaysian civil cases where no specific laws have been enacted. While the Malaysian Bar Council considers common law to be part of the Malaysian legal system, there have been calls to replace it with Islamic law.
| Characteristics | Values |
|---|---|
| Basis of Malaysian law | Common law legal system |
| When was English common law introduced | Early 19th century to the 1960s |
| Application of English law | In cases where no specific Malaysian law can be applied |
| English law in Malaysian civil cases | Allowed per Sections 3, 5, and 6 of the Civil Law Act |
| English law in Malaysian criminal cases | Not applied |
| English land law in Malaysia | Not applied |
| Dual justice system | Secular laws (criminal and civil) and sharia laws |
| Other legal influences | Australian, Indian, and Singaporean cases |
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What You'll Learn
- Malaysia's legal system is a mix of common law, Islamic law and customary law
- The application of English law in Malaysia is specified in statutes
- The Federal Constitution defines the law, which includes common law
- The Civil Law Act 1956 allows for the application of English common law in Malaysian civil cases
- The Malaysian Bar Council responded to the proposal to replace English common law with Islamic law
Malaysia's legal system is a mix of common law, Islamic law and customary law
Malaysia's legal system is a mix of common law, Islamic law, and customary law. The country's laws can be divided into two types: written law and unwritten law. Written laws are laws that have been enacted in the constitution or legislation, while unwritten laws are those that are not contained in any statutes and are found in case decisions, also known as common law or case law.
The law of Malaysia is primarily based on the common law legal system, a direct result of the colonisation of Malaya, Sarawak, and North Borneo by Britain from the early 19th century to the 1960s. English common law is applied in Malaysia through the common law, as stated in Article 160 of the Federal Constitution, which rules that common law is applicable "in so far as it is in operation in the Federation or any part thereof". Section 3 of the Civil Law Act 1956 further specifies that the common law of England and the rules of equity may be applied, but only when no specific Malaysian law is applicable.
In situations where there is no law governing a particular circumstance, Malaysian case law may be applied. If there is no Malaysian case law, English case law can be applied. There are also instances where Australian, Indian, and Singaporean cases are used as persuasive authorities. The application of English law or common law is specified in statutes, such as Section 5 of the Criminal Procedure Code, which states that English law shall be applied when no specific legislation has been enacted.
Sharia law, or Islamic law, also plays a role in Malaysia's legal system, although it applies only to Muslims. The Syariah courts have jurisdiction in personal law matters such as marriage, inheritance, and apostasy. In some states, there are Sharia criminal laws, such as the Kelantan Syariah Criminal Code Enactment 1993, which can impose fines and imprisonment for a limited amount or duration.
Customary law, or adat, refers to customary practices and traditions that were part of Malay law before colonisation.
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The application of English law in Malaysia is specified in statutes
Malaysia's legal system is a mix of Common Law, Islamic Law, and Customary Law, catering to the diverse racial and religious needs of its citizens. The law of Malaysia is primarily based on the common law legal system, a direct result of British colonisation of Malaya, Sarawak, and North Borneo from the early 19th century to the 1960s.
Article 160 of the Federal Constitution states that common law is applicable 'in so far as it is in operation in the Federation or any part thereof'. Section 3 of the Civil Law Act 1956 further specifies that the common Law of England and the rules of equity may be applied. However, it is essential to note that English law is only applied when no specific Malaysian law is applicable. Therefore, while English law can be applied in Malaysia, it does not supersede Malaysian law but acts as a supplement.
The Sarawak Application of Laws Ordinance 1949 applied English common law, rules of equity, and English statutes of general application to Sarawak. In Sabah, a similar provision existed in the Sabah Application of Laws Ordinance 1951. However, it is important to note that no part of English law relating to immovable property applies in Malaysia.
The Criminal Procedure Code, Section 5, states that English law shall be applied in cases where no specific legislation has been enacted. In civil law, Sections 3 and 5 of the Civil Law Act allow for the application of English common law, equity rules, and statutes in Malaysian civil cases where no specific laws have been enacted.
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The Federal Constitution defines the law, which includes common law
Malaysia's legal system is a mix of Common Law, Islamic Law, and Customary Law, accommodating the diverse racial and religious needs of its population. The law of Malaysia is primarily based on the common-law legal system, which means that English law is a part of Malaysian law.
Article 160 of the Federal Constitution defines the common law as being applicable "in so far as it in operation in the Federation or any part thereof". This means that English law is applicable in Malaysia, but it does not supersede Malaysian law and is only applied when no specific Malaysian law can be applied. The Federal Constitution is the supreme law of Malaysia, providing the legal framework for laws, legislation, courts, and administrative aspects of the law. It defines the government and monarch, their powers, and the rights of citizens.
The Civil Law Act 1956 (Act 67) (Revised 1972) further specifies the meaning of English law as "the common law of England and the rules of equity", and in prescribed circumstances, English statutes. This Act incorporates the three earlier separate statutes authorising the application of English law when Malaysia was formed in 1963: the Civil Law Ordinance 1956 (CLO 1956) in Peninsular Malaysia, the Application of Laws Ordinance 1951 in Sabah, and the Application of Laws Ordinance 1949 in Sarawak.
In situations where there is no law governing a particular circumstance, Malaysian case law may apply. If there is no Malaysian case law, English case law can be applied. There are also instances where Australian, Indian, and Singaporean cases are used as persuasive authorities. The application of English law is specified in statutes, such as Section 5 of the Criminal Procedure Code, and Sections 3 and 5 of the Civil Law Act.
The debate on whether Malaysia should maintain strong links with English law is ongoing. While some argue for the implementation of Islamic laws, others highlight the contribution of English law to the development of Malaysia's plural legal system.
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The Civil Law Act 1956 allows for the application of English common law in Malaysian civil cases
Malaysia's legal system is primarily based on the common law legal system, a direct result of the British colonisation of Malaya, Sarawak, and North Borneo from the early 19th century to the 1960s. The Civil Law Act 1956 (Act 67) (Revised 1972) is one of the statutes that authorise the application of English law in Malaysia, including civil cases.
The Civil Law Act 1956, or the Act as a whole, permits the reception of English law in Malaysia. Section 3 of the Act defines English law as "the common law of England and the rules of equity" and, in prescribed circumstances, English statutes. This section also specifies that the common law of England and the rules of equity may be applied in Malaysian civil cases, but only when no specific Malaysian law can be applied. This means that English law does not supersede Malaysian law but rather supplements it.
The application of English law in Malaysia is not without controversy. Some have argued for the abolition of Section 3 of the Civil Law Act 1956, claiming that it stifles the development of Malaysian common law. However, others argue that the existing framework of the Act allows, if not promotes, the development of Malaysian common law. They suggest that instead of abolishing Section 3, it should be amended to enable a smoother reception of English law and more effective development of Malaysian common law.
The choice to follow English case law is left to the Malaysian judiciary. While English authorities may be persuasive, they are not binding. This means that English decisions made after 1956, the specified date in Section 3(1), are not binding but can still be persuasive. Several cases illustrate this, including Leong Bee v Ling Nam Rubber Works [1970] 2 MLJ 45 and Lembaga Kemajuan Tanah Persekutuan v Tenaga Nasional [1997] 2 MLJ 783.
In conclusion, the Civil Law Act 1956 allows for the application of English common law in Malaysian civil cases, but it is not the only statute that does so, and the application of English law is subject to certain conditions and qualifications. The reception of English law in Malaysia has contributed to the development of the plural Malaysian legal system, and the debate on the necessity of maintaining strong links with English law is likely to continue.
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The Malaysian Bar Council responded to the proposal to replace English common law with Islamic law
Malaysia's legal system is a mix of Common Law, Islamic Law, and Customary Law, which aims to balance the racial and religious needs of its diverse population. English Law is applied in Malaysia through Common Law.
In 2007, the Chief Justice of Malaysia, Ahmad Fairuz Abdul Halim, proposed to replace English Common Law with Islamic Law, or Sharia Law. This proposal was made 50 years after Malaysia gained independence from Britain. In response, the Malaysian Bar Council asserted that Common Law is an integral part of the Malaysian legal system and that there is no basis to replace it.
The Malaysian legal system already incorporates a dual justice system, comprising secular laws (criminal and civil) and Sharia Laws. Sharia Law, or Islamic Law, is a state law matter, except in the Federal Territories of Malaysia. It is an integral but carefully circumscribed part of the legal system, applying only to Muslims in matters of family law and personal faith. The Syariah Courts, which implement Sharia Law, have limited jurisdiction, with a cap on the fines and imprisonment they can impose.
English Law is applied in Malaysia in situations where there is no law governing a particular circumstance, and no Malaysian case law exists. It is specified in statutes, such as Section 5 of the Criminal Procedure Code, which states that English Law shall be applied in cases where no specific legislation has been enacted. Similarly, in civil law, Sections 3 and 5 of the Civil Law Act allow for the application of English Common Law, equity rules, and statutes in Malaysian civil cases where no specific laws have been enacted.
Malaysia's legal system is also influenced by other jurisdictions, including Australia and India. For example, the Criminal Procedure Code in Malaysia is based on the Indian Criminal Code, and the Contracts Act follows the Indian model. Additionally, Malaysian land law is based on the Australian Torrens system.
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Frequently asked questions
English common law is applied in Malaysia through the common law legal system, which is based on the colonisation of Malaya, Sarawak, and North Borneo by Britain between the early 19th century and the 1960s.
Malaysia's legal system is a mix of Common Law, Islamic Law, and Customary Law. English common law is applied in Malaysia when there is no Malaysian case law to govern a particular circumstance.
In the case of Lee Kee Choong v Empat Nombor Ekor, the Privy Council ruled that English law after 1956 need not be considered because under section 3(1) CLO 1956, 'any subsequent march in English authority is not embodied'. In Leong Bee v Ling Nam Rubber Works [1970], the Privy Council held that a presumption arising from an act or default for which a man was answerable had no application in Malaysia as it was no longer part of the common law of England on 7 April 1956.
Yes, there is an ongoing debate about whether Malaysia needs to sustain strong links with English law. In 2007, the Chief Justice of Malaysia proposed to replace the current common law application in Malaysia with Islamic law or sharia law. However, the Malaysian Bar Council responded by stating that common law is part of the Malaysian legal system and there is no basis to replace it.
