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TUTORIAL 2: ENGLISH LAW AND THE CIVIL LAW ACT 1956QUESTION 1 ( understand and answer the question, the beginning ofthe question-“is English law part of Malaysian law today?”)Is English law part of Malaysian law today? Critically examine the relevant provisionsof the local statute and cases on the ap...

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TUTORIAL 2: ENGLISH LAW AND THE CIVIL LAW ACT 1956 QUESTION 1 (understand and answer the question, the beginning of

the question-“is English law part of Malaysian law today?”) Is English law part of Malaysian law today? Critically examine the relevant provisions of the local statute and cases on the application of English law in Malaysia. (20 marks)

1. Intro: be brief. can state the definition/composition of English law. 2. Content: a. on the question whether English law is part of Malaysian law (the reasons why English law is a part of Malaysian law/ types of English law- contracts law, torts la b. critically examine the relevant provisions and cases i. relevant provisions (section 3, 5 & 6) ii. Discuss these section 3 - s.3(1) provides " safe in so far .... (a).... (b)... (c)... provided that ...... " iii. Conditions for applications of Section 3 - types of law & a case - absence of local - legislation & a case - cut of dates & a case - suitability with local circumstances & a case iv. section 5(1) & (2) - discuss the differences between these subsections: cut of v. Conditions for applications of Section 5 - date in s.5(1), no cut of dates in s 5(2) which means continuous reception in Sabah, Sarawak, Penang and Melaka. - Discuss the 2 cases on approach to interpretation of the phrase "the law to be administered shall bethe same...." - condition absence of local legislation n suitability with local circumstances which is similar with s.2 vi. s.6 just a statement that English land law is not applicable.

3. Conclusion

a (make it short) Tracing back to the history of the development of the Civil Law Act 1956 which was passed a year before the independence of Malaya, in the circumstances, it was natural for the applicability of the common law of England and the rules of equity to be spelled out clearly by law. And that is precisely what the Civil Law Act 1956 did. In essence, the English Law is still applicable in Malaysia in the sense that the Civil Law Act 1956 provides for general application of English law, specific application of English law, and non-application of English law. Section 3(1) of Civil Law Act 1956 provides the general application of the English Law in Malaysia. It states that the application of English Law is subject to local legislation as it is aimed to fill in the gap that exists in our local legislation. It emphasizes that the Common Law, the Equitable Rules and statutes of general application can only be applied to the extent that the states of Malaysia and their respective inhabitants permit and they are subject to such qualifications as local circumstances render necessary. The question that comes into existence is that whether the English statutes are applicable in West Malaysia. There are two notions that are devised which are from Prof Bartholomew and Joseph Chia. Prof Bartholomew asserts that English statutes are applicable as the expression “common law” simply means the law administered by the Courts of Common Law in whatever nature. Joseph chia, in contrast, propounded that English statutes are not applicable in West Malaysia. Joseph’s argument is latter supported by few local judicial decisions. In the case of Mokhtar v Arumugam, the issue that needs to be tackled by the court is whether damages in the nature of interest for delay in returning specific goods could be awarded in Malaysia. The court ruled that such a remedy, being ‘a creature of English Statutes, is not available here’.

On a further note, the applications of English Law in Malaysia are subject to three conditions which are absence of local legislation, cut-off dates and the suitability with ‘local circumstances’. Moving to the absence of local legislation, Section 3 of Civil Law act 1956 is merely a statutory recognition of judicial practice of restoring to English Law to fill in lacunae (gasps) in our local legislation. It can be depicted in the case of Attorney General, Malaysia v Manjeet Singh Dhillon , the court opted to the common law of contempt as stated in R v Gray as there is an absence of local legislation in regards with the contempt of the court. The second condition is cut-off dates. Only the Common Law and rules of equity and in Sabah and Sarawak, English Statutes of general application being administered in England on specific dates can be applied to fill in the lacunae. According to section 3(1)(a) of Civil Law Act, West Malaysia can apply English law as administered in England on the 7 th April 1956. As stated in Section 3(1)(b), Sabah can apply English law as administered in England on 1 st December 1951 and lastly, by virtue of Section 3(1)(c), Sarawak can apply English Law as administered in England on 12th December 1949. It must be stressed on here that cut-off dates here refer to the English law of general application being administered in England, not the application of English Law in Malaysia. In the case of Lee Kee Choong v Empat Nombor Ekor, the issue here is that whether a valuation on the fair price of shares could be questioned. The judged delivered his judgment by saying that the court need not consider developments of English Law after 1956 because under Section 3(1) Civil Law Ordinance 1956 provides that ‘any subsequent march in English authority is not embodied’. The third condition is suitability with ‘local circumstances’. The English law is only applicable to the extent that is permitted by local circumstances and inhabitants, subject to qualifications necessitated by local circumstances. In the case of Syarikat Batu Sinar v UMBC Finance, the court held by Invoking proviso to Section 3(1) CLA, English practice of endorsement of vehicle ownership claims by finance is different from that in Malaysia (English practice- voluntary arrangement & Malaysian practice-

statutory

provisions)

which

constitutes

circumstances of the local inhabitants of West Malaysia’

‘such

a

distinctive

local

Section 5 is the statutory authority for the reception of English law specifically in commercial matters. There is distinction between Section 5 of Civil Law Act and Section 3(1) of Civil Law Act in terms of terminology used which Section 5 used “the law to be administered” while in contrast, Section 3(1) specifies the relevant source of English law. In exhaustive interpretation, Section of 5 of Civil Law Act introduces the whole English law in regards with mercantile matters, also together with statutes. The words used to describe subsections (1) & (2) of Section 5 are also contrasting which signify the difference in the extent to which English Law is applicable in other Malay states and other 4 states which are Sabah, Sarawak, Penang and Malacca. In essence, Section 5(1) provides that in the absence of any local written legislation, English commercial law shall be applicable in Peninsular Malaysia with the exception of Penang and Malacca, as administered in England on 7 April 1956. Conversely, as seen in Section 5(2), in the states of Penang, Malacca, Sabah and Sarawak, the English commercial law applicable will be the same as that administered in England in the like case at the corresponding period, in the absence of any local written law. In the latter subsection, the cut-off date has been removed in order to streamline the decisions of the Courts in the Straits Settlements with that of the English courts To encapsulate, theoretically, in commercial matters, there is a continuing the reception of English law in these four states (Sabah, Sarawak, Penang and Malacca) while in the other states, the reception is halted at the cut-off dates. However, in practical, the difference is just a mere notional theory as the continuance of reception of English law pertaining to commercial matters still exists. This can be illustrated in the case of Jamil bin Harun v Yang Kamsiah & Anor, Malaysian court, following development in England, exercised jurisdiction to grant Mareva injunctions (enabling the court to freeze the assets of the defendant) and to issue ‘Anton Killer’ orders (requiring a defendant to permit a plaintiff or his representatives to enter the defendant’s premises to inspect or to take away material evidence that the defendant might wish to remove or destroy in order to frustrate the plaintiff’s claim; or to force a defendant to answer certain questions). On a further note, there are two contradicting approaches to the interpretation of Section 5, arising from two Privy Council decisions. In the case of Seng Djit Hin v Nagurdas Purshotumdas, the Privy Council held that “the law to be administered was not mercantile law, but the law” as would be administered in England in like case. To abridge

this, this approach is scrutinising the nature of the case, if the case is pertaining to mercantile law, then any law can be applicable. The second approach can be depicted in the case of Shaik Sahied bin Abdullah Bajerai v Sockalingam Chettiar, the Privy Council held that the statutes were not part of the mercantile law because they contain saving clauses excluding from their scope of the borrowing of money in the course of ordinary of the mercantile law. consequently, the statutes did not apply in the strait settlements. To shorten, the second approach is examining the nature of both the law and case. If the case is mercantile law, then the law must be pertaining to mercantile matters. Finally, the ‘local circumstances’ proviso is present in section 3(1) is absent from Section 5. In practice, however, Section 5 seems to have been interpreted as if the proviso exists. In the case of Sockalingam Chettiar, the trial judge held that the facts did not allow the application of Moneylenders Acts 1900-1927 in Singapore because they were peculiar to England and not in general character, and was unsuitable and impossible of the performance in the East. Conclusively, the application of English Law in Malaysia is still relevant and its applicability in Malaysia is subject to few conditions that need to be adhered.

QUESTION 2 “Their Lordships do not need to comment on the possible development since 1956 in the law of England.... For present purpose, it appears that the Civil Law Ordinance 1956, section 3 adopted English law as administered at its effective date, so that any subsequent march in English authority is not embodied.” - Per Lord Russell of Killowen in Lee Kee Chong v Empat Nombor Ekor (N.S) Sdn. Bhd. [1076] 2 MLJ 93. With reference to the above statement, explain the application of English law in Malaysia and to what extent does English law affect the development of our law. (20 marks) English law that are still used in Malaysia composes of common law, rules of equity and the English statutes. The general application of English law can be depicted in the Section 3 of Civil Law Act 1956 (Revised 1972). However, these English law are subject to certain conditions. The first condition for the general application of English Law is types of law. The question that comes into existence is that whether the English statutes are applicable in West Malaysia. There are two notions that are devised which are from Prof Bartholomew and Joseph Chia. Prof Bartholomew asserts that English statutes are applicable as the expression “common law” simply means the law administered by the Courts of Common Law in whatever nature. Joseph chia, in contrast, propounded that English statutes are not applicable in West Malaysia. Joseph’s argument is latter supported by few local judicial decisions. In the case of Mokhtar v Arumugam, the issue that needs to be tackled by the court is whether damages in

the nature of interest for delay in returning specific goods could be awarded in Malaysia. The court ruled that such a remedy, being ‘a creature of English Statutes, is not available here’. Moving to the absence of local legislation, Section 3 of Civil Law act 1956 is merely a statutory recognition of judicial practice of restoring to English Law to fill in lacunae (gasps) in our local legislation. It can be depicted in the case of Attorney General, Malaysia v Manjeet Singh Dhillon, the court opted to the common law of contempt as stated in R v Gray as there is an absence of local legislation in regards with the contempt of the court. The third condition is cut-off dates. Only the Common Law and rules of equity and in Sabah and Sarawak, English Statutes of general application being administered in England on specific dates can be applied to fill in the lacunae. According to section 3(1)(a) of Civil Law Act, West Malaysia can apply English law as administered in England on the 7 th April 1956. As stated in Section 3(1)(b), Sabah can apply English law as administered in England on 1 st December 1951 and lastly, by virtue of Section 3(1)(c), Sarawak can apply English Law as administered in England on 12th December 1949. It must be stressed on here that cut-off dates here refer to the English law of general application being administered in England, not the application of English Law in Malaysia. In the case of Lee Kee Choong v Empat Nombor Ekor, the issue here is that whether a valuation on the fair price of shares could be questioned. The judged delivered his judgment by saying that the court need not consider developments of English Law after 1956 because under Section 3(1) Civil Law Ordinance 1956 provides that ‘any subsequent march in English authority is not embodied’. The fourth condition is suitability with ‘local circumstances’. The English law is only applicable to the extent that is permitted by local circumstances and inhabitants, subject to qualifications necessitated by local circumstances. In the case of Syarikat Batu Sinar v UMBC Finance, the court held by Invoking proviso to Section 3(1) CLA, English practice of endorsement of vehicle ownership claims by finance is different from that in Malaysia (English practice- voluntary arrangement & Malaysian practice-

statutory

provisions)

which

constitutes

circumstances of the local inhabitants of West Malaysia’

‘such

a

distinctive

local

QUESTION 3 (a) Explain Professor G W Bartholomew's rationale for the inclusion of English statutes

in

s.3(1)(a)

Civil

Law

Act

1956

(Revised

1972)

(5 marks)

at the marks in the question. if 5-7 marks- no need introduction and conclusion) (normally medium length to long essay need intro and conclusion) The first rationale behind Professor G W Bartholomew’s view of the inclusion of English Statutes is that the term expressed and used “common law” here simply means the English common law in its entirety not only some parts of the English Law. If we only apply common law and rules of equity, it will be inappropriate for us to do so as the expression “common law” obliges us to apply the whole English law in whatever nature and not only parts of the English law. The second rationale behind this is that by not applying the whole English law including the statutes of English Law, and only relying on the Common law and equitable rules administered in England, it alludes that you will be applying the outdated law. This is due to the reason that the legislation is perceived to be up-todate as there is improvement made by legislature by looking at the defects and the flaws of the Common law and rules of equity. Thus, when the legislatures incorporate the Common law and rules of equity in the statutes, they improvise the law itself.

(b) With reference to s.5 Civil Law Act 1956 (Revised 1972), discuss the application of English law in commercial matters in Malaysia. (15 marks) Section 5 is the statutory authority for the reception of English law specifically in commercial matters. There is distinction between Section 5 of Civil Law Act and Section 3(1) of Civil Law Act in terms of terminology used which Section 5 used “the law to be administered” while in contrast, Section 3(1) specifies the relevant source of English law. In exhaustive interpretation, Section of 5 of Civil Law Act introduces the whole English law in regards with mercantile matters, also together with statutes. The words used to describe subsections (1) & (2) of Section 5 are also contrasting which signify the difference in the extent to which English Law is applicable in other Malay states and other 4 states which are Sabah, Sarawak, Penang and Malacca. In essence, Section 5(1) provides that in the absence of any local written legislation, English commercial law shall be applicable in Peninsular Malaysia with the exception of Penang and Malacca, as administered in England on 7 April 1956. Conversely, as seen in Section 5(2), in the states of Penang, Malacca, Sabah and Sarawak, the English commercial law applicable will be the same as that administered in England in the like case at the corresponding period, in the absence of any local written law. In the latter subsection, the cut-off date has been removed in order to streamline the decisions of the Courts in the Straits Settlements with that of the English courts

To encapsulate, theoretically, in commercial matters, there is a continuing the reception of English law in these four states (Sabah, Sarawak, Penang and Malacca) while in the other states, the reception is halted at the cut-off dates. However, in practical, the difference is just a mere notional theory as the continuance of reception of English law pertaining to commercial matters still exists. This can be illustrated in the case of Jamil bin Harun v Yang Kamsiah & Anor, Malaysian court, following development in England, exercised jurisdiction to grant Mareva injunctions (enabling the court to freeze the assets of the defendant) and to issue ‘Anton Killer’ orders (requiring a defendant to permit a plaintiff or his representatives to enter the defendant’s premises to inspect or to take away material evidence that the defendant might wish to remove or destroy in order to frustrate the plaintiff’s claim; or to force a defendant to answer certain questions). On a further note, there are two contradicting approaches to the interpretation of Section 5, arising from two Privy Council decisions. In the case of Seng Djit Hin v Nagurdas Purshotumdas, the Privy Council held that “the law to be administered was not mercantile law, but the law” as would be administered in England in like case. To abridge this, this approach is scrutinising the nature of the case, if the case is pertaining to mercantile law, then any law can be applicable. The second approach can be depicted in the case of Shaik Sahied bin Abdullah Bajerai v Sockalingam Chettiar, the Privy Council held that the statutes were not part of the mercantile law because they contain saving clauses excluding from their scope of the borrowing of money in the course of ordinary of the mercantile law. consequently, the statutes did not apply in the strait settlements. To shorten, the second approach is examining the nature of both the law and case. If the case is mercantile law, then the law must be pertaining to mercantile matters. Finally, the ‘local circumstances’ proviso is present in section 3(1) is absent from Section 5. In practice, however, Section 5 seems to have been interpreted as if the proviso exists. In the case of Sockalingam Chettiar, the trial judge held that the facts did not allow the application of Moneylenders Acts 1900-1927 in Singapore because they were peculiar to England and not in general character, and was unsuitable and impossible of the performance in the East. Conclusively, the application of English Law in Malaysia is still relevant and its applicability in Malaysia is subject to few conditions that need to be adhered...