MBA 1007

BUSINESS LAW

COURSEWORK

MAY 2018

QUESTION 1

Application of English Law in the Federation of Malaysia

In 1963, which when Malaysia was formed, there were three separate statutes authorizing

the application of English Law which are the Civil Law Ordinance 1956 (CLO 1956) in

Peninsular Malaysia, the Application of Laws Ordinance 1951 in Sabah as well as the

Application of Laws Ordinance 1949 in Sarawak.

With effect from 1 April 1972, after the formation of Malaysia, the CLO 1956 was

extended to Sabah and Sarawak by the Civil Law ordinance (Extension) Order 1971. The

Civil Law Act 1956 (Act 67) (Revised 1972) (CLA 1965) being incorporate to all the

three earlier statutes that are the statutory authority for the application of English law in

today’s Malaysia. The extent of the application of English law is prescribed in the

following three sections which are Section 3, Section 5 and Section 6.

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

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:

In West Malaysia or any part thereof, apply the common law of England and the rules of

equity as administered in England on the 7th day of April, 1956;

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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;

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 the 12th day of

December,1949 , subject however to sub-section 3(ii):

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.

In short, section 3(1) provides that the courts in Malaysia shall apply the common law as

well as rules of equity existing in England in the absence of written law on 7th April 1956

in West Malaysia, 1st December 1951 in Sabah and 12th December 1949 in Sarawak.

In sub-sections (1)(b) and (1)(c) of section 3 states that English statutes of general

application Sabah and Sarawak shall be applied. The difference in wording between these

subsections on the one hand and subsection (1)(a) on the other hand perpetuated a

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controversy which earlier arose from section 3(1) CLO 1956 which was word for word

the same as section 3(1)(a) CLA 1956. Are English statutes of general application

applicable in West Malaysia? Two views, each as cogent as the other, exist. Professor

Bartholomew, writing on section 3(1) CLO 1956, holds that such English statutes are

applicable.39 Joseph Chia, in discussing the corresponding provision in the CLA 1956,

expresses a contrary opinion.40 Judicial opinion supports the Joseph Chia’s view.

QUESTION 2

https://lawaspect.com/common-law-3/

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QUESTION 3

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