EQUITY IN THE MALAYSIAN LEGAL
SYSTEM
AHMAD IBRAHIM KULLIYYAH OF LAWS
Sem. 2 (2018/2019)
Dr. Sharifah Zubaidah& Dr. Zuraidah Haji Ali
27/06/2020
1
MAIN POINTS :
• 1)
Equity applies in Malaysia through sections 3 and 5 of the Civil Law Act
1956.
• 2)
The extent of the application of common law and equity in Malaysia
differs according to cut off dates, local application and case law.
• 3)
The extent of application of common law and equity in commercial
matters differs between Peninsular Malaysia, and Penang, Malacca and
East Malaysia.
• 4)
Special position of equity under Malaysian Torrens System.
Dr. Sharifah Zubaidah& Dr. Zuraidah Haji Ali
27/06/2020
2
RECEPTION OF ENGLISH COMMON LAW
AND EQUITY B4 FORMATION OF MALAYSIA
Straits
Settlements
• British colonies
• Direct reception of
EL through COJs
Dr. Sharifah Zubaidah& Dr. Zuraidah Haji Ali
Malay States
Borneo States
• British Protected
States
• Resident System
• British
Protectorates until
1946, then became
Crown colonies.
27/06/2020
3
STATUTES AUTHORISING APPLIC ATION OF
ENGLISH CL AND EQ IN MALAYSIA IN 1963
Civil Law Ordinance 1956 in Peninsular Msia
Application of Laws Ordinance 1951 (Sabah)
Application of Laws Ordinance 1949 (Sarawak)
Dr. Sharifah Zubaidah& Dr. Zuraidah Haji Ali
27/06/2020
4
SECTION 3(1), CIVIL LAW ACT 1956:
• “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)
• (b)
• (c)
in Peninsular Malaysia, or any part thereof, apply the common law of
England and the rules of equity as administered in England on 7th April
1956;
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 December 1951;
In Sarawak, (same as (b) above except cut off date is 12 December
1949,
Dr. Sharifah Zubaidah& Dr. Zuraidah Haji Ali
27/06/2020
5
APPLICATION OF COMMON LAW AND
EQUITY POST-FORMATION OF MALAYSIA
Date
Subject
Peninsular Malaysia 7 April 1956
English CL and rules of EQ
Sabah
1 December
1951
English CL, rules of EQ and statutes of
general application
Sarawak
12 December
1949
English CL, rules of EQ and statutes of
general application
Dr. Sharifah Zubaidah& Dr. Zuraidah Haji Ali
27/06/2020
6
WHETHER S.3(1) ALSO INTRODUCES WHOLE
OF ENGLISH LAW INCUDING STATUTES
• Two views, see discussion at pp. 25 and 27 of your
textbook.
• Mokhtar v Arumugam [1959] 1 MLJ 232:
Smith, J. declined to grant damages of interest for
delay in returning specific goods as this relief was
provided by an English statute. He said such has no
application in the FMS.
Dr. Sharifah Zubaidah& Dr. Zuraidah Haji Ali
27/06/2020
7
EXTENT OF APPLIC ATION?
LIMITATIONS IN APPLIC ATION OF ENGLISH
CL AND RULES OF EQ
•
• I) LACUNAE - No other provision has been made by any written law in
force in Malaysia on that particular area or subject matter;
• 2)
Different cut-off dates to apply EL and EQ in PM, Sabah and Sarawak.
• 3)
Proviso: “..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”
Dr. Sharifah Zubaidah& Dr. Zuraidah Haji Ali
27/06/2020
8
APPLICATION OF EL AND EQ TO
COMMERCIAL MATTERS?
• Section 5, Civil Law Act 1956:
• (1)
In all questions or issues which arise or which have to be decided in
the states of PM other than Penang and Malacca with respect to the
law of partnerships, corporations, banks and banking, principals and
agents, carriers by air, land and see, marine insurance, average, life and
fire insurance, and with respect to mercantile law generally, the law to
be administered shall be the same as would be administered in England
in the like case at the date of the coming into force of this Act…unless
in any case other provision is or shall be made by any written law.
Dr. Sharifah Zubaidah& Dr. Zuraidah Haji Ali
27/06/2020
9
FOR PENANG, MALACCA, SABAH AND
SARAWAK?
• (2) Same as (1) except, ‘the law to be administered shall be the same as
would be administered in England in the like case at the corresponding
period” – unless in any case other provision is or shall be made by any
written law.
• Therefore, direct application of English Law EXCEPT if there is a written
local law on the matter.
Dr. Sharifah Zubaidah& Dr. Zuraidah Haji Ali
27/06/2020
10
NEPLINE SDN BHD V JONES LANG WOOTTON [1995] 1 CLJ
865 AT 869
• Abd Hamid J;
• S3 of CLA 1956 is the law of Malaysia as it stands today.
• Courts in Malaysia have no choice but to keep on applying it.
• “In my view the approach that the Court should take is first to determine whether there is any
written law in force in Malaysia. If there is, the Court need not look anywhere else. If there is
none, then the Court should determine what is the common law of the rules of equity as
administered in England on 7 April 1956. Having done that the Court should consider whether
“local circumstances” and local inhabitant” permits its application, as such. If it is ‘permissible”,
the court shall apply it. If not, I am of the view that, the Court is free to reject it totally or adopt
any part which is “permissible”,with or without qualification.
Dr. Sharifah Zubaidah& Dr. Zuraidah Haji Ali
27/06/2020
11
CONT
• Where the Courts 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 doing so, the Court is at the liberty
to look at any sources of law, local or otherwise, be it common law
of or rules of equity as administered after 7 April 1956, principles of
common law in other countries, Islamic law of common application
or common customs of the people in Malaysia. Under the provision
of s3 of CLA 1956, I think, that is the way the Malaysian common law
should develop.
Dr. Sharifah Zubaidah& Dr. Zuraidah Haji Ali
27/06/2020
12
ALMARHUM PROF AHMAD IBRAHIM
•
•
a)
b)
c)
d)
There is no need to rely on English law to fill the lacuna as the law is
developed in M’sia through legislations and judicial decisions.
Need to consider other methods eg.
Muslim law of other land : eg Egyptian Civil Code
Rules of customs
Principles Islamic law
Principe of natural law.
Dr. Sharifah Zubaidah& Dr. Zuraidah Haji Ali
27/06/2020
13
WHAT ARE THE IMPACTS OF THE
APPLICATION OF SEC 3 OF CLA?
• In family law
• Commercial law
• Land law
Dr. Sharifah Zubaidah& Dr. Zuraidah Haji Ali
27/06/2020
14