Application of English Law in Malaysia
3.1Introduction
The application of English Law in Malaysia is restricted under the Civil jurisprudence Act 1956. The common jurisprudence of English and regulations of equity is merely applicable in Malaysia before the cut-off day of the month and after the cut-off day of the month, Malaysia tribunal can non have the development of common jurisprudence. The above stated is the rigorous sense of the restriction under Civil Law Act 1956.
The application of the English jurisprudence is had been set up in two commissariats in the Civil jurisprudence Act 1956. The chief difference between the two commissariats viz. Section 3 and subdivision 5 is that subdivision provides the general application of the English jurisprudence while the other provide the application of English jurisprudence in commercial affair merely.
3.2General Application of English Law
Harmonizing to Section 3 of the Civil Law Act, common jurisprudence of England and regulations of equity is applicable in the Peninsula Malaysia while in Sabah and Sarawak, the legislative acts of general application of English jurisprudence is applicable in add-on to the common jurisprudence and regulations of equity. [ 1 ] However, the English can merely be applied in Malaysia if the state and its local dwellers license and the local fortunes render necessary. [ 2 ] It is good for us to observe that there is rather a figure of issues had been arise as to the reading of the phrase “ topic to such makings as local fortunes render necessary” . There is no fixed definition about the phrase stated above and it is subjected to the tribunal to find the significance.
The application of English jurisprudence in Malaysia is capable to the express commissariats of this Act or any other written jurisprudence in force in Malaysia or any portion thereof. This means that is the English common jurisprudence is conflicting with any other written jurisprudence in Malaysia, so the jurisprudence in Malaysia shall be applicable unless there is lacuna or spread in the proviso and in the demand of the English jurisprudence to rectify it. If there is struggle between common jurisprudence of England and regulations of equity, the regulations of equity shall predominate. [ 3 ]
There are three makings that need to be fulfilled before English jurisprudence can be applied in Malaysia. First, there is absence of the local statute law which is the blank or spread in the statute law. Second, cut-off day of the months need to be considered. Last but non least, English jurisprudence must be permitted by local fortunes and dwellers, subjected to makings necessitated by the local fortunes.
Under s.3 of the Civil Law Act, the cut-off day of the month for the Peninsula Malaysia in on 7 April 1956 while in Sabah, the cut-off day of the month is on 1 December 1951 and for Sarawak the cut-off day of the month is on 12 December 1949.
English jurisprudence demands to be modified in order to accommodate the local fortunes. In make up one’s minding the instance Phileoallied Bank ( M ) Bhd V Bupinder Singh A/L Avatar Singh & A ; Anor, Gopal Sri Ram JCA had emphasised that the tribunal in Malaysia, while using the regulations of equity prevailing in England, alteration is needed to accommodate the local fortunes as stated in the provision of Section 3 ( 1 ) of the Civil Law Act. [ 4 ]
3.3Application of English Law in Commercial Matter
Section 5 of the Malaysian Civil jurisprudence Act 1956 enables the application of English jurisprudence in commercial affairs. English jurisprudence is to be applicable to the regard to the jurisprudence of partnerships, corporations, Bankss and banking, chief and agents, bearers by air, land, and sea, Marine insurance, norm, life and fire insurance, and with the regard of mercantile jurisprudence by and large. The jurisprudence to be administered shall be the same as would be administered in England in the similar instance at the day of the month of the coming in force of the Civil Law Act 1956 and if such inquiry or issue had arisen or had to be decided in England, unless in any instance other proviso is or shall be made in any written jurisprudence. [ 5 ]
For illustration, the Contracts Act 1950. If there is express commissariats in the Contracts Act 1950, so English jurisprudence is no longer applicable by the tribunal in giving opinion. If the statutory proviso is different from the common jurisprudence place, English jurisprudence is besides unsuitable. A good illustration in given in Halsbury’s Laws of Malaysia was that if in Malaysia, there is a local statute law about contract jurisprudence, where a party revoking a contract was entitled to amendss but the proviso in English jurisprudence is non the same, so justice have to give the opinion harmonizing to the local statute law and non harmonizing to the English jurisprudence. [ 6 ]
In Malaysia, the philosophy of restraint of trade is wholly different from the common jurisprudence and we can non trust on the English common jurisprudence in make up one’s minding instances refering with the philosophy of retrained of trade. This can be seen in the instance Wrigglesworth V Wilson Anthony where the complainant claim an injunction to keep the suspect, an advocator and canvasser who is practising within a radius of five stat mis from Kota Bharu, Kelantan. On 20ThursdaySeptember, 1962, the suspect entered into an understanding of service with the plaintiff’s house where the complainant agreed to dispatch the suspect from the footings and duties. However, clause 8 of the said understanding stated that the suspect can non go on practising as advocator and canvasser within 5 stat mis from Kota Bharu for two old ages get downing from the day of the month the understanding had been rescinded without the consent from the complainant. The suspect continued practising his profesion even though the complainant haven’t given his consent. The issue is that whether advocator and canvasser can be restrained from exerting his lawful profession. In this instance, Hashim J held that: “ … this instance should be decided on the reading of subdivision 28 of the Contracts ( Malay State ) Regulation, 1950… I do non believe the English instances are applicable as the Contracts ( Malay States ) Regulation, 1950, is non based on the English jurisprudence of contract. Section 28 is rather clear. In my sentiment, any understanding to keep the suspect from exerting his lawful profession is void.” [ 7 ]
Besides that, the common jurisprudence rule is non applicable in the contract jurisprudence in Malay States associating to instances in which involved the release of the joint surety without consent of the other. This can been seen in Song Bok Yoong V Ho Kim Poui a magistrate’s civil entreaty instance, where Macintyre J held that: “ Counsel relied on English governments for the proposition that the release of a joint surety without the consent of the other would let go of him from his duty under the bond. This common jurisprudence rule is non applicable to contracts in this state. In this state the jurisprudence associating to contracts is contained in the Contracts ( Malay States ) Regulation, 1950 in which some of the commissariats are at discrepancy with the rules of common law-as for case, subdivision 45 which declares that the release of one articulation promiser by the promise does non dispatch the other joint promisor.” [ 8 ] This evidently shows that if there is clear commissariats in local statute law in our state, the Judgess need to make up one’s mind the instance based on the local statute law but non the common jurisprudence rule.
When there is absence of the clear commissariats in the Contracts Act 1950, English common jurisprudence is applicable by the virtuousness of subdivision 5 of the Civil Law Act 1956. This can be seen in the instance JM Wotherspoon & A ; Co Ltd V Henry Agency House where there is a uncertainty about the place of the suspects house. It is non certain whether the suspect house in Kuala Lumpur was an agent del credere of the complainant in London or non. In make up one’s minding the instance, Suffian J held that as the Contracts ( Malay States ) Ordinance No.14 of 1950 is silent on this topic ( the del credere bureau ) , by virtuousness of subdivision 5 ( 1 ) of the Civil Law Ordinance No.5 of 1956 the jurisprudence applicable in England is applicable in the Federation. [ 9 ] The issue of del credere bureau in contract is besides raised in Royal Insurance Group v David, where the justice, Gill AG LP had given his opinion based on the Wotherspoon’s instance opinion given by the Suffian J in leting the application of English Law by the virtuousness of s.5 of Civil Law Act 1956. [ 10 ]
3.3Non-application of English Land Law
Section 6 of the Civil Law Act 1956 had excluded the application of English land jurisprudence into the federation. Section 6 had stated that nil in this Part shall be taken to present in Malaysia or any of the States comprised in this any portion of the jurisprudence of England associating to the term of office or conveyance or confidence of or sequence to any immoveable belongings or any estate, right or involvement therein. [ 11 ] English land jurisprudence can non be applied in Malaysia because Malaysia already have National Land Code, 1956.
We can mention to the instance Datin Siti Hajar V Murugesu. [ 12 ] In this instance, the suspect had built an attack route over the plaintiff’s land claiming that he had a right manner thereon. The complainant sued the suspect trespass and amendss. The issue of the instance is that whether the English common jurisprudence is still applicable. It was held that There is clear purpose in subdivision 4 of the National Land codification, 1956 that rights, autonomies, privileges, duties and liabilities originating under the Land codification, 1926 and bing at the clip of the beginning of the codification shall be governed by the new codification and hence the proceedings in the instance are governed by the National Land Code because the express proviso in Part 17 of the National Land Code associating to easements, the English common jurisprudence as to easements had ceased to use in West Malaysia. Syed Agil Barakbah J stated that: “ … it is clear that the regulation allows the response of the English common jurisprudence, regulations of equity and legislative acts subject to the conditions already mentioned. However, the consequence of subdivision 6 seems to throw out the application of the common jurisprudence and regulations of equity associating to set down term of office, transportation or transmittal of immoveable belongings, or any estate, right or involvement therein… ” [ 13 ]
In Phileoallied Bank ( M ) Bhd V Bupinder Signh A/L Avatar Singh & A ; Anor, a instance related to Land Law, Gopal Sri Ram JCA had cited the instance Lian Keow Sdn Bhd ( In Liquidation ) & A ; Anor v Overseas Credit Finance ( M ) Sdn Bhd & A ; Ors in giving his opinion. In that instance, it has been stated that the attack that have to be adopted in using the regulations of equity to the Land Law in our state. Syed Agil Barakbah SCJ held that:
“ … The Torrens system does non forestall or curtail the creative activity of good involvement in land by the manner of express, implied or ensuing trust arising by operation of jurisprudence in Malaysia by virtuousness of s.3 of Civil Law Act 1956. It does non abrogate the rules of equity but alters the application of peculiar regulations of equity in so far as is necessary to accomplish its particular objects. In this manner, the tribunal is entitled to exert legal power in personam to take a firm stand upon proper behavior in conformity with just rules and norm… ” [ 14 ]
The construct of the English legal mortgage is non recognized in the jurisprudence of immoveable belongings. However, the tribunals in Malaysia had ever recognize the just mortgage created by the sedimentation of rubric workss and the just involvements in land. The authorization on this point is Mahadevan & A ; Anor v Manilaal & A ; Sons ( M ) Sdn Bhd. The Federal Court Judgess held that:
“Our land jurisprudence does non recognize a mortgage Idaho it means a mortgage in the sense if English land jurisprudence… But our land jurisprudence surely recognises a mortgage in the sense of Torrens system, referred to by text written as Torrens Mortgage… For the intent of avoiding confusion, our National Land Code drops the word ‘mortgage’ and uses the word ‘charge’ in topographic point of Torrens mortgage. Therefore when subdivision 21 ( 1 ) of our Limitation Act speaks of a ‘mortgage’ it must intend a ‘ charge’ as understood and provided for in Part Sixteen of our National Land Code… ” [ 15 ]
In the instance of Malayan Banking Berhad V Zahari Bin Ahmad, the suspect owed the complainant a certain sum of money by subscribing a loan understanding. The suspect failed to refund the loan and the complainant applied to the tribunal for an order in order to acquire a write of ownership of the belongings and an order so that they can sell the belongings. Besides that, they wanted the money earned from the merchandising of the belongings be paid to them in satisfaction of the chief amount and the involvement due and owing them. In giving opinion, the justice had referred to the Mahadevan’s instance. It was held by Mohamed Dzaiddin J that:
“Clearly, the National Land Code does non forbid the creative activity of just charges and based on a organic structure of governments, our land Torahs recognize just charges. “ [ 16 ]
In a nutshell, the land jurisprudence in Malaysia do recognises mortgages but non in the English land jurisprudence sense. In Malaysia, mortgage must be mentioned as charges so that it would non be confused with the mortgages in the English Land jurisprudence.
3.4Application of the 1989 Salvage Convention into Malayan jurisprudence
In Malaysia, subdivision 403 of the Merchant Shipping Ordinance 1952 is related to the salvage and transportation. In subdivision 403 [ 17 ] , it was stated that commissariats authorising the High Court to make up one’s mind upon all claims associating to salve and proviso relating to the responsibility and authorization of the receiving system of wrecks over vass in hurt, the detainment of belongings apt for salvage by the receiving system of wrecks, the allotment of salvage by the receiving system of wrecks or as the instance may be, by the High Court. In simple significance, the High Court have legal power in make up one’s minding the instance which involves the claiming of the salvage and wreck no affair the wreck or salvage was found in the high sea or non and whether the wreckage was found on land or on sea or partially on both.
Since Malaysia still haven’t acquiescence to the International Convention on Salvage 1989, the common jurisprudence of salvage will be applied unless Malaysia have agreed to integrate the commissariats of the International Convention on Salvage 1989, with contractual binding, into the salvage service. In Malaysia, common jurisprudence had become the lone footing for the tribunal to construe the salvage jurisprudence other than the commissariats provided in the Merchant Shipping Ordinance 1952. [ 18 ] English common jurisprudence is used to steer the Malayan Court in the Salvage jurisprudence through the application of the English Law as per stated in the Civil Law Act 1956.
3.5Passenger car of Goods by Sea
World Trade Organisation ( WTO ) had released its latest figure on universe trade in 2010 on 7 April 2011. For the ranking for 2010, Malaysia had been ranked 23th in the world’s taking exporter and 26 in the list of world’s taking importers for the ware trades. [ 19 ] Malaysia used nautical conveyance to export goods largely. So, in order to protect the national involvement, the authorities have to give protection to the maritime by guaranting the safety and security of the Malayan Maritime Zone. Malayan Maritime Enforcement Agency [ 20 ] had been established for the protection of the safety of the maritime.
There is no local statute law in our state that can be used to regulate the charterparties. Nevertheless, subdivision 5 of the Civil Law Act had stated: “ … all inquiries or issue which arise or which have to be decided… with regard to the jurisprudence of… bearers by air, land, sea, Marine insurance, norm… the jurisprudence should be administered in the similar instance at the day of the month of the coming in force of this Act, if such inquiries or issue had arisen or had to be decided in England, unless in any instance other proviso is or shall be made by any written law.” Accordingly, Malayan tribunal had been following the English common jurisprudence in make up one’s minding instances that is relevant to the nautical country.
However, there is still exclusion to the application of English jurisprudence in nautical affair in Malaysia. Although it is really rare, the application of English jurisprudence in that affair will belie with the contractual rules which had been stated in the Contracts Act 1950. In add-on, most of the charter party contracts are international contracts that need to be referred to London or New York for arbitration. [ 21 ] International contracts need to be referred to London or New York is because in most of the clip, the other parties involved are aliens.
