EXPLAIN APPLICATION OF ENGLISH
COMMON LAW AND EQUITY.
In pre-independence century,
British had five difference of administrative in Malaya like Federated
Malay States , Unfederated Malay States, Straits Settlements , Sabah and
Sarawak. The Federated Malay States (FMS) was a federation of four
protected states in the Malay Peninsula — Selangor, Perak , Negeri
Sembilan and Pahang. It was established by the British government in
1895 and lasted until 1946.The United Kingdom was responsible for foreign
affairs and defense of the federation. Although the states were officially
responsible for their domestic policies, they were bound by treaty to follow the
advice of the British Resident General. Kuala Lumpur, which was then part of
Selangor, was the capital of the federation. The first Resident General was Sir
Frank Swettenham.
The Federation states, along with
the other Malay states of the peninsular and British possessions, were overrun
and occupied by the Japanese during World War II. After the liberation
of Malaya, together with the Straits Settlements and the Unfederated Malay
States, the four protected states entered the Malayan Union. The federal form
of government was subsequently used as a model for consolidating the
independent Federation of Malaya and later evolution into Malaysia in 1963,
with the inclusion of Sabah (North Borneo), Sarawak and Singapore. The Treaty
of Federation was drawn up and signed on the 1st of July 1896, whereby the four
rulers agreed to a federation and centralized administration of the states. By
this treaty and the previous acceptance of the British Residents System in
Selangor (1875), Perak (1874), Negeri Sembilan (1873) and Pahang (1888); the
FMS were officially turned into a nominally independent protectorate of Great
Britain (not to be confused with the British possessions like the territories
of the Straits Settlements) The Malay Rulers effectively surrendered their
political power in their states. All decisions were officiated only after
consulting and with the due consent of their respective Residents. However, the
United Kingdom pledged not to interfere in matters relating to native Malay
traditions and Islamic affairs. British established the Federal Council in 1889
to administer the FMS. It was headed by the High Commissioner (The Governor of
the Straits Settlement), assisted by the Resident-General, the Sultans, the
four state Residents and four nominated unofficial members. This structure
remained until the Japanese invaded Malaya on 8 December 1941. From 1896 to
1936, administrative power was held chiefly by the Resident-General, later
known as the Chief Secretary of the Federation, but after this period, authority
over the states shifted to the High Commissioner.
The Unfederated Malay States
comprised five British protected states in the Malay Peninsula in the first
half of the twentieth century. These states were Johor, Kedah,Kelantan, Perlis,
and Terengganu. In contrast with the four neighboring Federated Malay
States of Selangor, Perak, Pahang, and Negeri Sembilan, the Unfederated Malay
States were not bound by a common institution, and did not form a single state
in international law. When the Straits Settlement was dissolved in 1946, Penang
and Malacca were grouped together with the five Unfederated Malay States and
the four Federated Malay States to form a unitary Malayan Union. In 1948, the Malayan
Union was reconstituted as a federation of eleven states known as the Federation
of Malaya. Nine continued as British Protected States, while two of them,
Penang and Malacca remained as British colonies. The Federation of Malaya
gained full independence from the UK in August 1957. Originally established in
1826 under the authority of the British East India Company, the Straits
Settlements came under direct British control as a crown colony on 1 April
1867. The colon subsequently was dissolved as part of the British reorganization
of its South-East Asian dependencies following the end of the Second World War.
The
original individual settlements were Malacca, Penang (also known as Prince of
Wales Island), and Singapore.
From 1907, Labuan, off the coast of Borneo, was included in the group.
With the exception of Singapore, these territories now form part of Malaysia.
The Kingdom of Sarawak was a state in
Borneo founded by Sir James Brooke in 1842. Brooke obtained independent
kingdom status for the land from the Sultanate of Brunei as a reward for
countering piracy and insurgency. In 1888, his successor Charles Anthony
Johnson Brooke accepted a British Protectorate for the region. This status
lasted until 1946, when the third ruler Charles Vyner Brooke ceded his
jurisdictional rights to the United Kingdom. Since 1963, Sarawak has been a
state of Malaysia. North Borneo was a British protectorate under the sovereign
North Borneo Chartered Company from 1882 to 1946. After World War II, it became
a crown colony of the United Kingdom from 1946 to 1963, known as British North
Borneo. Currently, it is known as the state of Sabah, East Malaysia. These all
administrative had contributed a huge effect in application of common law and
equity in Malaysia.
The law of Malaysia is mainly based on the
common law legal system that means that English law forms part of the laws of
Malaysia. In Article 160 of the Federal Constitution states the definition of
law which includes ‘the common law in so far as it is in operation in the
Federation or any part thereof’ that concerns the extent to which the English
law is applicable in Malaysia. In the Section 3 of the Civil Law Act 1956 (Act
67) (Revised 1972) gives the meaning of the English law which means ‘the common
law of England and the rules of equity’ and, in prescribed circumstances, English
statutes. The common law is the body of rule developed by the old common law
courts - Court of Exchequer, Court of Common Pleas and Court of King’s Bench –
that distinct from the old Court of Chancery and were extinct today’s world.
Before Norman Conquest in 1066, the common law was applied in England and based
essentially on customs common throughout England in contrast to local customs.
The common law is the unwritten or unenacted law of England and it based solely
on decisions of the courts.
Equity means ‘fairness’ and is
the body of rules developed first by the Lord Chancellor and by the old Court
of Chancery in the end of the fifteenth century. Equity, unlike the common law,
is not a complete body of rules which can exist on its own and it merely filled
the gaps in the common law and softened the strict rules of common law.
Furthermore, equity is a discretionary system of justice. An equitable remedy
is not available as of right; it may not be granted if the plaintiff considered
morally undeserving. The equitable remedies offered were injunction, specific
performance, rescission and rectification that the major contributions of
equity are the trust concept.
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 Malaysia. The extent of the application of English law is prescribed in
the following three sections which are Section 3 and Section 5. 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. 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. 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 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 view.
As in case of Jamil
Harun v Yang Kamsiah & Anor ( 1984 ), the Privy Council held that,
it is for the courts in Malaysia to decide, subject always to the statue law of
the Federation, whether to follow English Law. Modern English maybe
authorities, but not binding. In determining whether to accept their guidance,
the courts will have regard to the circumstances of the states of Malaysia and
will be careful to apply them only to the extent that the written law permits,
and no further than, in their view, it just to do so. As in case Karpal
Singh v Anor v Public Prosecutor ( 1991 ) MLJ 564, the Supreme Court
held to the effect that English Law cannot be applied in criminal procedure,
which in Malaysia is governed by the Criminal Procedure Code.
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. 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 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.
As in case of Seng Djit Hin v Nagurdas
Purshotmudas Co. ( 1023 ) A.C 444, which the facts is for action of
damages resulting from failure to deliver good caused by a shortage of ships.
The British government had requisitioned ships during war time. The issue was
the application of English Defense of Realm (
Amendment ) Act 1915 and the Courts ( Emergency Power ) Act 1917. The
English statues cited above were not part of the Mercantile Law which they
thought was the law to be administrated in term of Section 5 of the ordinance.
The question to be decided in the Colony is a question as to the law of sales.
No one can doubt that the law of sales is part of Mercantile Law. If the same
question as to sale had to be decided at the same time in England, it is clear
beyond all doubt that the above cited statues of 1915 and 1917 could be pleaded
if the facts allowed of their application.
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