Malaysian Legal System & Law of Tort

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a.The application of English Law in our legal system.
English Law is part of Malaysian law. The definition of law in Article 160 of the Federal Constitution includes ‘the common law in so far as it is in operation in the Federation or any part thereof’. That qualification concerns the extent to which English Law is applicable in Malaysia.

First, we will discuss on the meaning of ‘sources’. Historical sources is the factor which influenced the development of law in religious and custom. Law can be found through statutes, law reports, textbooks and decision of courts. Legal sources is the legal rules that make up the law whether it is written or unwritten law.

There are two sources of law, written law and unwritten law. Written law is the law embodied in the Federal and State Constitutions and in a code or a statute including subsidiary or delegated legislation. Examples of written law are legislation, subsidiary legislation, federal and state constitution.

Unwritten law is the law which is not enacted by the legislative (Parliament and State Assemblies) and which is not found in the constitutions. Examples of unwritten law are the customary law, Syariah law, English law, judicial decisions and law reports.

English Law as a source of law by referring to Section 3(1) of Civil Law Act 1956 (Revised 1972). This Section provides:

(a)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. (b) 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. (c) In Sarawak, apply the common law of England and the rules of equity, together with statutes of general application, as administered or enforce in England on the 12the day of December 1949.

Provided always that the said common law, rules of equity and statutes of general application shall be applied so far as the circumstances of the States of Malaysia and their respective inhabitants permits and subject to such qualifications as local circumstances render necessary.

Before 1 April 1972, West Malaysia was using Civil Law Ordinance 1956, Sabah used The Application of Law Ordinance 1951 and Sarawak applied The Application Of Law Ordinance 1949. After 1 April 1972, all these enactments incorporated into Civil Law Act 1956 (Revised 1972).

Differences between these English Law are by date and language. The difference of wordings between Section 3(1)(a), (b) and (c) has raised a controversy as to whether English statutes of general application are applicable in West Malaysia.

There are opinions regarding the differences of language. Prof. GW Bartholomew in his article entitled, “ The commercial law of Malaysia: A study of the reception of English law (1965) MLJ p.p. 26 - 32, holds the view that English statutes is applicable in Malaysia. Prof. GW Bartholomew stated that without statute common law and equity is not complete. LA Sheridan disagree with Bartholomew as statute not apply in West Malaysia.

In Mokhtar v. Arumugam (1959) where a gardener was arrested by the police under the Moneylenders Ordinance 1951 and the police seized documents without a search warrant. The documents however were later returned. In an action against the police the court of first instance awarded damages to the gardener without him claiming for it. The police appealed against the decision. The court held that in England damages could be awarded for the delay in returning of goods but such remedy was provided under a statute not a principle of the common law. Since English statutes are not applicable in the country the remedy cannot be awarded. The decision was court could not award damages in nature of interest because such relief (English Statute) is not available here.

In Pushpah a/p MSS Rajoo, stated that English statutory provisions relating to...
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