Unwritten Law in Malaysia

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Unwritten laws are laws that are not enacted and not found in any constitution. It comprises of English law (Common Law and Equity), judicial decisions and customs. Common Law is a major part of many States, especially Commonwealth countries. It is mainly made up of non –statutory laws, which are the precedents derived from judgments given on real cases by judges. Law of Equity resolves disputes between persons by referring top principles of fairness, equality and justness. In these cases,nothing was done against the law by the parties to dispute, but their rights are in conflict. Thus, it is different from law,both the Statutory Law enacted by Parliament and State Legislatives and Common Law which consists of precedents and opinions given on real cases by judges. In situations where there is no law governing a particular circumstance, Malaysian case law may apply. If there is no Malaysian case law, English case law can be applied. There are instances where Australian, Indian,and Singaporean cases are used as persuasive authorities. Section 3(1)(a) Civil Law Act 1956 states that courts in Peninsular Malaysia should apply Common Law and the Law of Equity as administered in England on 7th April1956.Section 3(1)(b) and Section 3(1)(c) of Civil Law Act 1956 states that courts in Sabah and Sarawak should apply common law and law of equity together with the statutes of general application as administered in England on 1st December 1951 and 12th December 1949 accordingly.But it is not stated that the Common Law and Law of Equity in Malaysia should remain unmodified and follow the same law as administered in England.Common law and law of equity in Malaysia should be developed and amended according to the local needs. In addition, these two laws should also take into account of changes in these laws in England.However, Malaysian government can set their own scope for the amended or repealed Common Law and Law of Equity in Malaysia. In the case, Commonwealth of Australia v. Midford (Malaysia) Sdn.Bhd., it was held that the doctrine of sovereign or crown immunity which was developed in English Common Law after 1956 should apply in Malaysia. It was said that any developments in English Common Law after 1956 should apply in Malaysia.In the case,Smith Kline & French Laboratories Ltd. v. Salim (Malaysia) Sdn.Bhd.,It was held that the courts have the authority to put aside any Common Law or Law of Equity which cannot be applied in Malaysia.In the case,Jamil bin Harun v. Yang Kamsiah & Another,It was decided that courts have the authority to decide whether to follow English Law (common law and law of equity) or Federal law, considering the circumstances and the scope the written law permits to do so. In the case,Karpal Singh v. Public Prosecutor,It was held that the criminal offences in Malaysia were provided by Criminal Procedure Code of Malaysia and therefore, there is no allowance for English law to apply.There are certain boundaries as to the application of Common Law and Law of Equity in Malaysia. Common law can apply in the absence of local legislation. Local law is regarded highly that the English law. The English law is only meant to fill in the lacuna, in which the local legislation is not present.Only the relevant part which is suited to the local needs and circumstances applies. Malaysia is made up of different races, each possessing their own customs, different from English law. The entire importation of English law means that the sovereignty of loca. The case law related to the boundaries of applicationis,Syarikat Batu Sinar Sdn. Bhd. v. UMBC Finance Bhd.In this case, problem of double financing occurred when first purchaser’s (UMBC Finance Bhd.) indorsement of ownership claim was not included in the registration cardof vehicle. UMBC tried to repossess the vehicle. The plaintiff sued UMBC, claiming that defendants were notentitled to the vehicle.It was held that the English law requires the indorsement of ownership claim in...
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