RECEPTION OF ENGLISH LAW UNDER SECTIONS 3 AND 5 OF THE CIVIL LAW ACT 1956 (REVISED 1972) ‘An interesting question which has given rise to a cerain amount of academic discussion’ it the extent to which Malaysian courts ean adopt Baglish law. Secdiont $ and 5 of the Civil Law Act (Revited 1972) allow ‘he courts to apply Enjish law in cersin circumstances but the exact scope of the provisions is far from cleer Ic is regretable that che ‘Commissioner of Law Revision dit not take the opportunity co express his incentions with a greatee degree of certainty. Although the Act is subject to a number of ambiguities, the discussion inthis note will be zesticted «© two isuss: fits, whether section 301) of the Civil Law Act, 1956 cenvitages the imporeation of English satueee passed before the 7th Apt, 1986; and secondly, te related isue of whether there is any difference ‘between section 3¢1X@) and section (1) of che Act. Section 3(LMa) peovides that in the absence of anv written provision in Malaysia the courts shall “in West Malaysia or any part thereof, apply the common law of England and the cules of equity 26 administered in England on the 7th day of April, 1956." Docs thie subsection purport ro incorporate the whole of English lw, including statutes which may have modified the common la, or docs it have a more resticted application? Professor Bartholomew? "writing on seetion 3(1) of the Civil Law ‘Ordinance, 1956 which is in pari materia with section 3(1}a) of the Revised Act, submis char English legislation is applicable under che Ordinance. He argues that the admissibility of Boglsh statutes sa matter ‘of “ther necessity” and that fo interpct section 3(1) ia such away’ that "see shetan, Meleye and Singapore, The Borneo Territories. The Davefopmant of Be Lows ad Consheian C961). p. 1%; GX. Bartolome, The Commer Law of lela 968) p.21539. “ie . save into fara: other provision has been made or ent hereatteche made by any ‘written las in fore in ene Federtion ov any par thereof the Cure shall apply ene ‘common law of England nel the rues of equley as adrinsered in England atthe dace ofthe coring inta force of tht Ordinance {7 Apel 1956}: Provided aways ‘hat the aid common law and rules of equity shall Be applied =0 far only a the ireumstances of the States eomprlzd In the Federtion and ther tempective Inbitans permit and subject to such quuMeaions at loc circumstances renderReception of English Lave a omc only the unceformes. version of English law can be received would be co Gromilace common law rules which have been found to be inadequate in snyland. He conden that the expression ‘common law’ simply means fhe law adminiscezed by the Comes oF Common Law ~ whatever ity are. “The tem “common law’ is admitedly an expression that is susceptible fof more than one meaning. The dlefisition which Prof. Bartholomew MHopted to suie hie argument is unquestionably wide enough eo cover suaruces Bor IC is submitted chat this is nor the meaning commonly Schered to, The term “common law’ is more frequently used in conte distinction 19 statute law and it in fact a body of principles built up from the decision of judges im Cammon Law Courts. Blackstone" describes the common iw i his commentaries “This unwetten oe common law is propery distinguishable into ehice lends: 1) General customs which ate the universal rule oF the whole kingdom, and form the common lay in its stricter and more usual signification. 2) Pavicular customs, which for the most pars affect only the inhabitents of particular district. 3) Cetaio particular laws; Sehich by custom are alaptcd and used by some particular cours, of prey general and extensive jsisdicion.” He gocs 00 £0 Say, “all these doctrines -..are not set down in any wwsitten stature oF ordinance, but depend merely upon immemorial wage, Uae i, upon common lw, fr thei supper." A contemporary definition, cntiely ‘cousitent with Blackstone's, has been offered by Glanville Wiis He stares “Originally this mean the law that was not los) thar i, the law that wees common to the ahote of England. This may stil be ts meaning in 4 particlae context, but itis not the usual meaning. More usually the phrse will signify the law that i not the result of lepsation, that is fhe faw created by the custom af the people and the dessins of the Suds." “he definition accepted by Professor Bamtholomew on the other handy i ae bes of hietocieal interest and bas never guined cuttency. Moreover it is 4 genera rule of construction dae words in @ statute must be construed. not only in their populs sense but aso in the sense they ore when the seatute was pased.? In 1956 when the Civil Law 6, Jonie, the Dictionay of Eagich Lae (1999), which defines common tw at “that pare of the law of Bogland whic, before the Judicature Act, 1873.75, as administered by the common lw cour. a8 opposed to equly (qv oF that Part ofthe law adenine by the Covet of Chancery.” "1 camry. 67. Leaming tbe Lew (7h Bd.) (1963) p25,“ Jervol Undaarg-Undang tyra Ordinance came into force, che teem ‘common law’ was universally em ployed to distinguish cate law from statues and chs, itis submitted, ‘on principle must be the mesning intended by the Civil Law Ordinance 1956. ‘The Malaysian Courcs seem to confirm the view that sections 3(1) does not admit of statutes. In Mokbear y. Arumrugarn,® Thompson C:J., Smith J. and Ong J- refused co entertain any arguments based on an English ‘atuce, Seth J. delivering che judgement of the court, suds tt is quite clear that in England the power of the court to award damages sn che narure of interest for delay in retuming specific goods isa remedy con- ferred by statate znd not one avilable at common la. This celiet, being a creature of English statute, is noc available here. See section 31) of the ‘ivil Law Ordinance, 1956." la Ong Guor Hua v. Chong,?® which eases the question of the validity of securities given in respect of geming contacts, Thompson CJ. reiterated lis views. 1c was implicit in his Lordship’s judgement that unless the English Gaming Acts of 1710 and 1835, whicn provided that every security given in respect of games shall be deemed to have been given for aa illest consideration, were enacted locally, as the English Gaming Acts of 1845 and 1892 were in che Civil ‘Law Ordinance, 1956, they will noc be applicable here. ‘Arcecent Privy Council decision, Leang Bee & Co. v. Ling Nam Rubber Works,!* makes some interesting observations on this point, but un- oveunately the Board di nor spell ane its position exactly. Sie Prank Kitto agreed that counsel for the appellans was right in conceding chat in “Malaysia the common law presurnption that, “a fire which began on a man's property arose from some actor de- faul for which he was answeeable has no. application in Malaysia and has no application thereat least since the coming into force of the Givil Law Ordinance 1956, s. 3, The reason is that having been displaced by statute, frst by 6 Anne, ©. 31, s. 6 and lar by the Fires Prevention (Metropolis) Acc 1774, 14 Geo. 8.€. 78, 2.86, the resumption formed no part of the common law of England as administered in England at that date, Upon the appellants lay the burden of proof ss fo both negligence and nuisance, "1 ‘an immediate difficulty arses: i the common law has been repealed ‘atecuell om Interpretation of Staats (LIE BS. by Wik and Gain) (1960), pense Sitgs91 ante y. Sra, aloe deits it ca ntenil See Babar op 81 ape ‘fap a9 ts. 6.7 "capo 2a). 45, ie, p46.pwc Reception of English Law 4s by 4 statute before 1956, then what law is applicable in Malaysia? 1 cannot be che pre-1774 common law for thr lave formed no part af the fomnon Taw on the 7th day of April L956. Ifthe Frivy Couneil did not apply the common la, then what law did ie invoke to impose the burden {of proof on the plant as co both negligence and nuisance? By imposing ‘the burden of proot on the plaiscif, i is submitted, all the cour did was simply iavoke the pervasive principle that a plaintiff must always prove his case. “Lie is of the mature of ehings thar the ourden of proving negligence should be the plaincf’s."!? Buc in the absence of such a general common tw principe, what rule applies in Malaysia when che omnmon las has been abcopucd in England by astute? Ic dose not {all within section (1) or any ocher sections."* then there appears £9 be ‘lacuna in the la. This isnot & unique situation inthe Malaysian context. Ik aay be suggested thag the Law Revision Commisigner, whose terms of seference ate not limited 10 English models, form a eommitee ro invest- sate ways of closing such gaps, possibly by drawing on examples from ‘other egal systems! # Under tte terms of the Revised Act (1972), Profesor Bartholomew's view becomes cren more difficult to justify. Secon 3(1)(a) deals with West Malaysia only and it refers to“... the common law of Fngland and the rules of equity..." as being applicable there; whereas section 31)(b) sad (c) which apply to Sabah and Sarawak respectively, refer 0. the common law of England and the rales of equity, togerber wich statutes of general epplicasion....""® The conchsion appears inescapable that the Degislatace, by deliberately including che word “‘scarutes” in sections 3(4}b) and 5(1)(€) while retaining the words “common law ...and rules of equity” in 3(1), perceived a distinction bewween the wo heads. ‘An alternative argument in support of this position is that to admit English statutes under section 3¢1)a) would be to render many of the Provisions in the Civil Law Act 1956 redundant. The Act incorporates & umber of English statutory provisions'? which would have been un: necessary if s. 3(iMa) had been intended to admit of statutes. Most limporcanily, section (1) of the Act would also be made redundant. "eee Mackenne Jia Aton v Legy Auto Pers (3967] 2 AIL. 62, 67. See inf, 6. "see or example, Ahmad ieshitn, “The Ct] Law Ordinance in Malesia” [1971] 2M]... oe example: 6 262) and 5. 26(4) ofthe Civil Law Act, 1956 enacees, af the Eniink Gaming Act 1845 ards. 1 of the English Gaming Acc 1892, sepecthely, 515 and 16 enact the Engle Law Refoers(Hrotrated Contracts) Ac 1943) 5:12 ‘chac the Roglsh Law 1eform (Contebutory Negligence) Act 1945,46 JJermal Undeng-Undang ural Section (1) provides: “tn all questions or iksues which erse or whish have to be decid in whe States of West Malaysia other than Malacca and Penang with respect to the Law of parnetships, corporations, banks and banking, principals and agents, ears by ala and sea maine insurance, average, fe insurance, aad with zespeet co mercantile lw geneally, the law (© he adminstered shall be the same 3% would be administered in England ia the like cate a the date of the coming into force af this Act, such question or iss had aizen or had 0 be decided in England, unles i eny cae other provision iso shall bbe mace by any writen lw.” Yrofesior Bartholomew, having submiced that section 3(1) of the Ord nance shoold admit of satutes was then obliged te stretch his view «> its inevitable conclusion, that section 5(1) is redundant. He concluded “thar in the Malay Sestes section 5(1) of the Ciil Law Ordinance is redundant on tte ground that che fa applicable under tha section isthe same as would be applicable under setion 3(1}, namely, the lew of Eng land a t stood on 7th April 1956 subject to local legislation and a loca! circumstances proviso.""* Tris submitted that this contention js untenable. Surely, a more reasonable construction of the staruce would be to teed it a9 a whole and to avoid redundancy as for as possible. As Lon Greene remarked," “L need not cite authaigy for dhe proposition tha pias face every word in an Act of Farinment must be giver an efective meaning of ize own. Whether cr not the legislature im any given cate has con- descended zo tautology is curation che answer to which depends on ‘he language used, but, inthe abscoee of an appropriatc context, one sarwtory provision which is expressed in entitely different language {om anothor, whether i the same a a diferent section, is or to be inweroreted as eoetiive or unnecessary.” ‘The wordings of section $(1Na) and section 5(L) are quite distinct. ty section 3(1NG) the law applicable ie "..che common law of England and the rules of equiy...”. Section (1) maintains “...the law to be administered shall be the sume as would be administered in England in the like case, ..”. The fact that the leislarore employed Jifferent terminology in each section clealy indicates chat the meaning fof each one i different. It is apparent that section 342) allows the importation of statutes? and equally apparent that section 3(2%a) was sot intended o have ach an effec. Mop ctw 4.p.32. "9 putt, Wiiar Parh Lane) Led (1949) 2 ANDER. 482, 4648; Pe Low Nei Brothors {39491 1 NMJ. 274. Gil Gat he then wes) eld thee sReception of English Line o yc imily, under the Civil Law Ordinance, 1956 section 5(1) allows che reception of Bnglish statutes passed at che date of coming into foree ofthe Gndinance, ic. the 6th of April, 1985, When the Ordinance was revised fd became the Civil Law Act 1972, the date appointed for coming in occe was Ist April 1972, Section 19(2) of the Revision of Laws Act. 1968 provides “om and after the date from which a revised law somes into foree, such revised law shall be deemed to be and shall be without any ‘question whatsoever in all courts and fora purposes whacsoever the goleand only proper law in respect of matters inchided therein and in force on that date.” whereas section (1) of the Revised Ace specially mensions the sic 7th day of April, 1986”, section 5(1) continues to provide that +1 aie law tobe administered shall be the same as would be administered in England in the like case at tbe date of the coming seo force of this, ‘av, of wich question or issue had arisen or had to be decided in England... "?" Could fe be takem to meso that the new dateline under sections (1) of the Revised Act is tst April 1972, with the result that English starutes passed after 7th April 1956 are now law in West Malaysia? “The answer is uncertain for immediately following the preamble to the [Act evo dates are mentioned in square brackets: "[West Malaysia — 7h ‘April 1956: Bast Malaysia ~ 4st April 19721” The preferable view is that the new date applies only to East Malaysia and the position in West ‘Malaysia remains unchanged? Joseph Chia” 31502) of se ingsh Companies Act 1947 was appllable ip Wes: Mays as beng Pat of the mercantile lam See also Ngo Bee Chem v. Chis Face Kim (1912) 2 MC. 25, which subsequently het been erteved on another ground empasis aves section (1) specially exces Males and Penang roa is ait, Aeinant Lecter, Faculty of Lam, University of Malaya, The writer withes to bank Me Vga Shnradura, LLML(S pore), for some useful soggesions,