What Is Common Law in Malaysia

The application of English law or the common law is provided for in the statutes. Article 5 of the Code of Criminal Procedure states that English law applies in cases where no specific legislation has been adopted. Similarly, sections 3 and 5 of the Civil Law in the Civil Law Context Act permit the application of English common law, rules of equity and laws in Malaysian civil cases where no specific law has been enacted. In 2007, Malaysia`s Chief Justice, Ahmad Fairuz Abdul Halim, questioned the need to use English customary law, even though Malaysia has been independent for 50 years, and proposed replacing it with Islamic jurisprudence or Sharia law. However, the Malaysian Bar Council replied that the common law was part of the Malaysian legal system and that it was not a basis for replacing it. Appeals to the Privy Council in England were abolished in 1985. Like any other common law jurisdiction, as Malaysian law is highly dependent on court decisions or case law, a good system of legal relationships is essential. Legal reporting in Malaysia began in the second half of the nineteenth century. Early legislative reports document the decisions of the Straits Settlements Law Reports, 1893-1931; Federated Malay States Law Reports, 1906-1941; Kyshe`s Reports, 1808-1890. Currently, three major legal publishers compete to publish legal opinions.

The Malayan Law Journal (MLJ) is published by Lexis-Nexis Malaysia, the Current Law Journal (CLJ) is published by CLJ, and Sweet and Maxwell publishes the All Malaysia Reports (AMR). CLJ also publishes the Industrial Law Report (ILR) and recently Lexis-Nexis Malaysia has started publishing the Industrial Law Journal (ILJ). [32] Recently, a new player has emerged in the market, namely the Legal Review. They publish the Malaysian Law Review (Courts of Appeal); the Malaysian Law Review (High Court Cases) and the Malaysian Employment Law Review for all labour and employment cases. Even where legislation is provided, problems remain in the application of common law and fairness rules. The question is: Can such legislation be said to be so “comprehensive and complete” that it would replace the application of the common law and the rules of fairness? Many land law cases in Malaysia still apply the rules of justice, arguing that the National Land Code is not “complete and complete” and that there is still room for the importation of English equality rules in certain circumstances. The common law system relies heavily on case law or judicial opinions. In such a system, it is crucial for the administration of justice that “similar cases are treated equally,” otherwise the system becomes a breeding ground for injustice. The Stare decisis, i.e. the maintenance of previous decisions, serves a useful purpose in this regard, since its application would guarantee a certain degree of legal certainty and promote a systematic and logical development of the common law.

However, strict adherence to doctrine could also cripple the development of the common law, especially when it comes to new situations that have never existed before. Thus, while the Federal Court of Justice has expressed that the principle of stare decisis is a “cornerstone of our legal system”[29], it has also recognized that the Court must depart from primacy if a previous decision has been erroneous, uncertain, unjust, outdated or obsolete under modern conditions. [30] Similarly, the current Malaysian High Courts are not bound by previous decisions of the Privy Council, although they may be rendered on appeal by Malaysia. [31] Malaysia`s laws can be divided into two types of laws – written law and unwritten law. Written laws are laws promulgated in the Constitution or in legislation. Unwritten laws are laws that are not contained in any law and can be found in case decisions. This is called common law or jurisprudence. In situations where there is no law governing a particular circumstance, Malaysian case law may apply. If there is no Malaysian jurisdiction, English case law may be applied. There are cases where Australian, Indian and Singaporean cases are used as convincing authorities. The common law will continue to play an important role in the modern Malaysian state, although many new laws have been enacted and many more are in the works.

Many of these new written laws are based on or passed by similar laws in other Commonwealth countries. The role of judges in the interpretation and desired meaning of the written word remains important. [23] Current, The Civil Law Act 1956, sections 3(1) and 5. English common law and the rules of equity apply “to the extent that other provisions have been or may be made by a written law in force in Malaysia” and further “only to the extent permitted by the circumstances of the States of Malaysia and their respective residents and subject to the conditions required by local conditions.” – § 3 (1). The Malaysian judicial system is based on the British legal system, which is familiar to those who are common law, but it also contains different features in the form of Islamic religious courts and two separate high courts for the peninsula and for the states of Borneo. The judiciary in Malaysia can be judged on its external relations with other branches of government as well as its own internal dynamics with the various judicial systems. The external aspect is its relationship with the other two branches of government, namely the executive and the legislative. The internal aspect concerns the relationship between civil courts and religious Sharia courts – a relationship that has raised jurisdictional issues in certain areas such as apostasy. The Sarawak Enforcement Ordinance 1949 applied the ordinary law of England, the rules of equity and English laws of general application to Sarawak, while in Sabah a similar provision existed in the Sabah Enforcement Ordinance 1951. .

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