MALAYSIAN LEGAL SYSTEM 1 (LAW431)

ASSIGNMENT I

PREPARED BY:
SHAFAATUL UZMA BINTI IDROS (2015741331)

PROGRAMME:
LW213 - BACHELOR OF LEGAL STUDIES (HONS)

GROUP:
NLWIK1AX

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 ResidentGeneral, 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.

Application of English law only if not provided by our written law

In the case of Dato Seri Anwar Ibrahim v PP [2010] 7 CLJ 397 the court said once there is written law in
Malaysia on that matter, English common law and the rules of equity are excluded from our law.
Application of English law only at tis effective date
Only English common law and rules of equity administered in England on 7 April 1956 can be applied to
fill in the lacuna in the law. Only English common law and rules of equity together with statues of general
application administered in England on 1 December 1951 (Sabah) or 12 December 1949 (Sarawak) can
be applied to fill in the lacuna in the law. In the case of Lee Kee Chong v Empat Nombor Ekor, the court
held that when referring to English common law, the courts are restricted to adopt English law as
administered at its effective date and any subsequent development in England is not binding. Therefore, if
the common law is no longer valid in England, then it becomes inapplicable in Malaysia as well. 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.
The controversial issue in relation to the reception of law is deciding to what extent independent
Malaysian legal systems are bound to follow common law legal principles as defined by English judges.
The first construct will give to Malaysian legal system a certain flexibility to define Malaysian
jurisprudence which conforms to the characteristics of the common law legal tradition but which may
differ in detail. On the other hand, conforming to the idea that Malaysian judges are bound to follow law
as expressed by their English counterparts imports a definite rigidity to Malaysian legal system.