Q: Discuss the reception of English law in Malaysia. The Federal Constitution of Malaysia was drafted during the nation`s childbirth pains in 1957 and provides the framework for Malaysia`s modern legal system. The Federation of Malaysia emerged from British colonialism and gained independence on August 31, 1957, and six years later, the Bornean states of Sabah and Sarawak and Singapore united to form the new nation of Malaysia. Singapore left Malaysia in 1965 to become its own sovereign nation, and today`s Federation of Malaysia includes the peninsula, Sabah and Sarawak. Malaysia was born in a climate of multicultural compromise as a constitutional monarchy governed by secular laws. Islam is recognized as the religion of the Federation in accordance with article 3, paragraph 1, of the Federal Constitution, “but other religions may be practised in peace and harmony in any part of the Federation”. Prior to the introduction of the Royal Charter of Justice in 1807, the laws used to regulate the rules of conduct within Penang society were local customs and laws. However, many complaints and petitions were made by the population to British administrators about the unfairness of the laws in force and the need to introduce a better legal system, which then led to the introduction by British administrators of the Royal Charter of Justice in 1807, which contains the English law used in England. English Charter law or also known as common law refers to laws made by judges through court decisions, and it is applied by the doctrine of jurisprudence, which will bind future decisions made by lower courts.
Section 3 of the Interpretation Acts 948 and 1967, on the other hand, defined the common law as the common law of England. This law was introduced by the British through the Three Charters of Justice applied in the Straits colony, which includes Penang, Malacca and Singapore. The first charter, the Royal Charter of Justice of 1807, first introduced in Penang, can be considered the most important event in Malaysian legal history, as it marked the beginning of the application of English law in Malaysia. The British colonial period played a very important role in the formation of Malaysia`s current legal system. They brought together their constitutional government and the legal system they used in England, known as English law or the common law system at the time of their colonization. English law then remains one of the most important sources of law in Malaysia, even after the end of the colonial period, as the Malaysian laws used today were mainly enacted on the basis of this particular law. The Malaysian judicial system is based on the British legal system familiar to those of common law jurisdictions, but it also contains distinct 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 on its own internal dynamics with the various judicial systems. The external aspect is its relationship with the other two branches of government, that is, 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. However, the application of English law by the Royal Charter of Justice to Penang in 1807 was not compulsory, as it was stipulated in the Charter that English law was to be exercised to the extent permitted and consented to by religions, customs, and local populations. Therefore, English law is considered a convincing authority in which it does not necessarily have to be applied, but is very influential.
This persuasive force is still relevant to the regulation of Malaysia`s current laws, as although English law is not written into the laws governing the country, many laws enacted by Parliament and legislators were based on English law. The Federal Constitution of Malaysia itself has been structured on the basis of common law values, demonstrating the strong influence of English law on Malaysian law. Section 3 (1) (a) of the Civil Law Act 1956 provides that the Court of West Malaysia shall apply English common law and equity as applied in England on 7 April 1956. This means that only English law used in England on 7 April 1956 can be applied in West Malaysia and that the development of English law cannot be applied after that date 1. The sources of unwritten law in the Malaysian legal system are: What remedies are available to the innocent party.docx. established the Court to exercise jurisdiction in all civil and criminal cases in Penang. One. Sections 3 and 5 of the English Law Reception Act 1956.
English law can still be applied and is relevant to the trial process of a case if the conditions to which it is subject are met. These conditions, set out in sections 3 and 5 of the Civil Law Act 1956, are that it must correspond to local conditions and that there are ambiguities or omissions in the laws in force in Malaysia. If both conditions are met, English law may be applied to the present case. Tew, Yvonne, “The Malaysian Legal System: A Tale of Two Courts” (2011). Georgetown Law School publications and other works. 1922. scholarship.law.georgetown.edu/facpub/1922 The application of English law in the Malay states, however, began when British residents and councillors intervened in the administration of the Malay sultans, who were the principal rulers of the Malay states. With the introduction of the residential system in Perak, the Malay sultans were forced to establish the courts in the English style, and English judges were appointed.
As for the States of Borneo, they were informally introduced into English law when they became British protectorates in 1888. English law was subsequently formally incorporated into the legislation of three statutes, namely the Civil Law Ordinance for Peninsular Malaysia 1956, the Law Administration Ordinance for Sabah 1951 and the Sarawak Law Enforcement Ordinance 1949. These three Acts are now incorporated into the Civil Law Act 1956. The laws in force in Malaysia can be divided into two categories, written law and unwritten law. Written laws refer to laws enacted by parliament that have legislative powers in Malaysia. It includes the Federal Constitution of Malaysia, federal law and national law. Unwritten laws, on the other hand, refer to laws that are not promulgated by the legislature and are not enshrined in any law. Unwritten laws in Malaysia can be divided into English law or common law, syariah, common law and precedent.