UNWRITTEN LAW Law that is not enacted by Parliament and State Assembly. The unwritten law that exist in Malaysia include English Law, Judicial Precedent and Customary Laws.

ENGLISH LAW The application of English Law is based on the Civil Law Act 1956 English Common Law & Equity; English Commercial Law and English Land Law

TO WHAT EXTEND DOES ENGLISH LAW APPLIES IN MALAYSIA? THE ISSUE: TO WHAT EXTEND DOES ENGLISH LAW APPLIES IN MALAYSIA? CIVIL LAW ACT 1956

English Common Law & Equity Section 3(1)(a) of CLA 1956- Court shall apply in West Malaysia, English Common Law & Equity as administered in England on the 7th day of April 1956. Section 3(1)(b) of CLA 1956- In Sabah, apply the English Common Law & Equity together with statues of general application as administered in England on the 1st day of December 1951. Section 3(1)(c) of CLA 1956- In Sarawak, apply the English Common Law & Equity with statues of general application as administered in England on the 12th day of December 1949.

Debates upon the application of English Common Law & Equity It is not binding- Mokhtar v. Arumugam Applies only in the absence of local statutes on the particular subjects- Halijah v. Morad & Ors Only English which is situated to local circumstances will be applied- H G Warren v. Tay Say Geok & Ors Lord Hodson: “...such law and rules shall be applied so far only as the circumstances of the states comprised in the Federal and their respective inhabitants permit and subject to such qualification as local circumstances render necessary.”

English Commercial Law Section 5(1) of CLA 1956- Apply English Commercial Law in West Malaysia (except Malacca & Penang) as administered in England on 7th April 1956 Section 5(2) of CLA 1956- Apply English Commercial Law in Penang, Malacca, Sabah & Sarawak as administered in England in the like of corresponding period, if such question or issue had arisen or had to be decided in England unless in any case other provision is or shall be made by any written law.

English Land Law Section 6 of CLA 1956- Not applicable in Malaysia. Have National Land Code “The National Land Code is a complete and comprehensive code of law governing the tenure of land in Malaysia...” [United Malayan Banking Corp. Bhd. v. Pemungut Hasil Tanah, Kota Tinggi]

JUDICIAL PRECEDENT Decisions made by judges to be adopted in similar situations or circumstances at a future date. Also known as stare decisis which means stand by cases already decided i.e. the previous decisions must be followed. Must differentiate between ratio decidendi and obiter dictum

The application of judicial precedent Explained in PP v. Datuk Tan Cheng Swee & Anor affirmed in Mah Kah Yew v. PP “...Federal Court accepted unreservedly and which it had expected High Court and other inferior court (lower court) in the common law system such as Malaysia to follow similarly” [emphasize added] Chang Min Tat, FJ

The Application of Judicial Precedent in Hierarchy of Courts in Malaysia Superior Courts Horizontal relationship Vertical relationship Subordinate Courts [1995 until today]

Types of Precedents Original Precedent Declaratory Precedent Explanation Original Precedent Declaratory Precedent Distinguish Precedent Newly made precedent. Applying the existing rules. Did not apply earlier precedent because of some differences on the fact of the case.

WHEN TO DISTINGUISH A PRECEDENT? Young v. Bristol Aeroplane Co. Ltd. (1944) affirmed in Re Lee Gee Chong (deceased)

CUSTOMARY LAWS Based on customs which are accepted as binding. Legal consequences: therefore, if there is breach of this law will lead to legal sanction. It is also known as personal law as it applies on the specific group e.g. Chinese customary law only applies to the Chinese. Malay customary laws, Chinese customary laws, Indian customary laws, Orang Asli customary laws and Native customary laws (Sabah/Sarawak).

MALAY CUSTOMARY LAWS APPLY TO MALAYS ADAT PERPATIH ADAT TEMENGGUNG Negeri Sembilan Concept: democratic The law is made orally Examples:- Perbilangan Kata adat Dato’ Mentri Othman bin Baginda v. Dato’ Ombi Syed bin Syed Idrus: There is Dewan Keadilan Undang-Undang, the adat constitutional body under Constitution of Negeri Sembilan to settle adat dispute. The rest of Peninsula Malaysia Concept: aristocratic & autocratic The law is made in writing and the rules made by rulers. If broken means against the rulers. Examples inter alia:- Undang-undang Melaka 99 laws of Perak Laton v. Ramah: if husband or wife died, property is divided equally between survivors and heirs of the deceased.

CHINESE CUSTOMARY LAW Originating from Ching but modified mix English Law and Chinese customs. Chinese practice of polygamous unions BUT has been abolished and replaced by the Law Reform (Marriage & Divorce) Act 1976. The new law does not allow polygamous marriage and all marriage must be solemnized by register with consent mutually (Ong Cheng Neo v. Yeop Cheah Neo). However, can still celebrate marriage as per custom (R v. William).

HINDU CUSTOMARY LAW Adaption from India BUT not necessarily the same as in India provided it is not contradict to justice and general public policy. Examples of areas of law:- Money lending contracts The joint family property The law of marriage and divorce of Hindus are impossible to apply to them due to intolerable consequences (Choa Choon Neo v. Spottiswoode) but religious marriage ceremony is valid (R v. William).