Specific Application of English Law: Section 5 CLA 1956 in Malaysia
3.1.2 Specific Application of English Law(common law and rules of equity)
The specific application of English law is under the section 5 CLA 1956 which provides for the application of English law in commercial matters in Malaysia as a whole, differs in its applicability to the former Malay States with Penang, Malacca, Sabah, and Sarawak. In the event of non-availability of any local statues, governing a particular commercial matter to fill in the vacuum provides as subsection (1) and (2) in the section 5 of the Civil Law Act 1956.
Subsection (1) applies to the states of West Malaysia which corresponds to the former Federated and Unfederated Malay States, while Subsection (2) applies to the former Strait Settlement colonies of Penang and Malacca, and also the Borneo States of Sabah and Sarawak. The difference between the two subsection is not limited for absolute application, but there is also an important substantive difference in that under subsection (1) for the states of west Malaysia other than Penang and Malacca, the law to be administered in England in the like case ‘at the date of the coming into force of this Act’. However, under subsection (2) for Penang, Malacca, Sabah and Sarawak, the law to be administered is the same as would be administered in England in the like cases ‘at the corresponding period’. Therefore there is a cut-off date for the application of English law in commercial matters to the States of West Malaysia other than Penang and Malacca. The cut-off date was 7 April1956 which was the date of the coming into force of the Civil Law Act 1956. For Penang, Malacca and East Malaysia there is no cut-off date. It would appear, therefore, that statue has provided for the continuing reception of English law in mercantile matters for Penang, Malacca, Sabah and Sarawak, whereas for the other Malaysian States, there is no such continuous reception.
However Malaysian judges seldom refer to the provisions and their implications when they make
The specific application of English law is under the section 5 CLA 1956 which provides for the application of English law in commercial matters in Malaysia as a whole, differs in its applicability to the former Malay States with Penang, Malacca, Sabah, and Sarawak. In the event of non-availability of any local statues, governing a particular commercial matter to fill in the vacuum provides as subsection (1) and (2) in the section 5 of the Civil Law Act 1956.
Subsection (1) applies to the states of West Malaysia which corresponds to the former Federated and Unfederated Malay States, while Subsection (2) applies to the former Strait Settlement colonies of Penang and Malacca, and also the Borneo States of Sabah and Sarawak. The difference between the two subsection is not limited for absolute application, but there is also an important substantive difference in that under subsection (1) for the states of west Malaysia other than Penang and Malacca, the law to be administered in England in the like case ‘at the date of the coming into force of this Act’. However, under subsection (2) for Penang, Malacca, Sabah and Sarawak, the law to be administered is the same as would be administered in England in the like cases ‘at the corresponding period’. Therefore there is a cut-off date for the application of English law in commercial matters to the States of West Malaysia other than Penang and Malacca. The cut-off date was 7 April1956 which was the date of the coming into force of the Civil Law Act 1956. For Penang, Malacca and East Malaysia there is no cut-off date. It would appear, therefore, that statue has provided for the continuing reception of English law in mercantile matters for Penang, Malacca, Sabah and Sarawak, whereas for the other Malaysian States, there is no such continuous reception.
However Malaysian judges seldom refer to the provisions and their implications when they make