Unwritten Law in Malaysia

Unwritten laws are laws that are not enacted and not found in any constitution. It comprises of English law (Common Law and Equity), judicial decisions and customs. Common Law is a major part of many States, especially Commonwealth countries. It is mainly made up of non –statutory laws, which are the precedents derived from judgments given on real cases by judges. Law of Equity resolves disputes between persons by referring top principles of fairness, equality and justness. In these cases,nothing was done against the law by the parties to dispute, but their rights are in conflict. Thus, it is different from law,both the Statutory Law enacted by Parliament and State Legislatives and Common Law which consists of precedents and opinions given on real cases by judges. In situations where there is no law governing a particular circumstance, Malaysian case law may apply. If there is no Malaysian case law, English case law can be applied. There are instances where Australian, Indian,and Singaporean cases are used as persuasive authorities.
Section 3(1)(a) Civil Law Act 1956 states that courts in Peninsular Malaysia should apply Common Law and the Law of Equity as administered in England on 7th April1956.Section 3(1)(b) and Section 3(1)(c) of Civil Law Act 1956 states that courts in Sabah and Sarawak should apply common law and law of equity together with the statutes of general application as administered in England on 1st December 1951 and 12th December 1949 accordingly.But it is not stated that the Common Law and Law of Equity in Malaysia should remain unmodified and follow the same law as administered in England.Common law and law of equity in Malaysia should be developed and amended according to the local needs. In addition, these two laws should also take into account of changes in these laws in England.However, Malaysian government can set their own scope for the amended or repealed Common Law and Law of Equity in Malaysia.
In the case, Commonwealth of Australia