Common Law

Question A- states the similarities and differences between legislation and subsidiary legislation.

What is legislation?

Legislation knows as statutory law which is has been enacted or promulgated by any kind of governing body or even parliament. It refers to a single law or even a group body of enacted law. In the history, it is called as “bill” which is more often than not projected by a member of the legislature. Examples of legislation are Statutes or Acts of Parliament, Ordinance and Enactments. And the best example of legislation that congress the passed is Civil Rights Act of 1964 and Voting Rights Act of 1965

Meanwhile, what is subsidiary legislation? A subsidiary legislation is any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Ordinance, Enactment or other lawful authority and having legislative effect. It is enacted by persons or bodies to whom the power to make the subsidiary legislation is delegated. Such persons or bodies may include the Yang di-Pertuan Agong, ministers, and local government authorities. Examples of subsidiary legislation are Rules and Regulations and By-laws.

In other words, legislation may be defined as law legislated by Parliament at federal level and by the various State legislative Assemblies at state level. On the other hand, the Interpretation Act 1967 defines subsidiary legislation as any ‘proclamation, rule, regulation, order, notification, by-law or other instrument made under any Ordinance, Enactment or other lawful authority and having legislative effect.

So what are the differences and similarities between legislation and subsidiary legislation?

Legislation are laws enacted by Parliament and State Assemblies whilst subsidiary legislation are laws made by persons or bodies under powers conferred on them by Acts of Parliament or State Assemblies. Legislation is important as it is law enacted by the legislature whilst subsidiary legislation deals with the details which govern everyday matters which the legislature has delegated for them to do so. Both are important sources of law in Malaysia but legislation has greater impact and force than subsidiary legislation.

The similarities between ‘legislation’ and subsidiary legislation’ are that both are written law. Both of them must not contravene its principal or parent Act or the Constitution. Otherwise, it will be void. In the same time, both of them are subject to the FC and not supreme which is made by parliament and have the legislative effects.

Why is legislation important in law? Legislation is important because they make and amend laws; they also debate on issues concerning national interest.

Question 2- does the common law of England apply in Malaysia? Give reasons for your answer.

Yes. The common law of England applies in Malaysia. The following is my answer to the question. First of all, Common law, also known as case law, or precedent, is law developed by judges through decisions of courts. A "common law system" is a legal system that gives great preferential weight to common law, on the principle that it is unfair to treat similar facts differently on different occasions.

The body of precedent is called "common law" and it binds future decisions. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, judges have the authority and duty to make law by creating precedent.

Thereafter, the new decision becomes precedent, and will bind future courts. In practice, common law systems are considerably more complicated than the idealized system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction but decisions of lower courts are only non-binding persuasive authority. So, this is a briefing of common law but does the common law apply in Malaysia?

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.

The application of common law is specified in the statutes. In 2007, according to the Chief Justice of Malaysia, Ahmad Fairuz Abdul Halim, he mentioned that English common law despite Malaysia having already been independent for 50 years and proposed to replace it with Islamic law jurisprudence. However, the Malaysian Bar Council responded by saying that the common law is part of Malaysian legal system. Court appeals to the Privy Council in England have already been abolished in 1985. In short, the common law of England is not applicable if it does not suit the circumstances of the Malaysian people.

There have 2 limitation of the application of the common law: First, it is applied only in the absence of the local statues on the particular subject concerned. English law serves to fill in the lacuna in the Malaysian legal system. Second, only the part of the English law that is suited to local circumstance will be applied. Thus, it provided the local section 3(1) civil law Act 1956.

In common law, there have a act -local section 3(1) civil law act which is provides for the general application of English Law. In short, section 3(1) provides that in the absence of written law, the courts in Malaysia shall apply the common law and rules of equity existing in England on 7 April 1956 in West Malaysia; 1 December 1951, in Sabah; and 12 December 1949, in Sarawak.

Subsections (1) (b) and (1) (c) of section 3 imported English statutes of general application into Sabah and Sarawak, respectively. The difference in wording between these subsections on the one hand and subsection (1) (a) on the other hand perpetuated a controversy which earlier arose from section 3(1) CLO 1956. Are English statutes of general application applicable in West Malaysia? There have two views, each as cogent as the other, exist:

Professor Bortholomew, writing on section 3(1) CLO 1956, holds that such English statutes are applicable. – Joseph Chia, in discussing the corresponding provision in the CLA 1956, expresses a contrary opinion. Judicial opinion supports the latter. These all are proved that the common law in England is applied in Malaysia. There have the case to use common law in Malaysia: Syarikat Batu Sinar and UMBC finance Bhd:

A leasing company (second plaintiff) had bought a tractor from a tractor dealer (the third defendant), and then leased it to the first plaintiff, a finance company. In the registration card, the dealer was stated to be the registered first owner, the leasing company is the second owner and the third owner was the finance company. The card carried an endorsement to the effect that the right of ownership was claimed by the leasing company. But, the dealer had earlier (in February 1984) sold the tractor to another finance company who then hired it to the second defendant pursuant to a hire-purchase agreement.

The finance company purported to repossess the tractor following default by the second defendant in making the payments due under the agreement. At the time that the finance company bought the tractor from the dealer, there was no registration card for the tractor. An application was made through the dealer for the issue of the registration card by the Registrar and Inspector of Motor Vehicles. The finance company also made a claim to ownership in the form of a letter sent to the dealer for registration with the registrar. The registration card was left with the dealer. Possession of the tractor too was left with the dealer. So, the plaintiff decides to sue the defendant.

Now under our Civil Law Act 1956, s 3(1) (a) and (2), the court gave judgment to Supreme (second plaintiff) and other persons claiming through it, via the other plaintiffs with costs. The only regret the court had had to give judgment against counsel who had prepared his case so exceptionally well.


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