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23 B. L. J. 9 (1991)
The Influence of Common Law on the Development of the Law in Malaysia

handle is hein.journals/braclj23 and id is 9 raw text is: THE INFLUENCE OF COMMON LAW
Dato Abdul Malek Ahmad,
Judge of the High Court of Ipoh, Malaysia
Malaysia attained independence on the 31st August 1957 and has been before that date and is more
so today known internationally as an economically stable and peaceful country despite its racial, religious
and cultural diversities quite unparalleled by any other nation with a similar backdrop. With the increase
in foreign investment and local business activity, there is bound to be an upsurge in litigation on the per-
sonal and commercial front and it is in this scenario of things that this article hopes to examine the
influence, if any, of the common law on the development of the law in Malaysia.
Common law is in essence the legal system propounded from precedent and principles in England
as emphasised and enunciated over the years by the courts in England and upon which the courts all over
the Commonwealth had depended in the past. This dependence, however, appears to be diminishing as
with the attainment of independence, the courts in the affected nations are turning more to the legislation
enacted in their own countries. It is not uncommon, nevertheless, to discover that a substantial part of the
local legislation had in fact been copies or borrowed from the English statutes. In the process, there are
bound to be many similarities in the evolvement of the common law in these countries although at the
same time, since the English authorities are now less likely referred to as being overriding, binding or at
the least persuasive, it has also resulted in some differences as well. As for Malaysia, reference has apart
from England been also made to judicial decisions in other Commonwealth countries namely Australia,
Canada, India and New Zealand.
The situation is best summed up by the Malaysian King, His Royal Highness the Yang di-Pertuan
Agong Sultan Azlan Shah, who had reached the peak of his judicial career and had retired as Lord Presi-
dent of the then Federal Court of Malaysia before assuming his royal office as Sultan of Perak in 1984
and before being elected the Malaysian King from April 1988 for a term of five years, in his speech at a
dinner for engineers in 1989:
Whilst it may be true to say that in the early days of the development of Malaysian law,
reliance was placed, by virtue of the Civil Law Act, on English law, this is no longer the
position. When the Civil Law Act was first introduced in 1878 to the Straits Settlements, the
courts were then compelled in some situations to rely on the English law as there was no
local law applicable on that particular aspect of the law. Even then, the English law was not
applied in toto. English law was relevant only to the extent that it was made subject to
modifications and adoption to suit local conditions. Once applied through this process, it
became Malaysian law. Therefore, over the past hundred years or so, through the judicial
process, almost every branch of the law in Malaysia was developed. In some areas, legisla-
tion was introduced.
In the light of the above, it may now be said that section 3 and 5 of the Civil Law Act
are of limited application. As pointed out earlier, many aspects of Malaysian law which
remained unwritten are regarded as the Malaysian common law and not the English common
law. It may be similar to English law, but the important point to bear in mind is that it is
Malaysian law and not English law which is applicable. This is also the position in all the
other countries whose legal systems are based on the common law. Though they share a
common heritage, that is their legal systems were similar to the English legal system, it can-
not be said that English law continues to apply in these countries. In the United States,

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