Q.
List out the provision which provides the non-application of English Land Law. Why is it so?
Section 6 of the Civil Law Act 1956 expressly excludes the application of English Law (common law and rules of equity) in Malaysia when it is concerning land tenure. Section 6 states that:
"Nothing in this Part shall be taken to introduce into Malaysia or any of the States comprised therein any part of the law of England relating to the tenure or conveyance or assurance of or succession to any immovable property or any estate, right or interest therein."
Section 6 of CLA 1956 was enacted to prevent the wholesale application of English Law under s.3(1) to land matters in Malaysia. Section 3(1) is the subsection which specifies the application of English Law to Malaysia, see below for the detail of Section 3(1).
This was because there already existed local legislation concerning land matters, when the Civil Law Ordinance was enacted in 1956. Such local legislation incorporated the Torrens System in the Federation of Malay States (FMS) and each of the Unfederated Malay States (UMS), and the deeds system (of English land law) in Melaka and Penang.
This part of the law on land matters in fact was more Australian than English. The Torrens System, first introduced in the Malay States in the 2nd half of the 19th century, is based on the Australian system of land administration. It is a system based on registration of land titles, designed to simplicity and certainty. It is considered superior to, and more effective than the English deeds system previously administered in the Straits Settlements. The Torrens System is now the system in force in Penang and Melaka under the National Land Code (Penang and Melaka Titles) Act 1963. The rest of West Malaysia is now under the National Land Code 1965 and in Sarawak (Sarawak Land Code (Cap 81) and Sabah (Land Ordinance (Cap 68) which retains a different non-Torrens system.
"Section 3 of the Civil Law Act 1956 provides:
Application of U.K. common law, rules of equity and certain statutes
3. (1) Save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia, the Court shall—
a) in Peninsular Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on the 7 April 1956;
(b) in Sabah, apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on 1 December 1951;
(c) in Sarawak, apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on 12 December 1949, subject however to sub-paragraph (3)(ii):
Provided always that the said common law, rules of equity and statutes of general application shall be applied so far only as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary."
Ref:
- Wan Arfah Hamzah (2009) A First Look at the Malaysian Legal System. Oxford Fajar. Pg: 136-137.
- Section 3 of the Civil Law Act, 1956, downloaded on 30 Dec, 2013 from http://www.agc.gov.my/Akta/Vol.%202/Act%2067.pdf