PART B TYPE

1. Describe the effect of the Law Reform (Marriage & Divorce) Act 1976 on the Chinese and Hindu
customary law in Malaysia.
Customary law is the regular pattern of social behaviour which has been accepted by the bulk of
the society as binding upon its members. In Malaysia, there is no customary law of general application.
As an example, Malay customary law only applicable to Malay people. In the past, Chinese customs of
polygamous marriage raised a potential conflict between Chinese customary law and the modern civil
law. However, Chinese and Hindu customary laws on marriage and divorce have diminished relevance
since the coming into force of Law Reform (Marriage & Divorce) Act 1976 on 1 March 1982.
The coming into force of the new legislation has several effects. First is polygamous marriage
among the Chinese people is abolished. There is no more practice of polygamous marriage among this
people since section 5 of this Act introduced monogamy to all people specifically to Hindu and Chinese
community. This practice forbids the people to marry another person if he is already married. All
marriage taking place on or after 1 March 1982 must be monogamous. According to section 494 of CPC,
practice of polygamous is punishable offence up to 7 years imprisonment.
The second effect of polygamous marriage is there is a practice of a common system of
solemnization and compulsory registration. The coming into force of this act on 1 March 1976 require a
registration of the marriage for every single marriage and if the marriage made before the law coming
into force as illustrated under section 33. Registration is not compulsory and the marriage is still valid if
it follows the customary practice of its community. Under section 34, it is stated that nothing in this Act
shall be construed to be render valid or invalid any marriage; merely by reason of it is not having been
registered. In the case of Leong Wee Sing v Chai Siew Yin, the issue is whether the non register marriage
is valid or not and it was held that by virtue of section 33 and 34 is clear to show that non register
marriage shall not be void.
The third effect of the LR (M&D) Act is it provides uniformity in law. The force of Law Reform
(Marriage v Divorce Act) Act provides a uniform law to govern the matters on divorce, marriage and
ancillary and it only govern the Chinese and Hindu and not Muslim since Muslim is governed by Syariah
Law. The new law is certain since it provide the same law and order for all marriage constructed by
Hindu and Chinese and it avoid conflict of law and involving the question of what law should be use and
apply by the court. It would be easy for the court in settle the dispute.
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2. With reference to the CLA 1956 and decided cases, explain the conditions for the application of
English law in Malaysia.
According to section 160 (2) of Federal Constitution, under the definition of law, it includes
common law. Common law here refers to common law of England and rules of equity and in prescribed
circumstances, English statute of general application as illustrated in sec 3 Civil Law Act 1956. Common
law means the body of rules developed by the old common law courts and equity is the body of rules
developed first by the Lord Chancellor and later on made by Court of Chancery. Equity came into being
the supplement of common law to correct its defects and mitigate its harshness.
Under section 3 (1) of CLA 1956, the Malaysian Court shall, in the absence of local law, apply the
common law of England and the rules of equity, as administered in England on 7 April 1956 in West
Malaysia, 1 December 1951 in Sabah and 12 December 1949 in Sarawak as illustrated in case of Lee Kee
Choong v Empat Nombor Ekor. In this case, the Court affirmed that any subsequent march in English law
in England would not be embodied in local legislation after the cut-off dates. The court also held that
their Lordships should not consider the developments in English law after 1956. Subsections 1(b) and
1(c) of sec 3 import English statutes of general application into Sabah and Sarawak respectively.
However, in practice the Courts may follow developments in English common law after such
dates. English decision made after such dates, though not binding, are persuasive as illustrated in the
Privy Council decision in Jamil Harun v Yang Kamsiah. In this case, it was held that it is correct for the
Malaysian court to decide and refers to English case law, since it is persuasive in nature. This practice
has allowed for continuing reception of English law in Malaysia.
More than that, there are two other conditions for the application of English law apart from cut-
off dates. First is there is lacuna in local law. This qualification is contained in the opening proviso of this
section. This proviso is merely the statutory recognition to the application of English law to fill the
lacunae of loopholes in our local law. In the case of AG Malaysia v Manjeet Singh, where the court held
that in the absence of any specific local legislation concerning contempt of court, the common law shall
be applied under sec 3 CLA 1956.
The next condition for the application of English law in Malaysia is suitability to the local
circumstances. English law is applicable to the extent permitted by local circumstances and inhabitants,
subject to qualifications necessitated by local circumstances. This can be seen in the case of UMBC v
Syarikat Batu Sinar where the court held that the English that would like to be applied in Malaysia must
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3. be suitable with the local circumstances or local inhabitants. The judge also added that we should
develop our own common law by directing our mind to the local circumstances and local inhabitants.
Under section 5 of this Act, it provides the application of English law in commercial matters. In
section 5 (1), for the questions arise which have to be decided in West Malaysia other than Penang and
Melaka, the law that shall be applied on commercial matters shall be the same as administered in
England in the like case at the date of this Act coming into force. In subsection (2), for the questions
arise which have to be decided in Malacca, Penang, Sabah and Sarawak, the law that shall be applied on
commercial matters shall be the same as administered in England in the like case at corresponding
period.
The different terminology used by sec 5 compared to sec 3 shows that sec 5 introduces the
whole of English law including statutes, which means, greater reception of English law on commercial
matters. More than that, the different wording between subsections (1) and (2) of section 5 means that
there is difference in the extent of which English law is applicable between the previously established
places. Theoretically, in commercial matters, there is a continuing reception of English law in the four
states while for the other states the reception stops at the cut-off dates.
Even though under section 5, it provides reception of English law for commercial matters,
section 6 expressly excludes the application in Malaysia of the English law concerning land tenure. This
section was enacted because it intended to prevent the wholesale application of English law under
section 3 (1) to land matters in Malaysia since there already local legislation concerning land matters.
Explain the qualification of sec 3 (1) of CLA 1956 on the cut-off dates and the application of the
statutes of general application to West Malaysia.
According to section 3 of CLA 1956, English law means ‘the common law of England’ and the
rules of equity, and, in prescribed circumstances, English statutes. Under section 3 (1), the Malaysian
Court shall, in the absence of local law, apply the common law of England and the rules of equity, as
administered in England on 7 April 1956 in West Malaysia, 1 December 1951 in Sabah and 12 December
1949 in Sarawak as illustrated in case of Lee Kee Choong v Empat Nombor Ekor. In this case, the Court
affirmed that any subsequent march in English law in England would not be embodied in local legislation
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4. after the cut-off dates. Subsections 1(b) and 1(c) of sec 3 import English statutes of general application
into Sabah and Sarawak respectively.
There are two views whether English statutes of general application is applicable in West
Malaysia or not. First view is in favour for allowing the application the statute of general application
supported by Prof G.W. Bartholomew. The rational for the inclusion of statute first is not applying the
English statute means applying an outdated law. Second is applying common law and rules of equity
without statute is the same with applying half of the English law. Third is the definition of the word
common law means the law applicable in England.
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