As regards the legislative power of the Federation and the Länder, Article 74(1) provides that Parliament may legislate on all matters appearing on the federal list [26] or on the competing list of the ninth list. Article 74, paragraph 2, provides that the legislature of a State may enact laws relating to all matters on the list of States or on the competing list of the ninth schedule. [27] Article 75 provides that if a law of the Land is incompatible with a federal law, the federal law prevails and the law of the Land is void to the extent of the incompatibility. In addition, His Lordship also referred to Article 3 of the CLA, which essentially sets the deadline for the receipt of the common law, the rules of equity and the laws of England in Malaysia. 26 As has already been noted, the reference date for receipt of English law in West Malaysia, Sabah and Sarawak (as in the present case) is, under Article 3(1)(a), (b) and (c) of the CAT, 7 April 1956, 1 December 1951 and 12 December 1949 respectively. The Derbyshire principle did not come into force until 1993, i.e. well beyond 12 December 1949, as provided for in the CLA. Abdul Rahman Sebli JCA said: The Federal Constitution defines “law” as written law, common law to the extent that it is in force in the Federation or any part thereof, and any custom or custom having the force of law in the Federation or any part thereof. 1 Since statutory law cannot fully cover all aspects of legal principles, the common law therefore provides guidance in areas not covered by statutory law. The “common law” refers to the law developed by judges by decision of the courts or is also known as judicial law.

Section 3 of the Interpretation Acts 1948 and 1967 defines “common law” as the common law of England. Common law is the oldest legal form and has been derived from English courts for many centuries. The English colonists introduced common law principles to Malaysia and these principles formed the basis of that country`s legal system. The Malaysian legal system and its laws closely follow the principles of English common law and also apply the judgments and decisions of English courts when deciding cases. A more specific endorsement of English law was made by the Civil Law Act 1956 (`the Act`), in which section 3 of that Act provides, inter alia, that English law applicable in Malaysia means common law, equitable rules and certain laws. The same view was taken by Gill AG LP of the Federal Court of Justice in Royal Insurance Group v David,[10] in which the Contract Act 1950 is silent on del credere and English law has therefore been applied. In Che Minah bt Remeli v Pentadbir Tanah, Pejabat Tanah Besut, Terengganu & Ors, 7, Zaleha Zahari JCA stated: “The common law still prevails in this country. It`s always fashionable. Let everyone know that the common law will remain here. In Hong Leong Equipment Sdn Bhd v. Liew Fook Chuan and another appeal, 8 Gopal Sri Ram JCA exercised caution when passing foreign laws, including their decisions.

His Lordship stated: “Whatever the importance of an English or Australian judge, it must not be forgotten that the opinions he expresses are influenced by the needs of the society to which he belongs. We, on the other hand, have to face the needs of a society structured in a very different way, with different requirements based on completely different values. Our courts should therefore take an approach that best suits our own needs and values, respecting the approach of courts in countries whose values may differ from ours on certain issues. The guidelines that should be followed by courts when faced with the question of whether English common law applies under section 3 of the CLA were explained by Abdul Hamid Mohamed J (as he was then) in Nepline Sdn Bhd v Jones Lang Wootton. 9 His Lordship said: The difference between the non-federated Malay states (EMS – Kelantan, Kedah, Perlis, Trengganu and Johore) and the FMS is that these states retained some autonomy over local affairs, but control of foreign affairs and other important aspects of government was in the hands of the British. These states were also administered by the governor of the Straits settlements, who acted as high commissioner of these states. The High Court answered the previous question in the negative, relying on the Derbyshire principle.