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An Analysis of the Role of Equity, Common Law and Statutory Rules in Aircraft Secured Transactions Law in Malaysia

Federal Constitution 1957

Malaysia comprises the States of Peninsular Malaysia and East Malaysia which in turn comprises the States of Sabah and Sarawak. Treaty ratification is the prerogative of the Federal Government under Article 76(1) of the Federal Constitution and not state governments.

Malaysia was a former British colony and upon independence on 31 August 1957, had a rich legacy of the rules of English equity supplanting the legal rules, both statutory and judge-made law where the latter is referred to as “common law” and in cases of conflict between the common law and equitable rules, equitable rules prevail. This body of equitable rules has over the years been enriched by the local courts in Malaysia too.

The Cape Town Convention and the Aircraft Protocol have not generated any reported litigation that have gone before the local courts in Malaysia. Both treaties have been implemented domestically and it is to these legislative aspects that we now turn to see the implications of the treaties before and after ratification by Malaysia in the law of secured transactions for aircraft in Malaysia.

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