The Malaysian Bar

Time to Malaysianise common law system
Tuesday, 18 September 2007 08:13AM

©The Star (Used by permission) IKIM Views by Dr Wan Azhar Wan Ahmad

"For a common law system in our pluralistic society to become manifest, the basis should be Islam, and arguably to a lesser extent, Malay customs." It should be based on ethical, moral and legal values shared by the followers of the major religions.

THE Chief Justice of Malaysia, Tun Ahmad Fairuz Sheikh Abdul Halim, in his opening speech at Ikim's seminar titled Ahmad Ibrahim: His Intellectual Thought and Contributions, expressed his disappointment over the captive mentality of our legal experts, practitioners, judges and lawyers in reference to the high esteem they accorded English law, or to be more specific, English Common Law (ECL). He regretted that despite the nation being independent for 50 years, we still retained, followed and rigidly adhered to s. 3 and 5 of the Civil Law Act 1956 (CLA). The provisions of these two sections prescribe the complete application of ECL for the entire nation. In reality, many tend to interpret these sections as if we are duty bound to refer to English Law in case of lacuna in our own law. In relation to this, Ahmad Fairuz posts four important questions for us, particularly the legal fraternity, to ponder on. They were:

• DOES this condition reflect that this country is bereft of legal expertise?

• DOES it mean that English Common Law is the best option?

• DOES it mean that our legal experts are still shackled by the yoke of the colonials (di bawah tempurung penjajah)?

• IS IT true that our legal scholars are impotent, in other words unable to formulate and develop a legal system better in comparison with ECL?

He has called for the Common Law of England to be replaced by our very own common law.

The CJ’s remarks were reported in local dailies nationwide. Amazingly, many commented positively, including some political leaders. But there were also voices of discontent from certain quarters describing the call to replace ECL as “baseless.”
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The British introduced this set of laws to Malaysia firstly through various treaties with local rulers followed by legislation and decisions by English judges or judges trained in the English legal system. Prof Ahmad argued that the last part of s. CLA – was politically indefensible. thus establishing and developing our own Malaysian Common Law (MCL). our reference to ECL and the rules of equity – by virtue of s.org. http://www. The call by Ahmad Fairuz reiterates one made by another (former) Chief Justice. are all appointed from among Malaysians. Prof Ahmad laments. various statutes of general application. Many would agree that he was not only the originator but also the prime mover of this idea. Tun Abdul Hamid Omar (in 1990). it refers to the unwritten law of customs based on the decisions of judges over a period of years in England. 3 and 5 of the CLA should be amended by repealing all references to ECL and the rules of equity administered in England. in spite of the fact that all our civil court judges.malaysianbar. law derived from customs and judicial precedent. He strongly suggested that we should refer to the court decisions in Malaysia instead by applying our own laws and by giving priority to the local conditions and its people. and he inspired many. 2008. the CLA is not to be followed blindly or literally. Unfortunately.The Malaysian Bar What is English Common Law? In brief. 3 of CLA itself should allow for the formation and development of MCL. 16:44 . 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. The very provision itself suggests that even its drafters expect us to develop our own common law.my Powered by Joomla! Generated: 19 June. i. It provides that “the said common law. This includes the rules of equity. developed and administered in that country.” Obviously. 3 needed to either be repealed or amended. 3. He continued that s.e. from the lowest to the highest. It is not an exaggeration to say that actually all these recommendations may be traced to the famous legal expertise of Prof Ahmad Ibrahim. Indeed. Prof Ahmad wrote that s. there are enough grounds for us to establish our MCL. and later. they do not show interest or use their abilities to modify ECL to suit or to conform to local circumstances. who said words to the effect that being an independent country.

its value system and legal principles. 16:44 . Prof Ahmad boldly states that the formation of MCL must be based on the basic law of the land.my Powered by Joomla! Generated: 19 June. in spite of our independence. and possibly draftsmen. We are still tied to English law and to its court’s decisions. i. It is against these elements that we must stand united. There may be certain values in the English legal tradition that may not suit our common moral precepts. which is very rare.org. This is the spirit that should be remembered when we argue for a cessation to reference to foreign laws to settle our disputes. it is done by rejecting an English law in preference for another English law. Could this form the raison d’etre for such a rejection? To hold to this as true is baseless. In this regard. All must understand that while Islam is theologically distinct from other religions and whose worldview is complete. Malay customs. 2008. Islam and Malay customs. For a common law system in our pluralistic society to become manifest. and arguably to a lesser extent. He finds support for this in the court decision of Ramah vs Laton (1927). There’s tremendous parallelism of all world religions in these aspects.The Malaysian Bar If there is any modification. we mean the formation and development of a system of law based on these ethical. in the spirit and perspective championed by Prof Ahmad. Historically.malaysianbar. http://www. it has a lot in common with other major religions.e. unfounded and would encourage fear of the unknown and bring Islamophobia to the surface. moral and legal values shared by the followers of the major religions. presided over by an English judge. local judges and lawyers. Ahmad Fairuz lends his full support to the notion of repealing or amending the CLA. morality. Input from other cultures and traditions will serve as great additions towards a harmonious peaceful life in this beloved land. the basis should be Islam. This must not be taken as an outright denial of the role and contribution of other religions or races. So when we talk about Malaysian Common Law. He stresses that it should be done using whatever necessary and possible modifications. it is logical. are not. So. and no one can argue the fact that the basic law of any nation must always be associated with real truth and justice. any notion of a super imposition of any one religious theological teaching upon the followers of other religions must never be part of that consideration. in terms of similarities as far as ethics. It is hard to really understand why certain “learned” groups – both within the legal fraternity and without – refuse to forsake ECL.

org. 16:44 . 2008.my Powered by Joomla! Generated: 19 June.malaysianbar. Institute of Islamic Understanding Malaysia (Ikim) http://www. Law and Political Science.” * The writer is the Senior Fellow/Director at the Centre for Syariah.The Malaysian Bar Perhaps the best term to describe the formation and development of this Malaysian Common Law is “Malaysianisation.