mlaysianies common law

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

TheStar (Used by permission)IKIM Views by Dr Wan Azhar Wan Ahmad

"For a common law system in our pluralistic society tobecome 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 ofthe major religions.

THE Chief Justice of Malaysia, Tun Ahmad Fairuz Sheikh Abdul Halim, in hisopening speech at Ikim's seminar titled Ahmad Ibrahim: His IntellectualThought and Contributions, expressed his disappointment over the captive

mentality of our legal experts, practitioners, judges and lawyers in referenceto the high esteem they accorded English law, or to be more specific, EnglishCommon Law (ECL).

He regretted that despite the nation being independent for 50 years, we stillretained, 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 ECLfor the entire nation.

In reality, many tend to interpret these sections as if we are duty bound torefer 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 legalfraternity, 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 ofthe colonials (di bawah tempurung penjajah)?

IS IT true that our legal scholars are impotent, in other words unableto 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 owncommon law.

The CJs remarks were reported in local dailies nationwide. Amazingly, manycommented positively, including some political leaders. But there were alsovoices of discontent from certain quarters describing the call to replace ECL asbaseless.

The Malaysian Bar

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If there is any modification, which is very rare, it is done by rejecting anEnglish law in preference for another English law. So, in spite of ourindependence, local judges and lawyers, and possibly draftsmen, are not. We arestill tied to English law and to its courts decisions.

Ahmad Fairuz lends his full support to the notion of repealing or amending the

CLA. He stresses that it should be done using whatever necessary and possiblemodifications, in the spirit and perspective championed by Prof Ahmad.

It is hard to really understand why certain learned groups both within thelegal fraternity and without refuse to forsake ECL. Prof Ahmad boldly statesthat the formation of MCL must be based on the basic law of the land, i.e. Islamand Malay customs.

He finds support for this in the court decision of Ramah vs Laton (1927),

presided over by an English judge. Could this form the raison detre for such arejection?

To hold to this as true is baseless, unfounded and would encourage fear of theunknown and bring Islamophobia to the surface. Historically, it is logical, andno one can argue the fact that the basic law of any nation must always beassociated with real truth and justice.

All must understand that while Islam is theologically distinct from other

religions and whose worldview is complete, in terms of similarities as far asethics, morality, its value system and legal principles, it has a lot in commonwith other major religions. Theres tremendous parallelism of all worldreligions in these aspects.

So when we talk about Malaysian Common Law, we mean the formation anddevelopment of a system of law based on these ethical, moral and legal valuesshared by the followers of the major religions.

There may be certain values in the English legal tradition that may not suit ourcommon moral precepts. It is against these elements that we must stand united.

This is the spirit that should be remembered when we argue for a cessation toreference to foreign laws to settle our disputes. In this regard, any notion ofa super imposition of any one religious theological teaching upon the followersof other religions must never be part of that consideration.

For a common law system in our pluralistic society to become manifest, the basisshould be Islam, and arguably to a lesser extent, Malay customs. This must notbe taken as an outright denial of the role and contribution of other religionsor races. Input from other cultures and traditions will serve as great additionstowards a harmonious peaceful life in this beloved land.

The Malaysian Bar

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