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©The Sun (Used by permission)
by B. Suresh Ram

PETALING JAYA: The Bar Council yesterday said it was disturbed that Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim is questioning the need to use the English common law after 50 years of independence and seeking its abolition.

The issue has been raised before in 2004, and now that it has resurfaced, some explanation is necessary, Bar Council chairwoman Ambiga Sreenevasan said in a statement.

At the opening of the “Ahmad Ibrahim: Thoughts and Knowledge Contribution” seminar in Petaling Jaya on Tuesday, Ahmad Fairuz said despite being independent for 50 years, Malaysia had yet to be truly free from colonialism because of the provision in the Civil Law Act. He suggested that the seminar participants discuss the common law issue to see if it should be retained or substituted.

She said the Federal Constitution is the supreme law of the land, as provided for in Article 4(1).

She said this Merdeka Constitution also formed the basis when Malaysia was established on Sept 16,1963,with the common law system having pride of place.

“The courts are tasked with the responsibility of interpreting the Federal Constitution. In undertaking that duty, common law principles are applied.

“The cold print of the words used in the Constitution and its spirit are developed by judges deciding cases within the structure of the common law system. Interpretation of the Constitution is not undertaken in a vacuum,” she said.

Ambiga also said the body of Malaysian law comprised the Federal Constitution, written law (the Acts enacted by Parliament) and judge-made law (case law).

She said in the exercise of its legislative function, Parliament has passed hundreds of statutes since Merdeka, some of which were modelled on or inspired by foreign statutes while others were purely domestic without any foreign parallel.

She said judges have applied the laws of Malaysia in thousands of cases for the past 50 years.

“A significant portion of them have been reported in our law reports, and form the large corpus of case law, which is an integral part of Malaysian laws.

“These reported cases operate as precedents for future cases, so that like cases are decided in a like manner to avoid injustice and thereby promoting reliability and certainty,” she said.

Ambiga said the Civil Law Act, which came into force in Malaya on April 7, 1956, provided for the reception of English common law and the rules of equity, but only insofar local circumstances permitted it or deemed it to be necessary.

“Thus, the Malaysian courts have a wide discretion whether to accept any English common law principle or rule of equity.

“When Malaysian judges accept such principles, they become part of Malaysian common law and Malaysian law is developed in that manner.”

She explained nearly every British colony has adopted the common law system inherited from the British.

“But in each country, the courts develop their own common law which may not be identical or similar to English common law.

“It is in this flexibility that lies the strength of the common law. Thus, Malaysian common law differs in many respects from Indian common law or Australian common law.

“Without doubt, the common law system is one of the greatest and most respected legal systems in the world,” she said.

Ambiga also pointed out that the English common law also formed the basis of public international law and there was no other comparable legal system that commanded such universal respect among jurists.

She said under these circumstances, it was unfortunate the head of the judiciary had made such a public statement, which raised many questions.

“What then is the system suggested? What is to happen to the corpus of Malaysian case law painstakingly built up by distinguished Malaysian judges?” she asked.

“What about the commercial community including foreign investors; for whom the common law’s certainty, flexibility and adaptability have made it a favourite and for whom any suggestion of change will be a source for concern?” she added.

Ambiga said there was little to be gained in changing a system of law which was respected and has worked well for 50 years in Malaysia, and hundreds of years in other jurisdictions.

She said what was required instead was an examination and positive change in the system, which would administer the law so that it inspired public confidence and ensured a strong and independent judiciary.

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