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Call to replace common law ‘baseless’ |
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Thursday, 23 August 2007 07:48am |
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©The Star
(Used by permission)
by Shaila Koshy
KUALA LUMPUR: Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim’s call for
the common law system to be replaced is without basis, the Bar Council said.
When Malaysian judges accept any English common law principle, they become part
of Malaysian common law and Malaysian law is developed that way, said the Bar
Council chairman Ambiga Sreenevasan.
Although nearly every British colony had adopted the English common law system,
she said each country had developed its own common law.
“Thus, Malaysian common law differs in many respects from Indian or Australian
common law,” said Ambiga in response to Ahmad Fairuz' call for its replacement
on Tuesday.
Speaking to reporters after opening the “Ahmad Ibrahim: Thoughts and
Knowledge Contribution” seminar, the head of the judiciary had said: “My own
opinion is that there is no need for us to go to the common law of England now
as we have many legal experts who can provide their views on solving legal
matters.”
Ambiga asked: “What is to happen to the corpus of Malaysian case law
painstakingly built up by distinguished Malaysian judges – is it to be discarded
overnight?”
What was required instead, she said, was a positive change in the administration
of the law so it inspired public confidence and ensured an independent
judiciary.
She stressed that Section 3(2) of the Civil Law Act, which provides for the
import of English common law, gave Malaysian judges a wide discretion whether to
accept any English common law principle or rule of equity.
Ambiga said common law had pride of place in the supreme law of the land, the
Constitution, that formed the basis of Malaysia which was established on Sept
16, 1963, when the then North Borneo (Sabah) and Sarawak joined the Federation.
She added that the letter of the law and its spirit are developed by judges
deciding cases within the structure of the common law system.
Thousands of cases, she said, had been determined by Malaysian judges over the
past 50 years, forming the corpus of case law that is integral to the laws of
Malaysia.
Ambiga said the common law system commanded universal respect among jurists.
She added that any suggestion of change would be a source of concern for the
commercial community, including foreign investors.
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