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 ©The Sun
(Used by permission)
by Cindy Tham
• Govt to look into CJ's suggestion: Nazri
• Our judiciary may risk insulating itself: Ex-judge
• theSun says: The value of Common Law
PETALING JAYA (Aug 22, 2007): Is the English common law still relevant to
Malaysia, 50 years after the nation attained independence from British rule?
A former law professor said the English common law has a role to play in the
Malaysian legal system.
He said Sections 3 and 5 of the Civil Law Act provided for the use of English
common law where there was no Malaysian statute to deal with the case.
"The English common law is particularly important for commercial law," he told
theSun today.
He said that being a legal practice that was recognised internationally, the
English common law would strengthen the credibility of Malaysia's legal system
in the eyes of the world, such as among foreign investors.
He was responding to Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim's comment
that there was no need for Malaysia to refer to the English common law as there
were many legal experts here who could help to solve legal matters.
At the opening of the "Ahmad Ibrahim: Thoughts and Knowledge Contribution"
seminar in Petaling Jaya yesterday, 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.
According to Black's Law Dictionary, unlike laws enacted through the
legislature, the common law comprises principles and rules of action that are
derived from usages and customs, and court judgments which affirm and enforce
these usages and customs.
These principles tend to have general or universal application.
As distinguished from ecclesiastical law, the common law system of jurisprudence
is administered by secular tribunals.
The former law professor said any move to sever English common law from the
Malaysian legal system would give rise to several questions.
"What should be used to replace the lacuna that would result from a removal of
the English common law?" he asked.
He said Malaysia has several pieces of legislation, such as the Contracts Act,
which resulted from the codification of English common law principles or
statutes into Acts, passed by the Malaysian Parliament.
"In applying the Acts, some judges still go back to the principles of common
law," he said.
"If you want to stop referring to common law, does that also apply to the
Malaysian Acts that had originated from English common law statutes?"
He also asked: Has there been a high incidence of cases which Malaysian laws are
unable to deal with?
"I don't know of any case in the past five years where there were no Malaysian
laws to deal with the case," he said.
He added that the English common law has not had any negative effect on the
process of justice in Malaysia, but served to strengthen its credibility in the
international arena.
Govt to look into CJ's suggestion: Nazri
by B.Suresh Ram
PETALING JAYA (Aug 22, 2007): The government will look into Chief Justice
Tun Ahmad Fairuz Sheikh Abdul Halim's suggestion that Malaysia should examine
whether there is still a need to use the English common law, 50 years after the
nation has attained independence.
Minister in the Prime Minister's Department Datuk Seri Mohd Nazri Abdul Aziz
said any change would have to be rational and have a basis.
However, he said the government will not rush into this as it is still a
proposal, but will wait for the judiciary to study the matter thoroughly first.
"We will wait for the judiciary to finish its study (on the need for the English
common law). Then we will look into it," he said, when contacted.
Our judiciary may risk insulating itself: Ex-judge
by Tamarai Chelvi
PETALING JAYA (Aug 22, 2007): The Malaysian judiciary may risk insulating
itself if it were to stop referring to the English common law and English
judgments, former high court judge Datuk Syed Ahmad Idid said.
He was commenting on Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim's
statement at a seminar organised by the Islamic Understanding Institute of
Malaysia yesterday.
According to news reports, Ahmad Fairuz said he supported the late Islamic law
expert Prof Ahmad Mohamad Ibrahim's view, that the use of English common law be
abolished, and that local court decisions and circumstances be referred to
instead.
"What is certain is that Ahmad's efforts were a clear objective that has placed
Islamic law at its most qualified position," he said.
Syed Ahmad said while Ahmad Fairuz might prefer more decisions from Islamic
courts to be cited, it would be up to the judges to decide whether they wanted
to accept the principles in these judgments.
He added that Ahmad Fairuz could also mean that we cease to refer to English
judgments.
"Well, we can be insulated by referring to our own!" he said.
"But I miss the days when Malaysian judgments were cited or referred to in many
Commonwealth Courts."
Syed Ahmad said the Malaysian legal system is based on the English common law.
"The laws we observe, while many term them as our civil law, are grounded on
common law and common law is also called Anglo-American law, which simply
encompasses the body of judicial decisions and reports of decided cases.
"Some experts refer to the common law as laws that receive its force and
authority from universal consent and practice of the people. Others call it
'unwritten law' because it is not written by politicians but rather by judges,"
he explained.
Lawyer and Kota Baru member of parliament Datuk Zaid Ibrahim said the judges had
always made decisions based on Malaysian laws.
He said that at the same time, the judges also adopted certain principles from
other laws, not only the English common law but also laws from India and
Australia, to arrive at a decision.
The value of Common Law
 Any uncommon ideas are born out of forums and seminars, as
these occasions are meant to stimulate innovative thinking, especially about
pressing and difficult questions.
One such notion, that has made everyone sit up and pay attention, is the
proposal mooted at a seminar this week by Chief Justice Tun Ahmad Fairuz Sheikh
Abdul Halim that it may be time for Malaysia - after five decades of
independence - to cut itself loose from English common law.
This idea will surely stir a great deal of debate both within and outside legal
circles.
The first point to note is that the common law tradition is centuries old, and
has evolved into a stable body of legal precedents that make civil law judgments
predictable. This is a very important quality of common law that serves to give
much of commercial law a sound foundation. This predictability is the basis on
which business confidence in the legal system of a country is built.
A major problem therefore with severing our ties with English common law is that
it would make the Malaysian legal system that much less predictable, with
potentially serious consequences for international investor confidence in our
redressal procedures.
As long as common law guides our courts, businesses can be assured that their
investments are protected under internationally accepted legal principles. Sans
common law, that guarantee falls.
The second point that arises from the proposal is the question of what would
replace common law. In the secular arena, the other sources of law - the Federal
Constitution, Parliament and regulatory agencies - would leave a lacuna where
judicial precedence now holds sway.
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The Chief Justice of our Federal Court, Tun Ahmad Fairuz Sheikh Abdul Halim, has willy nilly engraved on granite a colourful place for himself in the history of our judiciary.
This place is certainly not the same one where we hold our Lord presidents Tun Suffian and HRH Raja Azlan Shah. Alas, sometimes it is better to remain silent than to prove to all our true colour. That way, we sometimes become colourless.
Stephen Tan Ban Cheng