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• Call to replace common law ‘baseless’
• Bar Council disturbed: Ambiga

The Bar Council is disturbed to read reports published in today’s papers containing remarks made by the Chief Justice questioning the need to use English common law after 50 years of independence and seeking its abolition. It is an issue that has been raised before in 2004, and now that it has resurfaced, some explanation is necessary.

The Federal Constitution is the supreme law of the land as provided in Article 4(1). This Merdeka Constitution also formed the basis when Malaysia was established on 16th September 1963 and North Borneo and Sarawak joined the Federation 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.

The body of Malaysian law comprises the Federal Constitution (as the supreme law), written law, that is, Acts enacted by Parliament, and judge made law that is, case law. Subject to being declared as unconstitutional by a Court, Parliament has a free hand to enact laws. In the exercise of its legislative function, Parliament has passed hundreds of statutes since Merdeka: some of which are modelled on or inspired by foreign statutes while others are purely domestic without any foreign parallel.

Judges have applied the laws of Malaysia in the thousands of cases that have been determined in all branches of the law in all the Courts of Malaysia 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 the laws of Malaysia. 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.

The Civil Law Act, which came into force in Malaya on 7th April 1956 and therefore prior to Merdeka, provides for the reception of English common law and the rules of equity, but only insofar “as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary”: see Section 3 (2). 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. 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. It also forms the basis of public international law. There is no other comparable legal system that commands such universal respect among jurists.

In these circumstances, it is unfortunate for the head of the Judiciary, which institution applies Malaysian common law principles in all the Courts of the land daily, to state publicly and without acceptable basis that the common law system should be replaced. What then is the system suggested? 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 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?

There is little to be gained in changing a system of law that is respected and has worked well for 50 years in our country, and hundreds of years in other jurisdictions.

What is required instead is an examination and positive change in the system that administers that law so that it inspires public confidence and ensures a strong and independent judiciary.

Ambiga Sreenevasan
President
Malaysian Bar

22 August 2007

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