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Dropping English
common law may leave nation isolated
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MCCBCHST Press
Statement:: Common Law is serving us well
The Bar Council notes with alarm and dismay the support for the proposal
to replace the common law system in this country. The suggestion from some
quarters now appears to be that it be replaced gradually with the Syariah law
system. (Click here to poll: "Should the Bar Council convene an EGM to reaffirm the
supremacy of the Federal Constitution and the application of the Common Law?"
Only registered members may poll.)
The Bar Council is deeply concerned that these statements are made with no
apparent understanding of, or respect for, the system of law that operates in
this country under the Federal Constitution. What we have after 50 years of
Merdeka is the Malaysian common law built up painstakingly by Parliament and the
Malaysian Judiciary. Thus it differs in many respects from the common law in
other jurisdictions by virtue of its development locally. It was not built
overnight. Citizens, organisations, local and foreign businesses, all conduct
their affairs in Malaysia based on the common law system. All this will become
meaningless if the common law system is replaced. Why is there this sudden need
to change a system that has worked so well in Malaysia and that will continue to
work well for hundreds of years as it has in other jurisdictions? The proponents
of this change have not put forward a single cogent or credible argument for it.
We must be mindful of our Constitutional and legal history that has resulted in
the development of our Malaysian common law. Against this background it is
irresponsible for those entrusted with administering our law (and who are
schooled in the common law) as well as for those in power, to call for a change
for no valid reason. There appears to be little appreciation of the full
ramifications of their suggestions and the effect this will have on Malaysia
locally and internationally and on investor confidence in this country.
Let there be no mistake. Any attempt to dismantle the common law system is a
direct attack on our Federal Constitution. It is a backdoor attempt to rewrite
it and to move Malaysia towards becoming a theocratic state which our founding
fathers and recently our Prime Minister have recognised we are not. It violates
the social contract. That it comes from those who ought to uphold the law and
Constitution is all the more regrettable.
We are on the brink of 50 years of Merdeka. We are in an era of globalisation.
Instead of seeking to displace a system that has earned the respect of the
international community and that has united our people, we ought to address what
truly ails our system of justice. And it is certainly not the Malaysian common
law.
Ambiga Sreenevasan
President
Malaysia Bar