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PRESS RELEASE: Leave the Common Law alone 24 Aug 2007 10:50 pm

• Dropping English common law may leave nation isolated
• 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

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