©The Sun
(Used by permission)
by Param Cumaraswamy
IT is not very clear what Chief Justice Tun Ahmad Fairuz said when he questioned the need to continue using English common law in Malaysia. He was reported to have referred to Sections 3 and 5 of the Civil Law Act 1956 (and revised in 1972). In order to understand what he could have meant one needs to read Sections 3 and 5 of the Act. (see box, below)
It will be noted that under Section 3 only the common law and rules of equity as applied in England as on April 7, 1956 are applicable in West Malaysia.For Sabah and Sarawak the cut–off dates are Dec 1, 1951 and Dec 12, 1949. Under Section 5, reception of English law, whether common law or statute law, in relation to the stated subjects is limited to the laws as existed on April 7, 1956 when the Civil Law Act came into force. The common law or statute law after the cut–off dates are not automatically applicable.
It has been held by Malaysian courts that when there are express statutory provisions in Malaysian law the common law cannot be resorted to unless there are lacunae or ambiguities in our law.
A pertinent point to note is the cut–off dates: April 7, 1956 for West Malaysia; Dec 1, 1951 for Sabah and Dec 12, 1949 for Sarawak. Only the common law prevailing then and statute law on the stated subjects under Section 5 are automatically applicable here if there are no express local laws applicable to the subject matter in issue.
There have been considerable changes in England since those cut–off dates. To some extent common law itself has been changed and superseded by statute law. Case law too has been changed by subsequent court decisions. It would therefore be absurd for our courts to apply a law of England which has since been changed in that country. Moreover, among the stated subjects under Section 5 many are now governed by local statutes in Malaysia.
Hence there is some merit in the suggestion of the Chief Justice that automatic reception of the common law as existed on those cut–off dates should be repealed, if that is what he meant. Many of such laws may be archaic and no longer law in England.
However, common law principles as applied and developed in England and other Commonwealth countries should continue to be received and applied in Malaysia when there is no express domestic law or to resolve a lacuna or ambiguity in the law. The Malaysian Constitution itself was structured on common law values. Doing away with common law or moving away could damage the basic fabric of the Constitution. The dynamism of the common law is seen in how it is applied and developed among the Commonwealth of nations. Even in an Islamic State like Pakistan common law is applied. Recent calls by certain groups for application of the Syariah law were resisted by large scale street demonstrations. To a large extent international law today owes it to common law for the former’s development.
By moving away from common law Malaysia will be seen moving away from these nations and will be seen insular and isolated.
Param is former UN Special Rapporteur on the Independence of Judges & Lawyers.
Section 3. Application of U.K. common law, rules of equity
and certain statutes.
(1) Save so far as other provision has been made or may hereafter be made
by any written law in force in Malaysia, the Court shall–
(a) in West Malaysia or any part thereof, apply the common law of England and
the rules of equity as administered in England on the 7th day of April 1956;
(b) in Sabah, apply the common law of England and the rules of equity, together
with statutes of general application, as administered or in force in England on
the 1st day of December 1951;
(c) in Sarawak, apply the common law of England and the rules of equity,
together with statutes of general application, as administered or in force in
England on the 12th day of December 1949, subject however to subsection (3)(ii):
Provided always that the said common law, rules of equity and statutes of
general application shall be applied so far only as the circumstances of the
States of Malaysia and their respective inhabitants permit and subject to such
qualifications as local circumstances render necessary.
(2) Subject to the express provisions of this Act or any other written law
in force in Malaysia or any part thereof, in the event of conflict or variance
between the common law and the rules of equity with reference to the same
matter, the rules of equity shall prevail.
(3) Without prejudice to the generality of subsection (1)(b) and (c) and
notwithstanding subsection (1)(c)–
(i) it is hereby declared that proceedings of a nature such as in England are
taken on the Crown side of the Queen's Bench Division of the High Court by way
of habeas corpus or for an order of mandamus, an order of prohibition, an order
of certiorari or for an injunction restraining any person who acts in an office
in which he is not entitled to act, shall be available in Sabah to the same
extent and for the like objects and purposes as they are available in England;
(ii) the Acts of Parliament of the United Kingdom applied to Sarawak under
sections 3 and 4 of the Application of Laws Ordinance of Sarawak [Cap. 2] and
specified in the Second Schedule of this Act shall, to the extent specified in
the second column of the said Schedule, continue in force in Sarawak with such
formal alterations and amendments as may be necessary to make the same
applicable to the circumstances of Sarawak and, in particular, subject to the
modifications set out in the third column of the said Schedule.
Section 5. Application of English law in commercial
matters.
(1) In all questions or issues which arise or which have to be decided in the
States of West Malaysia other than Malacca and Penang with respect to the law of
partnerships, corporations, banks and banking, principals and agents, carriers
by air, land and sea, marine insurance, average, life and fire insurance, and
with respect to mercantile law generally, the law to be administered shall be
the same as would be administered in England in the like case at the date of the
coming into force of this Act, if such question or issue had arisen or had to be
decided in England, unless in any case other provision is or shall be made by
any written law.
(2) In all questions or issues which arise or which have to be decided in the
States of Malacca, Penang, Sabah and Sarawak with respect to the law concerning
any of the matters referred to in subsection (1), the law to be administered
shall be the same as would be administered in England in the like case at the
corresponding period, if such question or issue had arisen or had to be decided
in England, unless in any case other provision is or shall be made by any
written law.