The Malaysian Bar

Common law already in place

Friday, 21 September 2007 06:25AM

©The Star
(Letters Section)
(Used by permission)

by Roger Tan

I REFER to the report “Time

to Malaysianise common law system” by Dr Wan Azhar Wan Ahmad (The
Star, Sept 18).

Like all others who advocate the replacement of the English common law, Dr Wan
Azhar has laboured under a serious misconception that we have to establish and
develop the Malaysian common law when, in fact, the Malaysian common law has
been actively evolving and developing since Merdeka. It is actually a non-issue.

The former Lord President, Sultan Azlan Shah, acknowledges this. Writing in 2004
(Constitutional Monarchy, Rule of Law and Good Governance, pp. 188-189), Sultan Azlan Shah wrote that it is erroneous
to say that any reference to the common
law in Malaysia especially in the field of commercial transactions means the
common law of England.

He added that over the past hundred years or so, through the judicial process,
almost every branch of the law in Malaysia has been developed, and that whilst
the Malaysian common law may be similar to the English common law, what is
applicable is, in fact, the Malaysian common law.

In my view, this situation is akin to us borrowing English words to develop our

National Language. As an avid reader of Malay newspapers for many years, I have
observed how English words are constantly converted into Bahasa Malaysia to fill
the vacuum. Once converted and used, the words become part of the Bahasa
Malaysia vocabulary. Thereafter, one does not say such words are in fact the
English language.

It follows that our legislature and judges have already developed the Malaysian
common law to such an advanced stage that these days local cases are often cited
in our courts compared to the early years of our nationhood. It is obviously not
a case where our country is devoid of any legal expertise.

Likewise, it is mendacious to describe our legal experts as impotent or they are

still colonised when, in fact, we can now actually take pride in the development
of the Malaysian common law.

What many take issue, however, is with the late Tan Sri Prof Ahmad Ibrahim’s
proposal to develop a new system of common law based on his notion of the basic
law of the land – Islam and Malay customs. This is where Dr Wan Azhar and Prof
Ahmad Ibrahim have erred because the basic law of the land is the Federal
Constitution.

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 The Malaysian Bar

Therefore, to replace the Malaysian common law on this misconceived basis is a

separate issue altogether as it is tantamount to substituting the Malaysian
syariah law for the Malaysian common law.

A fortiori, to amend the Civil Law Act to allow this will offend the spirit of
the Federal Constitution in our multi-racial, multi-religious and multi-cultural
society.

In fact, decisions of our judges delivered in the pre-1988 Judicial Crisis were
often cited in various Commonwealth jurisdictions, but not any more these days.
We were then, like the English, exporting our Malaysian common law!

What we should be aiming at is to improve the administration of justice in this

country – the upgrading of our courts to make access to justice speedier,
cheaper and more efficient in this information technology age, and ensuring that
only the best and most qualified are appointed to dispense justice in our land.

It follows that what is more urgent and vital is to restore international

respect for our judgments that form the Malaysian common law.

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