Time to Malaysianise common law system

By Dr Wan Azhar Wan Ahmad

It should be based on ethical, moral and legal values shared by the followers of the major religions.

THE Chief Justice of Malaysia, Tun Ahmad Fairuz Sheikh Abdul Halim, in his opening speech at Ikim's seminar titled Ahmad Ibrahim: His Intellectual Thought and Contributions, expressed his disappointment over the captive mentality of our legal experts, practitioners, judges and lawyers in reference to the high esteem they accorded English law, or to be more specific, English Common Law (ECL).

He regretted that despite the nation being independent for 50 years, we still retained, followed and rigidly adhered to s. 3 and 5 of the Civil Law Act 1956 (CLA). The provisions of these two sections prescribe the complete application of ECL for the entire nation.

In reality, many tend to interpret these sections as if we are duty bound to refer to English Law in case of lacuna in our own law. In relation to this, Ahmad Fairuz posts four important questions for us, particularly the legal fraternity, to ponder on. They were:

DOES this condition reflect that this country is bereft of legal expertise?

> DOES it mean that English Common Law is the best option?

> DOES it mean that our legal experts are still shackled by the yoke of the colonials (di bawah tempurung penjajah)?

> IS IT true that our legal scholars are impotent, in other words unable to formulate and develop a legal system better in comparison with ECL?

He has called for the Common Law of England to be replaced by our very own common law.

The CJ's remarks were reported in local dailies nationwide. Amazingly, many commented positively, including some political leaders. But there were also voices of discontent from certain quarters describing the call to replace ECL as "baseless."

What is English Common Law? In brief, it refers to the unwritten law of customs based on the decisions of judges over a period of years in England, i.e. law derived from customs and judicial precedent. This includes the rules of equity, and later, various statutes of general application, developed and administered in that country.

The British introduced this set of laws to Malaysia firstly through various treaties with local rulers followed by legislation and decisions by English judges or judges trained in the English legal system.

The call by Ahmad Fairuz reiterates one made by another (former) Chief Justice, Tun Abdul Hamid Omar (in 1990), who said words to the effect that being an independent country, our reference to ECL and the rules of equity – by virtue of s. 3, CLA – was politically indefensible. He continued that s. 3 needed to either be repealed or amended.

It is not an exaggeration to say that actually all these recommendations may be traced to the famous legal expertise of Prof Ahmad Ibrahim. Many would agree that he was not only the originator but also the prime mover of this idea, and he inspired many.

Prof Ahmad wrote that s. 3 and 5 of the CLA should be amended by repealing all references to ECL and the rules of equity administered in England.

He strongly suggested that we should refer to the court decisions in Malaysia instead by applying our own laws and by giving priority to the local conditions and its people, thus establishing and developing our own Malaysian Common Law (MCL).

Prof Ahmad argued that the last part of s. 3 of CLA itself should allow for the formation and development of MCL. It provides 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."

Obviously, the CLA is not to be followed blindly or literally. The very provision itself suggests that even its drafters expect us to develop our own common law. Indeed, there are enough grounds for us to establish our MCL.

Unfortunately, Prof Ahmad laments, in spite of the fact that all our civil court judges, from the lowest to the highest, are all appointed from among Malaysians, they do not show interest or use their abilities to modify ECL to suit or to conform to local circumstances.

If there is any modification, which is very rare, it is done by rejecting an English law in preference for another English law. So, in spite of our independence, local judges and lawyers, and possibly draftsmen, are not. We are still tied to English law and to its court's decisions.

Ahmad Fairuz lends his full support to the notion of repealing or amending the CLA. He stresses that it should be done using whatever necessary and possible modifications, in the spirit and perspective championed by Prof Ahmad.

It is hard to really understand why certain "learned" groups – both within the legal fraternity and without – refuse to forsake ECL. Prof Ahmad boldly states that the formation of MCL must be based on the basic law of the land, i.e. Islam and Malay customs.

He finds support for this in the court decision of Ramah vs Laton (1927), presided over by an English judge. Could this form the raison d'etre for such a rejection?

To hold to this as true is baseless, unfounded and would encourage fear of the unknown and bring Islamophobia to the surface. Historically, it is logical, and no one can argue the fact that the basic law of any nation must always be associated with real truth and justice.

All must understand that while Islam is theologically distinct from other religions and whose worldview is complete, in terms of similarities as far as ethics, morality, its value system and legal principles, it has a lot in common with other major religions. There's tremendous parallelism of all world religions in these aspects.

So when we talk about Malaysian Common Law, we mean the formation and development of a system of law based on these ethical, moral and legal values shared by the followers of the major religions.

There may be certain values in the English legal tradition that may not suit our common moral precepts. It is against these elements that we must stand united.

This is the spirit that should be remembered when we argue for a cessation to reference to foreign laws to settle our disputes. In this regard, any notion of a super imposition of any one religious theological teaching upon the followers of other religions must never be part of that consideration.

For a common law system in our pluralistic society to become manifest, the basis should be Islam, and arguably to a lesser extent, Malay customs. This must not be taken as an outright denial of the role and contribution of other religions or races. Input from other cultures and traditions will serve as great additions towards a harmonious peaceful life in this beloved land.

Perhaps the best term to describe the formation and development of this Malaysian Common Law is "Malaysianisation."

The writer is the Senior Fellow/Director at the Centre for Syariah, Law and Political Science, Institute of Islamic Understanding Malaysia (Ikim)