Thursday, August 23, 2007

Judiciary Confusion?

Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim said that there was no need for Malaysia to refer to the English common law as there were many legal experts here who could help to solve legal matters.

At the opening of the "Ahmad Ibrahim: Thoughts and Knowledge Contribution" seminar in Petaling Jaya yesterday, Ahmad Fairuz said despite being independent for 50 years, Malaysia had yet to be truly free from colonialism because of the provision in the Civil Law Act. He suggested that the seminar participants discuss the common law issue to see if it should be retained or substituted.

I do not agree with the chief judge that just because the foundation of our legal system is based on the English law, we are still submitting ourselves to colonialism. It is more important for the legal system to stay flexible and be able to extract important and strong elements from other jurisdictions to ensure that justice is dispensed fairly.


A former law professor said the English common law has a role to play in the Malaysian legal system.
He said Sections 3 and 5 of the Civil Law Act provided for the use of English common law where there was no Malaysian statute to deal with the case.

"The English common law is particularly important for commercial law." He said that being a legal practice that was recognised internationally, the English common law would strengthen the credibility of Malaysia's legal system in the eyes of the world, such as among foreign investors.

The Malaysian judiciary may risk insulating itself if it were to stop referring to the English common law and English judgments, former high court judge Datuk Syed Ahmad Idid said.

Syed Ahmad said while Ahmad Fairuz might prefer more decisions from Islamic courts to be cited, it would be up to the judges to decide whether they wanted to accept the principles in these judgments.
He added that Ahmad Fairuz could also mean that we cease to refer to English judgments.
"Well, we can be insulated by referring to our own!" he said.

"But I miss the days when Malaysian judgments were cited or referred to in many Commonwealth Courts."
Syed Ahmad said the Malaysian legal system is based on the English common law.

"The laws we observe, while many term them as our civil law, are grounded on common law and common law is also called Anglo-American law, which simply encompasses the body of judicial decisions and reports of decided cases.

"Some experts refer to the common law as laws that receive its force and authority from universal consent and practice of the people. Others call it 'unwritten law' because it is not written by politicians but rather by judges," he explained.

Lawyer and Kota Baru member of parliament Datuk Zaid Ibrahim said the judges had always made decisions based on Malaysian laws.

He said that at the same time, the judges also adopted certain principles from other laws, not only the English common law but also laws from India and Australia, to arrive at a decision.

Bar Council has voiced out a similar concern that the courts should stop referring to the English common law.

What is the real basis of the chief justice's suggestion?

Meanwhile, Nazri Aziz said the government will look into Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim's suggestion that Malaysia should examine whether there is still a need to use the English common law, 50 years after the nation has attained independence. He mentioned that any change would have to be rational and have a basis.

Is this a start of judiciary revamp? Will this make the syariah courts and Islamic law more powerful? Read Opposition Leader Lim Kit Siang's blog on this issue.


Anonymous said...

You did say the law must remain flexible, so lets consider Islamic law as the main thrust then. After all the common law derived from neandertalic and pseudo-christianic prctices is alien to all of us

Khoo Kay Peng said...

I do not think I agree with you that the common law is derived from psuedo-christian belief. Many of its tenets are based on universal human rights.

If Islamic law professes the same and not seeking an exclusive position for muslims against non-muslims, display consistency, not prejudicial and is consistent with the universal human rights - why not?

But firstly, does Islamic values and Islamic law support racism and race supremacism? This is the lowest denomimator in any society.

Remember, 60000 chinese in Malaysia are muslims.

kittykat46 said...

What the Chief Justice really meant but did not say, is Common Law should be replaced by Syariah principles
Another step down the slippery slope to an Islamic theocracy.

Khoo Kay Peng said...

Unfortunately, he said precisely that.