'English common law still needed'

Govt to look into CJ's suggestion: Nazri Our judiciary may risk insulating itself: Ex-judgeCindy ThamPETALING JAYA (Aug 22, 2007): Is the English common law still relevant to Malaysia, 50 years after the nation attained independence from British rule?

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 told theSun today.
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.

He was responding to Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim's comment 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.

According to Black's Law Dictionary, unlike laws enacted through the legislature, the common law comprises principles and rules of action that are derived from usages and customs, and court judgments which affirm and enforce these usages and customs.

These principles tend to have general or universal application.

As distinguished from ecclesiastical law, the common law system of jurisprudence is administered by secular tribunals.

The former law professor said any move to sever English common law from the Malaysian legal system would give rise to several questions.

"What should be used to replace the lacuna that would result from a removal of the English common law?" he asked.

He said Malaysia has several pieces of legislation, such as the Contracts Act, which resulted from the codification of English common law principles or statutes into Acts, passed by the Malaysian Parliament.

"In applying the Acts, some judges still go back to the principles of common law," he said.
"If you want to stop referring to common law, does that also apply to the Malaysian Acts that had originated from English common law statutes?"

He also asked: Has there been a high incidence of cases which Malaysian laws are unable to deal with?

"I don't know of any case in the past five years where there were no Malaysian laws to deal with the case," he said.

He added that the English common law has not had any negative effect on the process of justice in Malaysia, but served to strengthen its credibility in the international arena.

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