Wednesday August 22, 2007

Is common law still needed?

PETALING JAYA: The Chief Justice has questioned the need to use English common law after 50 years of independence.

Tun Ahmad Fairuz Sheikh Abdul Halim said that since the country's independence in 1957, Parliament, which was a branch of the Government, enacted laws while the judiciary interpreted them.

“My own opinion is that there is no need for us to go to the common law of England now as we have many legal experts who can provide their views on solving legal matters,” he said, speaking to reporters after officially opening the “Ahmad Ibrahim: Thoughts and Knowledge Contribution” seminar here yesterday.

He said he was merely suggesting at the seminar that delegates discuss the common law issue, whether to maintain the current position or substitute it with another procedure.

Sections 3 and 5 of the Civil Law Act permits judges wide discretion to import English common law, equity and statutes into the legal system to fill lacunas in Malaysian laws, but this power was subjected to such qualifications as local circumstances rendered necessary.

In his speech earlier, Ahmad Fairuz said Malaysia had yet to escape the clutches of the colonialism, as Sections 3 and 5 of the Civil Law Act were enforced despite the country being independent for 50 years.

He said he strongly supported the late Prof Ahmad Mohamad Ibrahim’s views to abolish the use of English common law and instead refer to the decisions of Malaysian courts, giving priority to local circumstances.

“In my opinion, his direction should be persevered, regardless of how it is modified. What is certain is that Professor Ahmad’s efforts were a clear objective that has placed Islamic law at its most qualified position,” he said.

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