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.

Govt to look into CJ's suggestion: Nazri
B.Suresh Ram

PETALING JAYA (Aug 22, 2007): 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.

Minister in the Prime Minister's Department Datuk Seri Mohd Nazri Abdul Aziz said any change would have to be rational and have a basis.

However, he said the government will not rush into this as it is still a proposal, but will wait for the judiciary to study the matter thoroughly first.

"We will wait for the judiciary to finish its study (on the need for the English common law). Then we will look into it," he said, when contacted.

Our judiciary may risk insulating itself: Ex-judge
Tamarai Chelvi

PETALING JAYA (Aug 22, 2007): 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.

He was commenting on Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim's statement at a seminar organised by the Islamic Understanding Institute of Malaysia yesterday.

According to news reports, Ahmad Fairuz said he supported the late Islamic law expert Prof Ahmad Mohamad Ibrahim's view, that the use of English common law be abolished, and that local court decisions and circumstances be referred to instead.

"What is certain is that Ahmad's efforts were a clear objective that has placed Islamic law at its most qualified position," he 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.

• The value of Common Law