Limited use

Calls for abol­ish­ing English com­mon law are un­nec­es­sary as its ap­pli­ca­tion is only in very limited cir­cum­stances which can be avoided.

The Star Malaysia - Star2 - - ENVIRONMENT - BHAG SINGH

Calls to abol­ish English com­mon law are un­nec­es­sary as its ap­pli­ca­tion is only in very limited cir­cum­stances which can be avoided.

WHAT is the English com­mon law that we in Malaysia are us­ing? This is what a reader wants to know in the light of re­ported calls by cer­tain par­ties that English com­mon law should be abol­ished.

In or­der to abol­ish English com­mon law, one needs to first know what the laws in ques­tion are. Only then can it be said whether any one or more of such laws ought to be abol­ished. But there is in fact no English com­mon law as such that ex­ists in the coun­try.

The start­ing point for laws in the coun­try is the Fed­eral Con­sti­tu­tion. It places the power to make laws in the hands of Par­lia­ment and the state leg­isla­tive assem­bly of each con­stituent state in the coun­try.

This is be­cause cer­tain ar­eas and sub­jects are within the ju­ris­dic­tion of the in­di­vid­ual states and the power to make laws is with the state assem­bly.

Our laws are con­tained in Acts of Par­lia­ment as well as or­di­nances and en­act­ments of the leg­isla­tive as­sem­blies of the dif­fer­ent states.

Un­der such laws, there is also a host of what is called “sub­sidiary leg­is­la­tion” in the form of rules, reg­u­la­tions and by-laws.

When our courts im­ple­ment and in­ter­pret these laws, the de­ci­sion in so far as it goes be­yond the lit­eral mean­ing of the words used, may be said to con­sti­tute our own com­mon law.

Of course, this is not to say that the prin­ci­ples of English com­mon law are alien to us. Many Acts, or­di­nances and en­act­ments em­body prin­ci­ples de­rived from English com­mon law. How­ever, when such prin­ci­ples are in­cor­po­rated into our leg­is­la­tion, it be­comes Malaysian law. It is no longer English com­mon law.

This re­liance on English com­mon law prin­ci­ples, where it ex­ists, is due to our his­tory. More than 200 years ago when the Bri­tish came, they felt that the ex­ist­ing laws were ei­ther in­ad­e­quate or un­suit­able. So they in­tro­duced the only laws that they knew.

Thus English com­mon law was in­tro­duced. This was done through the Char­ter of Jus­tice, the first of which was in Pe­nang in 1807.

This Char­ter pro­vided for the set­ting up of a court which was man­dated to im­ple­ment the law that was ad­min­is­tered in Eng­land but with the qual­i­fi­ca­tion “so far as cir­cum­stances will per­mit”.

The court was also re­quired to give and pass judg­ment “ac­cord­ing to jus­tice and rights”. Ac­cord­ing to the late Prof G.W. Bartholomew in his book, The Com­mer­cial Law Of Malaysia: “The Char­ter was in­ter­preted as in­tro­duc­ing into Pe­nang the law of Eng­land as it stood at the date of the Char­ter in so far as it was suit­able to the con­di­tion of the peo­ple and place.”

This was fol­lowed by sub­se­quent Char­ters in the dif­fer­ent territories acquired by the Bri­tish. In other parts of the coun­try where they ex­er­cised in­flu­ence rather than ac­quir­ing the ter­ri­tory, out­right English com­mon law was sim­i­larly in­tro­duced through En­act­ments.

This was al­ways done on the ba­sis that the English com­mon law prin­ci­ples would only be ap­plied in so far as lo­cal cir­cum­stances per­mit­ted and sub­ject to such qual­i­fi­ca­tion as lo­cal cir­cum­stances ren­dered nec­es­sary. Such laws did not touch on per­sonal mat­ters, in­clud­ing re­li­gion and cus­toms.

Though the phrase com­mon law is of­ten re­ferred to, what does it re­ally en­com­pass? One ex­pla­na­tion given is that it is “the com­mon law sense of the com­mu­nity, crys­tallised and for­mu­lated over gen­er­a­tions.”

In Eng­land, though there are statutes, much of the law con­tin­ues to be in com­mon law form. Thus its ef­fect and im­pli­ca­tions con­tinue to be traced through de­ci­sions in de­cided cases. In the colonies where the law was in­tro­duced, it was felt that the law would be bet­ter ap­pre­ci­ated and un­der­stood if it were or­gan­ised into sec­tions in a statute.

Of course, as the colonies gained in­de­pen­dence, each coun­try has made amend­ments and changes to meet its needs and ad­just to its cir­cum­stances.

In or­der to en­sure uni­for­mity, a prin­ci­ple once laid down by a court is fol­lowed in later de­ci­sions, es­pe­cially where the de­ci­sion is by a higher court. This fol­low­ing of such pre­vi­ous de­ci­sions is re­ferred to as the doc­trine of prece­dent.

Back to the ques­tion of ap­ply­ing English com­mon law, the need to ap­ply only arises where there are no pro­vi­sions al­ready in ex­is­tence in any writ­ten law. This is the ef­fect of sec­tion 3 and 5 of our Civil Law Act 1956.

This was high­lighted by Datuk Seri Nazri Ab­dul Aziz re­cently in Par­lia­ment when he ex­plained that the re­cep­tion of the English com­mon law though the Civil Law Act 1956 was only ap­pli­ca­ble in Malaysia un­der the pre­vail­ing sit­u­a­tion and in in­stances where lo­cal laws for ap­pli­ca­tion in dis­puted mat­ters were ab­sent.

These sec­tions stip­u­late the state of the law in Eng­land at a par­tic­u­lar time for pur­poses of be­ing re­lied upon. There are also dif­fer­ences in tim­ing to adopt the law depend­ing on whether the dis­pute or need arises in what were the for­mer Fed­er­ated Malay States and Un­fed­er­ated Malay States as one group, Pe­nang and Malacca as an­other, and Sabah and Sarawak sep­a­rately.

Thus there is re­ally noth­ing that needs to be abol­ished in terms of English com­mon law. What would be more mean­ing­ful would be to de­tect ar­eas where we do not have ex­ist­ing pro­vi­sions. This is eas­ier said than done. But if this could be done, Par­lia­ment could en­act laws to cover such ar­eas. In this way, there would be no need for English com­mon law to ap­ply at all.

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