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