Wednesday, September 19, 2007

Common Law

The Chief Justice of Malaysia, Tun Ahmad Fairuz Sheikh Abdul Halim, was pretty upset over the dissonant drawbacks from legal fraternity when he suggest to abolish entirely the usage of English Common Law(ECL) system in Malaysia and to be replaced with a Malaysian Common Law(MCL). Tun Ahmad expressed his dissapointment towards our legal experts in reference to their captive mentality and rigid accordance to English Law despite the nation being independent for 50 years. In relation to this, Tun posts four important question for the legal fraternity to ponder ;

1) Does this condition reflect that this country is bereft of legal expertise?
2) Does it mean that English Common Law is the best option?
3) Does it mean that our legal experts are still shackled by the yoke of the colonials?
4) Is it true that our legal scholars are impotent,in other wors unable to formulate and develop a legal system better in comparison with English Common Law?

There are few excerpt which I found worth a confutation/explanation in the article written by Senior Fellow/Director at the Centre for Syariah , Law and Political Science Institute of Islamic Understanding Malaysia(Ikim) that accede to the abrupt massive overhaul in our legal system ignoring the pre-existing problem occuring.

" Unfortunately, in spite of the fact that all our civil court judges, from the lowest to the highest, are all appointed from among Malaysians,they do not show interest or use their abilities to modify English Common Law to suit or to conform to local circumstances"

" There may be certain values in the English legal tradition that may not suit our common moral percepts. It is against there elements that we must stand united"

" Formation of Malaysia Common Law must be based on the basic law of the land, i.e. Islam and Malay custom"

I personally perceive the idea behind massive overhaul of our legal system was political based,in regards of plans to place Syariah Law supreme over the civil court and completely hinder LLB graduate( legal graduates obtaining English Law degree) from praticising in Malaysia. In respect of it, local bar council,predominant LLB graduates, have unanimously rejected the overhaul proposal as being an insignificant move where instead there should be a reform in the judicial system subsequent to internal problem related to lack of independency and appointment transparency. Dealing a matter of grave concern imperatively precede others especially when the courts carry the idea of "ultimate protector of the land" to upheld the rule of law. Fairly accused, it is pointless to change legal preference when the operative mechanism itself is subject to criticism.

ECL ought to stay for the obvious reason. Despite the nation has gradually grown for the past 5 decades, English law veneratedly being the oldest rule of law standing, is a vital reference in making GOOD law. It is impossible to ignore the well-developed law which provide the best way of preventing rights from infringement. Arguably, America has departed from ECL but America is distinguishable from Malaysia on points of its historical and cultural development,more advanced society equiped with a codified Bill of Rights, proved the country's willingness to bring the law one step further by compromising more rights protection. By making our own Common Law system, will it gurantee much effective protection of rights of current calamity?Take into consideration the multi-cultural and religious society , the ECL meddle the extent when can Syariah Law affect non-Muslim's interest in Malaysia. Hence the ECL should stay in order to ensure the protection of non-Muslim's rights not infringed by the whims of the politicians. When superiority is given to Syariah Law, it will undoubtedly turn Malaysia formerly a secular state into a Islamic state,which many can't bear the consequence of further impediment of human rights in Malaysia. It's envisaged modern democracy would be redundant if parliament is absolutely bound by Islamic laws during the process of legislating.

Besides that,the legal fraternity suffered further dependency at recent month when the quota for CLP examination has been reduced to a sheer 7%,making it totally impossible for LLB graduates to praticise locally. Amending the quota was trully a political based move as it provides immense opportunity for incompetent local law graduates (exclusive external LLB) particularly from UM and UKM to monopolise the legal industry. If MCL takes priority, government subsequently will try to revoke LLB recognition off its board of higher education in a form of eradicating UM and UKM competitors. Unsurprisingly, Malaysia government has already started this move on other profession, in an example medicine and engineering foreign degree.

In a nutshell, amending laws for the benefit of certain group can distort country's social economy causing lesser professionals to contribute service locally and prospect business opportunity will drop tremendously as businessman scouring other country to make investment,trying to evade possible political meltdown.

On an entire different note, analysis suspect the controversial flag burning photo at Batu Buruk was photoshopped!

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