10/31/2017 The Malaysian Bar - PRESS RELEASE: Common Law

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PRESS RELEASE: Common Law
28th IPBA Annual Meeting and Conference, Manila (14
Contributed by Ambiga Sreenevasan to 16 Mar 2018)
T h u r s d a y , 2 3 A u g u s t 2 0 0 7 0 3 :0 6 a m Organised by the Inter-Pacific Bar Association ("IPBA"), this
event will be held at the Shangri-La at the Fort, Bonifacio
Call to replace common law baseless Global C ity, Philippines, from 14 to 16 Mar 2018 (Wednesday
Bar Council disturbed: Ambiga to Friday). C lick on the link above for more details.

The Bar C ouncil is disturbed to read reports published in

todays papers containing remarks made by the C hief
Justice questioning the need to use English common law
after 50 years of independence and seeking its abolition. It
is an issue that has been raised before in 2004, and now that it has resurfaced, some explanation
is necessary.

The Federal C onstitution is the supreme law of the land as provided in Article 4(1). This Merdeka
C onstitution also formed the basis when Malaysia was established on 16th September 1963 and
North Borneo and Sarawak joined the Federation with the common law system having pride of
place.

The C ourts are tasked with the responsibility of interpreting the Federal C onstitution. In
undertaking that duty, common law principles are applied. The cold print of the words used in the
C onstitution and its spirit are developed by judges deciding cases within the structure of the We have 331 guests and 127 members online
common law system. Interpretation of the C onstitution is not undertaken in a vacuum.
Malaysian Bar: F ederal Court's decision not in line with
Commonwealth
The body of Malaysian law comprises the Federal C onstitution (as the supreme law), written law,
that is, Acts enacted by Parliament, and judge made law that is, case law. Subject to being
declared as unconstitutional by a C ourt, Parliament has a free hand to enact laws. In the exercise Steven Thiru: Federal Court's decision not i
of its legislative function, Parliament has passed hundreds of statutes since Merdeka: some of
which are modelled on or inspired by foreign statutes while others are purely domestic without
any foreign parallel.

Judges have applied the laws of Malaysia in the thousands of cases that have been determined in
all branches of the law in all the C ourts of Malaysia for the past 50 years. A significant portion of
them have been reported in our law reports, and form the large corpus of case law which is an
integral part of the laws of Malaysia. These reported cases operate as precedents for future
cases, so that like cases are decided in a like manner to avoid injustice and thereby promoting
reliability and certainty.

The C ivil Law Act, which came into force in Malaya on 7th April 1956 and therefore prior to
Merdeka, provides for the reception of English common law and the rules of equity, but only
insofar as the circumstances of the States of Malaysia and their respective inhabitants permit and
subject to such qualifications as local circumstances render necessary: see Section 3 (2). Thus,
the Malaysian C ourts have a wide discretion whether to accept any English common law principle
or rule of equity. When Malaysian judges accept such principles, they become part of Malaysian
common law and Malaysian law is developed in that manner. Nearly every British colony has
adopted the common law system inherited from the British. But in each country, the C ourts
develop their own common law which may not be identical or similar to English common law. It is Malaysian Bar Acquires Wisma Straits Trading
in this flexibility that lies the strength of the common law. Thus, Malaysian common law differs in International Mediation Summit 2017 | Bar C ouncil Malaysian
many respects from Indian common law or Australian common law. Without doubt, the common Mediation C entre and C hina C ouncil for the Promotion of
law system is one of the greatest and most respected legal systems in the world. It also forms International Trade Sign MoU and C ooperation Agreement
the basis of public international law. There is no other comparable legal system that commands Bar C ouncil Library Update (25 Oct 2017)
such universal respect among jurists. 293 cases filed at Special C ourt for Sexual C rimes Against
C hildren (Updated)
In these circumstances, it is unfortunate for the head of the Judiciary, which institution applies Disciplinary Orders (September 2017)
Malaysian common law principles in all the C ourts of the land daily, to state publicly and without Police start preparations for general election
acceptable basis that the common law system should be replaced. What then is the system Malaysian Bar seeks order that Raus, Zulkeflis appointments
suggested? What is to happen to the corpus of Malaysian case law painstakingly built up by are unlawful
distinguished Malaysian judges is it to be discarded overnight? What about the commercial Press Release | Legal Action Filed to Seek Declarations that the
community including foreign investors; for whom - the common laws certainty, flexibility and Appointments of the C hief Justice and President of the C ourt of
adaptability have made it a favourite and for whom any suggestion of change will be a source for Appeal are Unconstitutional and Void
concern? Sijil Annual 2018 Application Deadline Extended to 30 Nov 2017
Election Rules
There is little to be gained in changing a system of law that is respected and has worked well for C losure of E-Filing Service Bureau C ounters in C ourts Across
50 years in our country, and hundreds of years in other jurisdictions. Peninsular Malaysia for Lawyers and Government Agencies
In Memoriam | Woo Wei Kwang (6 Oct 1974 to 10 Oct 2017)
What is required instead is an examination and positive change in the system that administers Press Release | Abolition of the Mandatory Death Penalty No
that law so that it inspires public confidence and ensures a strong and independent judiciary. More Delay!
Update on E-C ourts | E-Filing and Digital C ertificate and Token
Ambiga Sreenev asan List of Members without Sijil Annual/Practising C ertificate for
President 2017 as at 29 September 2017
Malaysian Bar
Applause in court: farewell to Lord Judge, the judge's judge
22 August 2007
Minister: Study proposal on switch to Syariah law thoroughly

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10/31/2017 The Malaysian Bar - PRESS RELEASE: Common Law
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Siri Pemikiran Kritis (Segmen Pertama), Sessi Pertama (36
Comments (5) comments)
Sub s crib e to this co m m e nt's fe e d Federal C ourt dismisses Lina Joy's appeal (35 comments)
OPINION: Why I support the LPA amendments (31 comments)
Our President
Video links C J to 'appointment fixing' scandal (29 comments)
written by Tan Peek Guat, Thursday, August 23 2007 04:37 am
Amaran kepada MC A (27 comments)
Ms Ambiga, Judge gives lawyer dressing-down over attire (26 comments)
2008 Bar C ouncil Subscription (24 comments)
We praise God for your existence. Penang Bar passes resolution on SRO Enforcement (23
comments)
Your demonstration of SENSE AND SENSIBILITIES has indeed helped us to be Lovely OPINION: LPA Amendments - "Stupid is as stupid does" (Forrest
Malaysians. Gump) (22 comments)

Being our President, you are our 'Head' and your body is twelve thousand strong; and on the
Re:PRIVATE C AVEAT by FATIN DAYANA BINTI YAHYA
basis of your chair, and the genuine ELEC TIONS carried out for your appointment, we support
you and thank you for your stand. PRIVATE C AVEAT by LINDA BINTI MOHAMMAD UDIN
AMENDED C AVEAT FORM - BM VERSION by NOR AZIMAH BINTI
Tan Peek Guat MD BOHARI
'May' can mean 'mandatory' - C ourt of Appeal by Shaharudin B
Ali
Excellent Re:Leave of court to enforce Adjudication Decision by VIMALAN
written by Shanmuga Kanesalingam, Thursday, August 23 2007 11:52 am A/L S. VISVALINGAM
The link between access to justice & rule of law by Shaharudin
This is classic statement of what our law is. Marvellous. B Ali

The worrying thing is that there was an indication that the replacement to the common law show last 4hrs - 24hrs
tradition would be Islamic and customary laws, and this is echoed by Tan Sri Gani Patail's There are no upcoming events currently scheduled.
comments in Utusan today entitled "Undang-undang Syariah terbaik - Gani". View Full C alendar

These constant efforts to force theological laws onto our democratic way of live must be
stopped. It is causing so much unease and unhappiness.

Shanmuga Kanesalingam 1

2 3 4 5 6 7 8

Well Done! 9 10 11 12 13 14 15
written by Ding Chu Teck, Thursday, August 23 2007 02:02 pm
16 17 18 19 20 21 22

Syabas! Sdri Ambiga, we are indeed proud to have you as our President. Keep it up! 23 24 25 26 27 28 29

30 31
Ding C hu Teck

C ircula r No 245/2017 | C ivil Advo ca cy C o urse , Kua la Lum pur (20

Lesson in History a nd 21 Ja n 2018)
written by Justin Johari Bin Azman, Thursday, August 23 2007 03:04 pm C ircula r No 244/2017 | Me dica l La w Litiga tio n in Ma la ysia
R e ce nt
C ha nge s (28 No v 2017)
I think Tuan Haji Sulaiman's interview in the July issue of 'Off The Edge ' magazine had dealt C ircula r No 243/2017 | Ma la ysia n Ba r Acquire s W ism a Stra its
with this issue quite extensively and points raised were very pertinent in understanding both Tra ding
sides of the argument. C ircula r No 242/2017 | C rim ina l La w C o nfe re nce (25 No v 2017)
C ircula r No 241/2017 | R e a d Le ga l C ra ft a nd Such (Issue 6)
Do get a copy and read. C ircula r No 240/2017 | UP DATE | Ma la ysia n W o m e n La wye rs
C o nfe re nce : Enha ncing Le a de rship
Justin Johari Bin Azman C ircula r No 239/2017 | Brie fing o n Le ga l P ro fe ssio n (Gro up
P ra ctice ) R ule s 2017
Fre e do m o f Spe e ch a nd Ex pre ssio n in a Functio ning De m o cra cy
We dont follow common law blindly! (23 No v 2017)
written by Mohd Noh Nasira, Thursday, August 23 2007 03:23 pm C ircula r No 238/2017 | Se rie s o f Se m ina rs o n Em plo ym e nt La w (7
No v 2017)
In a recent case of Kris Angsana Sdn Bhd v Eu Sim C huan [2007] 4 C LJ 293, the argument by C ircula r No 237/2017 | Ma la ysia n Ba r a nd The La w So cie ty o f
the appelant at page 311:- Singa po re : Ma la ysia -Singa po re Ba r Sum m it

SR O 2005 (English) (137201)

"The last legal issue canvassed by the appellant was the position of the English common law in
R ule s o f C o urt 2012 (111667)
relation to piling and excavation works on its own land as enunciated in Acton v. Blundell and
C a ve a ts (78726)
Another [1843] 152 E.R. 1223. The appellant had submitted that it was part of Malaysian
common law, and that being so it had absolved the appellants from liability for a natural and Sa m ple Le tte r o f C o m pla int / R e gistra tio n Fo rm to lo dge a

ordinary use of its own land. In brief the appellant had submitted that the principle that C o m pla int (76824)
R e dbo o k pa m phle t (Ma la y) (69974)
emanated from the above case was an absolute defence".
R e dbo o k pa m phle t (English) (68452)

The C ourt of Appeal then held at page 313:- R ED BO O K: Kno w Yo ur R ights (English) (59797)
BUKU MER AH: P o lis Da n Ha k -Ha k Asa s Anda (51849)
"With respect to the archaic view of Acton v Blundell the realities of modern life must not be R e dbo o k pa m phle t (45960)
discounted. High density of population in popular residential areas in Malaysia is now the norm. Ija za h Sa rja na Muda Jurisprude ns - R isa la h P ro gra m (45337)
Houses may have to be built very close to each other, at times on hilltops, or even hugging
those slopes. To allow the incoming new house owner or contractor to take away the ground C risis in the Judiciary
support of adjacent buildings, justifying such acts on natural user of his land, and thereafter Lina Joy v Majlis Agama Islam Wilayah Persekutuan & 2 Ors
blaming gravity and soil subsidence (or de-watering) as an operation of the laws of nature, is 2005 [C A]
not in sync with reality. We are no more a society that lives miles apart like the olden days, but Video links C J to 'appointment fixing' scandal
in one where a sneeze is never out of the neighbour's earshot; and where likewise unreasonable Malaysian Bar outraged by a woman detainee stripped naked
activities may touch the life of a neighbour. To deny the rights of neighbours, and allow a and forced to do ear squats
wrongdoer to wreak havoc and heartache, would militate against the very fabric of modern life LAW & REALTY: Stamp duty payable
and collective ideology of a multi-faceted society. In a nutshell the case of Acton v Blundell Walk for Justice: "When lawyers walk, something must be very
would be out of keeping with the current existing law of torts. As it stands, if no reasonable wrong"
steps were undertaken by the wrongdoer to ensure that no damages would befall the LAW & REALTY: Tenancy Agreement
neighbours, and did indeed suffer them, an actionable tort of negligence may await him" The Role of Public Interest Litigation In Promoting Good
Governance in Malaysia and Singapore
Mohd Noh Nasira Fawziah Holdings Sdn Bhd v Metramac C orporation Sdn Bhd
2005 [C A]
Jeffrey Jessie: Recognising Transexuals by Honey Tan Lay Ean
Nazri launches the Red Book

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10/31/2017 The Malaysian Bar - PRESS RELEASE: Common Law
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