There seems to be some misunderstanding and misrepresentation of my earlier writing “Time to malaysianise common law system” (The Star, 18.09.07. Title in IKIM website: “Malaysian Common Law”). I am grateful to those who responded to my short article. However, allow me to clarify and re-examine a few things. When I used the word ‘Malaysianization,’ I meant the incorporation of all good values found in all religions, customs and cultures of all races with regard to the formation and development of the Malaysian common law (MCL). To do this, my emphasis was that, the foundation for such must be grounded in Islam and Malay customs primarily because Islam is complete and because it constitutes the basic law of the land as affirmed inter alia by the Appeal Court’s decision in the case of Ramah v Laton (1927).
The inclusion of other values from other traditions is not just a courtesy. It is a necessity. These values, however, must not be theological in nature, but rather ethical and moral. There can never be any parallelism in the theology of various world religions. Indeed, it is this theological element which shapes one’s worldview. But there are bisecting points of commonality among these religions in the sphere of ethics and morality, though not as comprehensively detailed by Islam. It is on this basis that we Malaysians should agree and concentrate towards establishing and developing our own common law.
Therefore, when I said a Malaysian common law system must be based particularly on Islam, clearly we are not referring to the theological elements of the religion, but we are restricting it to the ethical and moral values, which I dare say non-Muslims would embrace. If one had carefully read my argument, then he/she would not have become confused or perplexed; nor have I ever contradicted myself or acted in bias.
If one gets the impression that the formation of a MCL should revolve around the worldview of Islam, then he/she would be correct. But again, it must not be understood in any sense detrimental to his/her own religion, whatever it may be. Bear in mind that reference to Islam here merely refers to its ethical and moral values, and not to any idea of a theological super imposition of any kind. In truth, Islam prohibits any form of coercion!
As we share a lot of commonalities with regard to ethical and moral values, no one should feel threatened. I am yet to discover any good value which is considered good in one religion yet evil in another. So why all the noisy hue and cry? MCL will not address the realm of theology. It will be confined to ethics and morality, which often times, in Islam, result in the formation of legal principles. Fear and insecurity on the part of the so called educated is a result of prejudice and deliberate misrepresentation.
Why is it that many people find it difficult to accept historical truth? We tend to be bad historians, especially among legal practitioners. I would recommend that we read more history books to learn more about our past. Muhammad Iqbal, a prominent thinker of the sub-continent wrote that we cannot detach ourselves from history as it is history which gives us our identity.
The basic law of the land is not the Federal Constitution. If one were to accept that it is, this implies that our Malaysian history only began on Independence Day, which is absurd. Indeed the history of the Malay world began much earlier. As already stated above, the fact that Islam and Malay customs are the lex loci (law of the land) has been affirmed by the English Judge in Ramah v Laton.
Earliest records show that Islamic law was practiced in Terengganu, as early as the 14th century, proof of which is inscribed on a stone dating back to 1303. In the early Malacca kingdom, the Malacca Laws clearly reflect the encompassing influence of Islam in modifying Malay customary laws, providing many provisions relating to marriage and divorce, commercial transaction and land law. When the empire fell to the Portuguese in 1511, the texts of the Malacca Laws were adopted, with modifications, in Pahang, Johore and Kedah. At the beginning of the 20th century, Johore in particular, adopted Islamic law compiled in Turkey and Egypt, and subsequently translating them into Malay. All these events predate 31st August 1957 – for those who believe that our history began here.
So, this is what I meant when I said “the basic law of any nation must always be associated with real truth and justice.”
I am inclined to say that even our Federal Constitution was drafted based on this ‘basic law of the land’ principle. It officially testifies to historical truth. Many constitutional Articles affirm this, like Art. 3 where Islam is made the religion of the Federation; and the Ninth Schedule, where it clearly recognizes Islamic Law as one of the legal systems to be perpetually practiced in this country.
The same Constitution guarantees the right of other communities. The protection to all races and religions in Malaysia was proportionately accorded after having considered the social circumstances of our multiracial population. If there are more privileges given to any particular group, it was due to the acknowledgement of the same historical truth, translating a form of social contract, reflecting justice for all.
Therefore, to amend the Civil Law Act 1956 (CLA) for the sake of MCL is not going to “offend the spirit of the Federal Constitution in our multi-racial, multi-religious and multi-cultural society” as no parties are going to be substantially negatively affected. Remember, we are referring to the ethical and moral values common to all, not to theological matters where we differ and have agreed to disagree.
Take for example, the case of sodomy. In England, this is not considered a crime both ethically and morally if both parties consent to it; even some may consider sodomy natural. Similarly with the rampant cohabitation out of wedlock or the ‘common law wife’ practice, regarded as something natural and acceptable to the society there. Are these values agreeable to our ethical and moral norms, regardless of what religion we belong to? Imagine if any of our judges were to legitimize the aforementioned under the pretext of following English Common Law (ECL)!
Perhaps there is no urgency to repeal s. 3 of the CLA altogether. It is sufficient to amend the provision, according to the suggestion by the late Prof. Ahmad Ibrahim:
“Save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia, the Court shall apply Malaysian common law as administered by Malaysian courts taking into account the religion and custom of the parties.”
It is certainly encouraging if more and more of our judges, draftsmen, legal practitioners and academics make efforts to actively evolve and develop MCL. Reiterating my position, our legal fraternity should change their attitude to no longer be in hypnotic awe of ECL, believing it to be so advanced and sophisticated, or portrayed as being ‘open-minded’ and ‘free.’
Prof. Hickling, in his work entitled ‘Malaysian Law’ writes that to glorify ECL will make us mad:
“… but whatever system is to be adopted should grow out of and be in harmony with the nature of the people it is designed to serve, for otherwise it will work to injustice. For those English and American lawyers who see in “Our Lady the Common Law” a figure of romance so powerful, as to convert the common law itself almost into a religion. That way, madness lies.”
Therefore, we must strive to establish and build up our own MCL according to our mould to the best of our abilities. Religion should not be a hindrance.