Should English Law Be Abolished?

Unwritten law is a portion of Malaysian Law which is not found in any written Federal or
State constitution and not made by Parliament or State Legislatie Assemblies! "his law can
be found in cases decided by the courts and local customs! English law is one of the
unwritten law! #t was introduced informally and indirectly through the $esidential System
during the British interention! "oday% there was a debate about whether English Law should
be abolished or not as our country has been independence for oer &' years! "he idea of
abolishing English Law suggested by the late #slamic Law e(pert) Professor Ahmad Mohamad
#brahim! *e would li+e to discuss further about the Adantages and disadantages of
abolishing English Law!
"he reason for English law to be abolished are Local law should be used instead of
English Law! Local law e!g! #slam Law should be placed at its most ,ualified position as in the
late Professor-s ob.ectie as stated by the former /hief 0ustice "un Ahmad Fairu1 Shei+h
Abdul 2alim! According to him% our country% Malaysia might prefer more decisions made by
the #slamic courts% and it would be the .udges to decide whether they accept these principles
or not! 2e also stated that Malaysia hae now many legal e(perts who can proides their
opinion in soling the matters! #t would meant that the courts cease to refer to English law! By
that% only local courts decision and circumstances will be referred! "his shows that #slamic law
should be placed in higher position than a man3made law and our nations has many legal
e(pertise to be referred in soling the disputes! "his can be supported by in the case of
Patimah binti 2aris 2a.i #smail bin "amin% the court held Muslim law is a part of the law of
0ohore! Section 4 of the /iil Law Act 56&' should be repealed in order to fill the lacuna in our
law according to our local circumstances!
2oweer% English law tend to hae general application as it is administered by the
secular tribunals as it played a role in Malaysia Legal System! A number of specific legislation
was modeled on #ndian Legislation under the adice of British administrators! #t is act as a
based for English law when it introduced in the Malay states for e(ample) the codification of
the /ontracts Act 56&7 was modeled after the #ndian /ontacts Act 589: passed by Malaysia
Parliament! "he .udges in court made the decision established by the British administrators
was also an indirect way of English law was introduced in the Malay states #t also said if
English law was to repealed% what law should we referred to? As our laws in Malaysia was
made by English law passed by Parliament! "his shows that many laws in our land deried
from English /ommon Law! *ithout foreign law% we cannot sole a disputes inoling foreign
inestors as English law has been regarded as strength of a country-s credibility in the eyes of
the world!
Malaysia needs to deelop their own common law as being an independent country for
&' years as our local cases are cited in our courts! Former /hief 0ustice% "un Ahmad
regretted that Malaysia still haen-t escaped the clutches of colonialism yet because the
enforcement of section 4 and & of /iil Law Act despite hae achieed independence for &'
years! Many e(perts tend to interpret these sections as we are duty to be bound by English
Law in case of lacuna or gap in our local law! "he former as+ed this four ,uestions to the legal
fraternity) #s English law the best option?% Are our legal e(perts still lac+ing?% ;oes it mean
that our legal e(perts still shac+led under colonialism?% or #s our legal e(perts still bereft in
deeloping a legal system better than English law?! 2e also strongly suggested that our local
courts decision should be referred by applying our own law and giing priority to the local
conditions of the citi1ens! "hus Malaysia /ommon Law will be established in our country!
#n contrast to that% According to section 4 of the /iil Law Act 56&') English law and
rules of e,uity shall applied in <a= 3 Peninsular Malaysia on 9
th
April 56&'% <b= > Sabah with
statutes of general application on 5
st
;ecember 56&'% and <c=3 Sarawa+ with statutes of
general application on 5:
nd
;ecember 56&'! According to the case of Commonwealth of
Australia v. Midford, it was held the deelopments of common law after 56&' may well be
applicable in Malaysia but it must be suitable to local circumstances! "he two most important
factors from the case in applying English law are) it must only be applied in the absence of
local legislation and it must be suited to local circumstances! #t shows that English law can
only be applied when there is a lacuna in our law and it must be suited to local situations! #t
neer touched on personal matters such as religion! Malaysian /ourts also has a wide choice
whether to accept English law! Malaysian law is deeloped by that manner when the
principles is accepted% it becomes part of Malaysian common law!
According to the late professor% if section 4 of /iil Law Act 56&' will not repealed% then
it is sufficient to amend the proisions! 2e suggested) ?Sae so far as other proision has
been made or may hereafter be made by any written law in force in Malaysia% the /ourt shall
apply Malaysian common law as administered by Malaysian courts ta+ing into account the
religion and custom of the parties!?! "he reason behind his suggestion are it would encourage
more of our .udges% draftmens% legal practitioners and academics in an effort to ma+e
Malaysian /ommon Law!
But% when the principles are incorporated into our legislation becomes Malaysian law%
not English law! Many acts% ordinances% and amendments are deried from English law and it
becomes Malaysian law in our country! According to the late Prof G.W. Bartholomew in his
boo+% The Commercial Law Of Malaysia@ "he need to apply English law only arises when it
is suitable to local circumstances and in the absence of local legislation! "his can be
supported in the case of Yong Joo Lin, Yong Shook Lin, and Yoo Loo Lin v Fung Poi
Fong% where the court held) Principles of English law hae for many years been accepted in
the Federated Malay states where no other proisions has been proided by statues!
#n conclusion% *e beliee English law should not be abolished because the law hae
uniersal or general application% it must fulfill the two conditions to be referred which is
suitable to local circumstances and to fulfill the lacuna in local legislation! *e also beliee that
without English law% there is no legislation or een Federal /onstitution in our country as our
local laws such as Penal /ode was copied from the English law which #ndian Penal /ode
58'7!
LAW 416
PRINCIPLES OF ENGLISH LAW: AN ANALYSIS
SHOULD ENGLISH LAW BE ABOLISHED?
NAME: MUHAMMAD FAISAL MUSTAQIM BIN
MOHD ARIFF (2013!3!13"
SITI #HADI$AH BINTI A%MI (2013
GROUP: BM2461L
LECTURER: MADAME E&AWANIE RAHAYU
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