Home Latest News Current Affairs YBAM Say No to Stopping Recourse to English Common Law and Recommendation to Apply Islamic Law as Replacement

YBAM Say No to Stopping Recourse to English Common Law and Recommendation to Apply Islamic Law as Replacement

Monday, 27 August 2007 14:31

Young Buddhist Association of Malaysia (“YBAM”) express our grave concern over the statement of Chief Justice?Lord President?Federal Court Judge Tun Ahmad Faruz (please correct to the title & name proper) to stop recourse to English Common Law and apply Islamic Law as replacement. If his suggestion be given effect, the Malaysian Legal System will consequently be changed contrary to the consensus of our forefathers over nation building.

The consensus of our forefathers over nation building has been enshrined in the Federal Constitution. Federal Constitution set up the Malaysian Legal System and provide for the establishment of Civil Court, Criminal Court and Syariah Court. Article 160 of the Federal Constitution defines “Law”to include written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof. The Civil Law Act, 1956, in effect makes the English common law and rules of equity the basic law to which recourse must be had if there is no written law in force in Malaysia with necessary adjustment to suit the local circumstances and custom. The Civil Law Act, 1956 is therefore part of the documentary evidence of the consensus of our forefathers over nation building. Accoring to Federal Constitution, the Federal Parliament cannot make laws dealing with Islamic law (except now for the Federal Territory) as Islamic law is a State responsibility. In short, written Islamic law enacted by State Assemblies and legally binding Syariah Court Judgments & Precedents form the basic source of Islamic law applied in Syariah Court, while written criminal law (Penal Code) legislated by the Federal Parliament and legally binding Criminal Court Judgments & Precedents form the basic source of Criminal law applied in Criminal Court. Lastly, written civil law legislated by the Federal Parliament, legally binding Civil Court Judgments & Precedents and English Common Law form the basic source of Civil law applied in Civil Court. Under the present set up as prescribed by the Federal Constitution, Islamic law is not the basic source for all courts in Malaysia. The present status of law in Malaysia is the end result of Malaysia not being an Islamic State.

Stopping recourse to English Common Law and recommendation to apply Islamic Law as replacement not only allow the application of Islamic law on non-moslem but promote Islamic law as the basic source of civil law applied in Civil Court. It marks the change of Malaysian Legal System to the effect that Malaysia has been made or rather moving towards an Islamic State. There is no significant difference between the Civil Court and the Syariah Court. This is contrary to the consensus of our forefathers over nation building. YBAM firmly SAY NO to such a retrogressive move.

In the light of the fact that recourse to English Common Law shall only be made by Civil Court Judges if there is no written law in force in Malaysia in respect of the matter concerned with necessary adjustment to be made in its application to suit the local circumstances and custom and there is no adverse flaws in such a practice, YBAM are therefore of the view that the present state of law shall remain as status quo.