Abolish common law system – unbecoming of Fairuz as CJ as well as highly irresponsible to divert attention

The call by Chief Justice Tun Ahmad Fairuz Abdul Halim for the abolition of the common law system and favouring its replacement by Islamic law system is most unbecoming of the highest judicial officer of the land sworn to defend and uphold the Constitution and the Merdeka social contract.

Fairuz was also highly irresponsible in trying to divert attention from his failure to institute judicial reforms to restore public confidence in judicial independence, integrity and meritocracy.

In his speech opening a seminar on the thoughts and academic works of the late Tan Sri Ahmad Ibrahim on Tuesday, Fairuz said (as reported by Utusan Malaysia’s front-page headline news):

Muka Hadapan

Mansuh Common Law — Ketua Hakim Negara mahu perundangan lapuk Inggeris diganti
Oleh Zabry Mohamad

PETALING JAYA 21 Ogos — Ketua Hakim Negara, Tun Ahmad Fairuz Sheikh Abdul Halim hari ini mencadangkan rujukan kepada Common Law Inggeris dimansuhkan daripada undang-undang sivil negara ini kerana ia menggambarkan minda pengamal undang-undang tempatan yang masih terjajah.

Beliau juga menegur sesetengah pengamal undang-undang yang terus mengguna pakai Common Law Inggeris dalam kes-kes perbicaraan tertentu.

Sambil menyifatkan mereka sebagai ‘katak di bawah tempurung penjajah’, Ahmad Fairuz menegaskan, gejala tersebut tidak seharusnya berlaku selepas 50 tahun Malaysia mencapai kemerdekaan.

Menurut beliau, setelah negara merdeka selama lima dekad, pakar-pakar perundangan tempatan seharusnya sudah mampu mewujudkan undang-undang yang lebih bermutu dan sesuai dengan keadaan semasa.

”Sudah 50 tahun kita merdeka, sudah 50 tahun kita terlepas daripada cengkaman penjajah, tetapi Seksyen 3 dan 5 Undang-Undang Sivil 1956 masih kekal dalam perundangan kita.

”Apakah ini petanda bahawa Common Law Inggeris itu adalah undang-undang yang paling baik di dunia? Apakah ini petanda bahawa pakar undang-undang kita masih di bawah tempurung penjajah?” soalnya.

Ahmad Fairuz berkata demikian ketika berucap merasmikan seminar mengenai pemikiran ilmiah dan sumbangan Allahyarham Profesor Emeritus Tan Sri Ahmad Ibrahim anjuran Institut Kefahaman Islam Malaysia (IKIM) di sini.

Turut hadir ialah Pengerusi IKIM, Tan Sri Ahmad Sarji Abdul Hamid dan Ketua Pengarah institut itu, Dr. Syed Ali Tawfik Al-Attas.

Menurut Ketua Hakim Negara, kegagalan memartabatkan perundangan sendiri seolah-olah memperlihatkan Malaysia sudah ketandusan kepakaran sehingga terpaksa meminjam daripada Common Law Inggeris sejak tahun 1957.

Katanya, di Malaysia, Common Law Inggeris masih dirujuk dalam kes-kes mahkamah jika tiada akta undang-undang tempatan yang boleh dipakai sebagaimana terkandung dalam Seksyen 3 dan 5 Akta Undang-Undang Sivil 1956.

Seksyen 3 akta berkenaan memberi laluan kepada mahkamah negara ini untuk mengetepikan Common Law Inggeris, mengutamakannya atau mengambil kira keadaan setempat dalam membuat penghakiman.

Seksyen 5 akta yang sama membenarkan pemakaian seluruh undang-undang perdagangan yang ditadbir di England melainkan jika terdapat undang-undang tempatan.

Ahmad Fairuz memberitahu, sudah tiba masanya kedua-dua seksyen tersebut dipinda dengan memansuhkan semua rujukan kepada Common Law Inggeris dan undang-undang serta kaedah-kaedah ekuiti yang ditadbirkan di England.

Sebagai ganti, menurut beliau, pengamal undang-undang mungkin boleh merujuk kepada keputusan-keputusan mahkamah di negara ini yang mengikut undang-undang tempatan dan memberi keutamaan kepada keadaan di negeri-negeri di Malaysia.

Dalam hubungan ini, beliau mahu pakar undang-undang di Malaysia bersepakat sama ada mahu meneruskan amalan merujuk kepada Common Law.

Jika sebaliknya, tegas beliau, pendekatan baru perlu diambil bagi menggantikan Common Law Inggeris yang dilihat sudah sebati dalam perundangan negara.

Beliau menambah, mungkin juga sudah tiba masanya untuk memartabatkan undang-undang Islam bukan sahaja dalam perundangan negara tetapi juga perundangan antarabangsa.

Sekiranya idea itu diterima, jelas beliau, sudah pasti keharmonian undang-undang sivil dan undang-undang syariah dapat dicetuskan sehingga memberi impak maksimum kepada masyarakat.

Pada majlis itu, Ahmad Fairuz turut melancarkan buku berjudul Permata Pengislahan Perundangan Islam yang merupakan biografi Allahyarham Ahmad Ibrahim.

Ahmad Ibrahim ialah tokoh perundangan yang banyak menyumbang kepada pembangunan perundangan di negara ini khususnya undang-undang Islam.

Beliau merupakan salah seorang peguam dalam perbicaraan kes Natrah, wanita keturunan Belanda yang dibela oleh keluarga Islam dan kemudian dituntut semula oleh keluarga asalnya. Perbicaraan kes Natrah mencetuskan rusuhan di Singapura pada tahun 1950.

Allahyarham yang meninggal dunia pada usia 82 tahun pada 17 April 1999 merupakan profesor undang-undang di Universiti Malaya dan Universiti Islam Antarabangsa Malaysia.

Is this a speech that should be made by the Chief Justice, knowing that it will create deep divisions and dissensions not only among the judiciary but also among the people for violating the Merdeka social contract as well as scaring off foreign investors — apart from going against his oath of office to defend and uphold the Constitution.

If former Lord President Tun Salleh Abas could be indicted and sacked for, among other things, disregarding the secular basis of the Malaysian Constitution and advocating Islamisation of Malaysian legal system, could Fairuz similarly be referred to a Judicial Tribunal for a similar offence?

Although the motive and timing of Fairuz’ call is most questionable, the call to abolish the common law and increasingly remove the secular character of the Constitution must be taken seriously.

In the past decade, there had been mounting calls for the abolition of the English common law and its replacement by a Malaysian common law based on the Islamic law system.

There have even been proposals as to how this transformation could be effected, including amendment of the Constitution –

  • to provide that rules of Islamic Syariah as a source of law (as in most of the Arab countries) or as the main/principal source of legislation (as in Egypt and Yemen) or the Quran and Sunnah as the main source of legal rules (as in Saudi Arabia);
  • to retain existing laws and legal system, except the laws that on a studied scrutiny are found to be inconsistent with or repugnant to the Quran and Sunnah and, therefore, rendered inoperative; or
  • To make all Islamic injunctions as the basis of all laws.

    Does Malaysia want to go down the road to abolish the common law system and to start the process to increasingly replace the secular legal system with an Islamic law system?

  1. #1 by Libra2 on Thursday, 23 August 2007 - 4:13 pm

    Towards establishing another Taliban State.

  2. #2 by justiciary on Thursday, 23 August 2007 - 5:24 pm

    No wonder Malaysia is sliding into the abyss of oblivion as more and more leaders of the real and genuine “katak di bawah tempurung’ mindset assuming power.

  3. #3 by shortie kiasu on Thursday, 23 August 2007 - 5:37 pm

    Why is the CJ obsessed with abolishing Common Laws? What is his hidden agenda?

    He has a lot of better things to do and to improve the performance of his judiciary, or he finds himself incapable of focusing on the urgent things at hands?

  4. #4 by Toyol on Thursday, 23 August 2007 - 5:38 pm

    Can DAP and Opposition bring this to the masses in small towns and rural areas and inform the Chinese of the repercussions of this? Can the Chinese, Indians and other races accept this unconsitutional behaviour?

    I think the time has come to either make a stand, come what may be or leave this country for good! Maybe the Govt want this last recourse since there have been so much expose of their wrongdoings.

  5. #5 by MY VIEW on Thursday, 23 August 2007 - 7:51 pm

    This CJ should be sacked immediately. I have lost my confidence in him. I am sure many malaysian would feel the same. How can there be justice when the chief Justice do not believe in justice.

  6. #6 by St0rmFury on Thursday, 23 August 2007 - 9:09 pm

    DAP should focus more of their efforts to reach out to the rural areas and also the younger generation (the wild cards). Urban dwellers are mostly already aware of the farce that’s been going on and they shouldn’t be as ignorant as to vote for BN again.

  7. #7 by mendela on Thursday, 23 August 2007 - 9:57 pm

    MT blogger Zul Kera said // That particular is no other than Dato Hashim,The Federal court Judge.Recently his name was submited to Pak Lah and Ruler for the appointment as Chief Justice.What a joke Tun Fairuz.Are you still rec. instruction from Yusuff Chin.
    Dato Hashim is a fun loving person and he is the only judge who smoke Cohibar Cigar.You can always find him in The Vegas in Jalan Imbi.

    Now he is driving a porche car given by a lawyer who won his case with the help of Dato Hashim. //

    Are above true? Vegas at Imbi? Porche? Cohibar?

  8. #8 by undergrad2 on Thursday, 23 August 2007 - 10:15 pm

    You cannot ‘abolish’ the English common law! It has been historically part of our law – like it or not. But he is right if he means law evolves and English common law is still relied on to solve cases if no local case exists.

    The U.S. has its own laws but English Common Law (judge made law) is still applicable where none exists to help solve cases.

  9. #9 by undergrad2 on Thursday, 23 August 2007 - 10:18 pm

    It started with Mahathir who made fun of the law of natural justice and the English common law. But he is not a lawyer but a medical doctor and a politician. One could understand why he says things like that – but a lawyer or a judge making the same statement is ridiculous.

  10. #10 by undergrad2 on Thursday, 23 August 2007 - 10:25 pm

    The Federal Constitution as amended allows for a double-tracked justice system. As if that is not controversial enough, a land mine for lawyers and judicial officers to walk through, UMNO is now rattling its saber with threats to do away with secular law and its own civil and criminal law based as it is on the English common law? This is mere rhetoric and we know it!

  11. #11 by sheriff singh on Thursday, 23 August 2007 - 10:29 pm

    With such mindset, no wonder Lina Joy didn’t stand a chance.

  12. #12 by pwcheng on Thursday, 23 August 2007 - 10:37 pm

    Everybody Muslim leader is trying to play the Muslim card for reasons best known to themselves. It has now overflow into the judiciary and GOD knows what what type of justice the highest court will dispense for a non Muslim challenging a Muslim if the majority of judges are Muslims. The verdict, your guess will be just as good as mine.

  13. #13 by ENDANGERED HORNBILL on Thursday, 23 August 2007 - 11:16 pm

    Abolish common law? Simply because of its British heritage? Because it reminds Malaysians of their colonial past? CJ Fairus could quite suitably preside over palm tree justice.

    Why not abolish English education as well? It has a strong British heritage too. Madrasahs can be new centres of learning excellence.

    Why not abolish the system of civil service too? We can have village headman (‘ketua kampong’) to run the country too.

    Hurrah, Malaysia Boleh! Just makes me sick!

    This is a nation where its leaders are wonderful fire-fighters!

    After a bus crash, the whole cabinet then decides buses must be checked and drivers brought to book.

    After a financial scandal (BMF or PKFZ), the whole cabinet then sits and decides how much to bail-out!

    What GLOKAL in 2057? Give Pak Lah another 500 years and Malaysia with this kind BN bunch, with a corrupt mindset and ‘whirl-class’ mentality seeking only to enrich their own pockets will still live like the proverbial frog ‘dibawah tempurong’.

  14. #14 by sheriff singh on Thursday, 23 August 2007 - 11:23 pm

    The Chief Jester has really brought his court down to the docks.

    His days are however numbered. Maybe in about 33 days, not cases.

    Goodbye Fairuz. Won’t miss you.

    P/s The Syariah Court has a vacancy. You applied?

  15. #15 by Woody on Friday, 24 August 2007 - 5:28 am

    The Bozo does known what he is talking about.

    Not only he should abolish the Common Law and should suggest to abolish ENGLISH….

  16. #16 by sotong on Friday, 24 August 2007 - 7:05 am

    From the previous PM’s statement of Islamicmisation and Islamic state to DPM’s statement that the country is an Islamic state and now CJ wanted to abolish Common Law, there is no doubt there is a hidden agenda to make the country a Islamic state with Islamic laws decades ago.

    Neglecting the Constitition, this is the greatest betrayal of Non Muslims, in particular Bumi Non Malay!!

  17. #17 by wtf2 on Friday, 24 August 2007 - 8:57 am

    while there is this great debate going on about judicial appointments, has anybody given thoughts to the syariah court appointments? who controls them?

    by the looks of it, the civil courts may have the carpet pulled from their feet and one day they may be faced with those appointees from the “other” side of the fence.

    this court jester and his herd of jesters are becoming more and more nonsensical. it is apparent that they have an agenda to carry out.

  18. #18 by bystander on Friday, 24 August 2007 - 9:14 am


  19. #19 by Bigjoe on Friday, 24 August 2007 - 9:40 am

    Is this CJ nuts?? Where the hell did he get his freaking degree? We have way too many of crazies like these who think accountability and checks and balances is a bane to their ideas and agenda..

  20. #20 by Jimm on Friday, 24 August 2007 - 10:31 am

    Well, they really need to act on this fast as to allow an advantage to keep in power. This government have too many issues that kept under OSA that might causes their own downfall soon unless they can create a new set of laws. They have created a dominated environment to not to allow any form of interferrence from neighbor countries on internal affairs. Soon, with the new set of laws, they are above everything.
    For these, they all will passed it in Parliament.
    Good news, for them , concerned news to Malaysian including our rulers.

  21. #21 by ethnicmalaysian on Friday, 24 August 2007 - 11:11 am

    Ah, nothing like waking up in the morning to a breach of the Constitution when reading the Star headlines this morning. I’m no lawyer but what exactly are the implications of using Syariah law to replace English Common Law? Does it mean that cases decided in Syariah courts around the world would now be used as reference for judicial decisions made in the absence of statutory law? Does this not imply that Syariah law will replace civil law? If so, is that not clearly a breach of the Constitution and much touted ‘social contract’ both of which have been so bastardized over the years that it’s good only for the toilet and for waving at BN general assemblies?
    You have to give credit to the highly effective machinations of the Umno machinery in slowly but surely ‘amending’ the constitution without actually amending it. It is insidious manipulation of power by people who understands very well how to use it to achieve their twisted agendas. There’s almost a sense of inevitability to this Islamisation process. Resistance as they say, is futile.
    It continues to amaze that the CJ no less, is still caught in a mind warp of anti colonialism/British/English, and is unable to move on even after 50 years of independence. Should we ban EPL matches then, to break free from the shackles of the terrible Brits?

  22. #22 by wtf2 on Friday, 24 August 2007 - 6:34 pm

    actually i am confused if he’s just the “acting” CJ or really the CJ?

    if the sleeping beauty does not wake up he will have another big problem on his hand soon. Non-muslims need to have a united voice against this ridiculous notion of using the “other set of laws” to supplant the common laws. Islamic court stuffed down the throats of non-believers.

  23. #23 by greatstuff on Friday, 24 August 2007 - 9:05 pm

    I can’t believe what has been said by the CJ about replacing English Common law with Syariah law- he has forgotten there are other races in the country that would be greatly oppose this nutty idea.This is yet another example of society control via intolerant means and it all sounds too ridiculous for words!.The CJ is, naturally, biased and imagines himself as the Taliban leader in Malaysia

  24. #24 by undergrad2 on Saturday, 25 August 2007 - 6:31 am

    First there was only one system of justice i.e. one based on secular law, on English common law. Then they double-tracked the justice system to allow for a parallel system of syariah law kicking up a lot of controversy as to which law has jurisdiction over what matters.

    Hardly had the dust settled down, now they want to merge the two and have one system! They gotta be kiddin’.

  25. #25 by Jamesy on Saturday, 25 August 2007 - 5:36 pm

    Do I need to say more?

    We are in TRANSITION to becoming an Islamic State leading up to its purest form.

    Even a simple English Common Law in Malaysia which is so deeply rooted in the Malaysian Legal System and Malaysian Civil Law for 5 decades does not escape the CJ, who wants to abolish and replacing it with Islamic Law based on Syariah Law.

    The way I see it, once the Common Law is abolished, and Islamic Law is instituted, it’s easier for the government at the end of the day to amend the Constitution to make Syariah Laws the supreme law of the land and effectively and officially declaring Malaysia an Islamic State(Purest Form). Why? Well, the government will say that since we have a set of Syariah Laws governing our everyday life to dispense justice, what’s wrong with declaring Malaysia an Islamic State(Purest Form) in the Federal Constitution and MAKE THE SYARIAH LAW AS THE SUPREME LAW OF THE LAW?

    I think it’s the biggest conspiracy of the century on the part of the PM, its entire cabinet, government machinery and the Head of the Judiciary to EVENTUALLY make Malaysia an Islamic State leading up to its purest form as its goal.

    So my fellow Malaysians, I strongly emphasis this, time and again that a vote for MCA, MIC, Gerakan, PPP, SUPP, PBS and etc is a vote for ISLAMIC STATE LEADING UP TO ITS PUREST FORM.

    No kidding, my friends. It’s happening right in front of your door step. Please pass this message around your family members, colleages, friends and neighbours.

  26. #26 by kowtim on Sunday, 26 August 2007 - 1:31 pm

    MCA, Gerakan and MIC had already agreed that we are an Islamic State so I presumed they will aslo agree to replace the common law with syariah law. Bravo. Want to bet who is going to be the first to have his hand amputated or stone to death.

  27. #27 by Jamesy on Monday, 27 August 2007 - 11:00 am

    Hi guys,

    Here are some of the comments on the issue above :-

    Bring On Your Views
    Written by MBW on 24 August, 2007 at 08:47 AM

    Dear all,

    Isn’t civil court only supposed to apply the secular law? If Common Law is replaced by Syariah law, aren’t we heading towards an Islamic State? Is it really necessary to replace the English Common Law when in practice we are more or less capable now of applying the Malaysian Common Law? Since civil courts should only apply secular law, can we look at importing the Chinese and Hindu jurisprudence into our civil laws in place of the English Common Law? What is CJ trying to do? What is AG trying to do? Are they trying to Islamise our civil courts? Is our CJ talking more like he is the head of the Syariah Court than the Federal Court?

    We like to hear your views. You can post them here or submit your article if it is more than 1,000 words together with your most recent photograph.

    Is this true?
    Written by Nik Elin Nik Abd Rashid on 24 August, 2007 at 09:50 AM

    Is that true, that what the Chief Judge is saying that Syariah Law will replace the English Common Law? Did he really say that? Well, I am not much of supporter of the English Common Law, but certainly Syariah is not the best system to be implemented in Malaysia.

    Sorry guys, I am just being sincere and frank here. My late father, Pak Nik, would probably be turning in his grave with my statement.

    Perhaps it was also because I studied under a lecturer that was very very chauvinistic that made me be completely turned off Syariah Evidence to be implemented in our courts. Perhaps I should study deeper in it to make sure that what I am learning is not some ajaran sesat, based on tafsirans of some self proclaimed ulamak.

    But loosely, the Syariah Evidence is very gender biased. Female witnesses do not count unless it was for a business transaction. For criminal, I would not suggest it. And who would they refer to in case of question? I hope they wont refer to some Mufti who isn’t even able to understand Arabic, much less interpret it.

    And can you imagine them telling us that a witness who dresses in serban, robe and beard make better witnesses. (Hey, thats what I was taught! When I argued with my lecturer, he got mighty pissed off).

    Of course, they will argue back with me that what they have is divine law. NOt some man made laws. But the divine law in question seems to have been grossly misinterpreted by very human beings.

    Yes, go ahead, implement the Syariah legal system in Malaysia, but no thanks, I’d rather go migrate to Singapore, Thailand or even Bali. The loud minority here is just getting on my raw nerves.

    Say no to syariah law for non-muslims
    Written by Srimurugan a/l Alagan on 24 August, 2007 at 10:23 AM

    Here we go again. I rather migrate to a 3rd world country rather than being subjected to syariah law. I am a non-Muslim why should i follow syaiah law. If I have a dispute with a non-muslim, I dont want Muslim law to resolve them. This is another example of big dreams without any plan. Why not Hindus follow Hindu law, Chinese follow their customary laws….as a Hindu and a Malaysia, I rather follow common law rather than syariah law.

    Srimurugan a/l Alagan

    WHAT Is This ??
    Written by Ding Chu Teck on 24 August, 2007 at 11:06 AM

    You might as well abolish the present legal system and replace it with the Syariah Laws! Hasn’t our YAB DPM pronounced Malaysia an Islamic state?

    Ding Chu Teck

  28. #28 by Jamesy on Monday, 27 August 2007 - 11:04 am

    Another comment…

    CJ please resign, please please please
    Written by Fahri Azzat on 22 August, 2007 at 17:13 PM

    CJ please resign, please please please (cos you don’t deserve retirement)

    If minds so much greater, finer, sophisticated and intelligent than our intellectually impoverished CJ has not seen fit to give such short shrift to common law what more him? I think the CJ should focus on doing his job (which seems to be just blaming lawyers for everything – he’d slam the delay in appointment of the CJ (Malaya) and PCA if lawyers or the Bar had anything to do with it) instead of talking about the law. He has shown the clearest indication he is not fit to do so – this latest statement nails it on the head. I just wonder what happened to that stupid proposal of his to fuse the inquisitorial, Islamic, adversarial and god knows what other systems after this seminal Scandanavian trip. I have heard nothing since that junket. His Lordship has also said that it is a sin to not use BM in court when he has rendered decisions in English himself. I am also fairly certain that there is nothing in the Quran or Hadith that supports his assertion which prima facie is so completely without merit that it raises the presumption of moronity by the person who raised it.

    Fahri Azzat

  29. #29 by ktteokt on Thursday, 20 September 2007 - 9:50 am

    kowtim, if what you said is true, then have the big-shots in MCA, MIC, Gerakan, etc gone to the hospital to be circumcised? Otherwise, what are they agreeing to? They should very well be ashamed of themselves and immediately quit from an Islamic government which offers no place for such “unclean” non-halal people!!! Oh! and don’t forget, they have to go home immediately to throw away their ancestral worship tablets too!!!!!

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