Minister: Study proposal on switch to Syariah law thoroughly

PUTRAJAYA: The proposal to use Syariah law to replace English common law in court proceedings should be studied thoroughly first, said Datuk Dr Abdullah Zin.

The Minister in the Prime Minister’s Department said the move, if approved, should be done in stages.

Lauding the proposal by Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim, he said Syariah law gave importance to justice.

It would also be a further development for Syariah law in the country in addition to introducing a uniform syariah law in all states, Dr Abdullah sai d yesterday.

“We are already in the process of getting a uniform syariah law in all 14 states including the Federal Territory relating to family, administration and criminal law.

“If there are more proposals for the development of Syariah law, they are most welcome but it should be done in stages,” he told reporters after opening the seminar on

counselling for Muslim terminally ill patients here.

Ahmad Fairuz had said that there was no need to use English common law after 50 years of independence, suggesting another procedure as a substitute.

He said Sections 3 and 5 of the Civil Law Act permitted judges wide discretion to import English common law, equity and statutes

into the legal system to fill gaps in Malaysian laws.

Attorney-General Tan Sri Abdul Gani Patail also responded positively to Ahmad Fairuz’s proposal.

On the seminar, Dr Abdullah said the Islamic way of treating terminally ill patients was not to tell them how many “months they had left to live”.

“The Islamic way is to give them hope and the will to continue to survive and let them depend on their own physical strength to keep them alive,” he said.


Minister: Study proposal on switch to Syariah law thoroughly

PUTRAJAYA: The proposal to use Syariah law to replace English common law in court proceedings should be studied thoroughly first, said Datuk Dr Abdullah Zin.

The Minister in the Prime Minister’s Department said the move, if approved, should be done in stages.

Lauding the proposal by Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim, he said Syariah law gave importance to justice.

It would also be a further development for Syariah law in the country in addition to introducing a uniform syariah law in all states, Dr Abdullah sai d yesterday.

“We are already in the process of getting a uniform syariah law in all 14 states including the Federal Territory relating to family, administration and criminal law.

“If there are more proposals for the development of Syariah law, they are most welcome but it should be done in stages,” he told reporters after opening the seminar on

counselling for Muslim terminally ill patients here.

Ahmad Fairuz had said that there was no need to use English common law after 50 years of independence, suggesting another procedure as a substitute.

He said Sections 3 and 5 of the Civil Law Act permitted judges wide discretion to import English common law, equity and statutes

into the legal system to fill gaps in Malaysian laws.

Attorney-General Tan Sri Abdul Gani Patail also responded positively to Ahmad Fairuz’s proposal.

On the seminar, Dr Abdullah said the Islamic way of treating terminally ill patients was not to tell them how many “months they had left to live”.

“The Islamic way is to give them hope and the will to continue to survive and let them depend on their own physical strength to keep them alive,” he said.

Minister: Study proposal on switch to Syariah law thoroughly

PUTRAJAYA: The proposal to use Syariah law to replace English common law in court proceedings should be studied thoroughly first, said Datuk Dr Abdullah Zin.

The Minister in the Prime Minister’s Department said the move, if approved, should be done in stages.

Lauding the proposal by Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim, he said Syariah law gave importance to justice.

It would also be a further development for Syariah law in the country in addition to introducing a uniform syariah law in all states, Dr Abdullah sai d yesterday.

“We are already in the process of getting a uniform syariah law in all 14 states including the Federal Territory relating to family, administration and criminal law.

“If there are more proposals for the development of Syariah law, they are most welcome but it should be done in stages,” he told reporters after opening the seminar on

counselling for Muslim terminally ill patients here.

Ahmad Fairuz had said that there was no need to use English common law after 50 years of independence, suggesting another procedure as a substitute.

He said Sections 3 and 5 of the Civil Law Act permitted judges wide discretion to import English common law, equity and statutes

into the legal system to fill gaps in Malaysian laws.

Attorney-General Tan Sri Abdul Gani Patail also responded positively to Ahmad Fairuz’s proposal.

On the seminar, Dr Abdullah said the Islamic way of treating terminally ill patients was not to tell them how many “months they had left to live”.

“The Islamic way is to give them hope and the will to continue to survive and let them depend on their own physical strength to keep them alive,” he said.


source
Some comments from wise Msians

Screw Syariah law.

This is not the first time I had heard such a talk about Islamic extremist of the government.

If Malaysia were to do that then Malaysia be like Iraq.

Not only that the proposal of choosing your religion freely is bull$hit!

Stop screwing around with the people!

You'll have your civilians fighting for justice on the legal system if Malaysia decides to based it on religion.

If it weren't for religion the world would be at peace.

Only fu-king religious d!ckheads would make petty issues a big issue for everyone.

Instead of fixing the hole on the roof they make it bigger.

Screw the Syariah proposal, screw you for coming up with such statement and screw you for not trusting your own community.

First of all, do they realise that almost 40% of Malaysian population are non-muslims?

Do they give a $hit what non-muslims feel? I guess not. So why should non-muslims give a $hit about this coutry??

Non-muslims aside, is sharia adequate? even US, Aust, S'pore, Canada, and India still refer to UK common law, or even other jurisdiction. Does this make them less independant?? Just shows what an insecure mentality this so called Chief Justice has.

They claim sharia law is more "humane". In the middle east, the preferred method of execution for a capital offense is by firing squad, or beheading by sword. And i thought men can easily divorce their wives by sending sms talak?

They keep on saying "Look East". looks more like "look middle east".

You've already answered the questions of why Malaysian non-Muslims don't give $hit about Malaysia and it is highlighted in bold.

First of all they should ask themselves what is "humane" to them?

Giving people the freedom and independence to make their decisions or to be bound by the old laws that was written more than 2000 years ago and take everything into their control.

It is though to me these politicians do not have enough common sense nor the intelligence to govern the country that is already democratic.
If they want to set aside those rules, laws and regulations that the people had worked hard on for more than 40 years since it was establishes in terms of prosperity and fairness just for the sake of monarchy, anarchy as well as riots is ridiculous.

Its an outrage! An insult to intelligent people! An insult to hard working people!
I would not want to place my trust and my dedication to serve the country that does not even care about my feelings that has been said and done.

Now for those who are Muslims.
Should you follow a system that is written more than 2000 years ago that has brought bloodshed and wars even today?
Should you just follow blindly and not make a stand in what you believe in?

And even you choose to do it why? for what reason? does it benefit you? does it benefit everyone as whole?

Would you just put to waste to everything that the whole nation has worked hard for in peace and prosperity regardless of race and religion?
Me I would not. Even if I were a Muslim there is no point for me to strive what has been just for the unjust.

Now that is INHUMANE!

wait a moment.... u can't question them! this is special privileged given to them. we can't question them. if not, we will be accussed of trying to stir up something and put into jail or they will threaten to harm u and ur family... i am damn scared now....

Kenaper takut ker kalau mencuri kene potong tangan ?

i will go to open a clinic sell tangan palsu then.. sure HUAT AH!!!

I think it better for Malaysia if we stop using common law and develop new law based on our constitution. I think it no point to send all the judge and lawyer to go to British and study law and after all those yrs still depandable with law for British people not develop law for Malaysian people. If we want to continue using common law, it better we have British Judge and still colonist by British.

Those who're scared will remain scared.

Those who seek justice will find it.

Those who want fairness will get it.

Those who live in fear will receive it.

That's a good idea however our leaders are just too stupid to realize this.

Bloody annoying.

The Laws are based on the constitution. Having a British system or any other system doesn't matter as long as the system works. Democracy is an invention of the Greeks, does it mean Malaysia should give it up simply becasue someone else used it first?
Malaysia is using the British System of justice, it does not mean that the laws are the same, nor does it mean that lawyers and judges have to go to Britain to study.


I can't believe that they want to implement Syariah Law as a system of justice. If it was the rights of every religion other then Islam will be eroded. As a system, admitting that I'm not fully versed with the system of Sharia law, I think it would be fine as long as Sharia Law itself is not enforced. I fear though that the reason they want to do this is not to specifically use the system but to get Shariah law implemented bypassing the constitution.

Why change something that already works for our country?

boredom? lack of better things to do?

From all likelihood, there are only hot air, or bull-s#itting on the policy makers part.

The need to regulate & standardised Sharia laws in 14 states including Federal Territories is laudable & certainly needed.

But to replace Civil Law with Sharia is total bullcrap. Even those in power knows this. MCA, MIC & other BN affliated non-Muslim parties will give UMNO hell for even reconsidering such idea.

I willing to bet top dollars that such plan to replace Civil Law to Sharia Law is totally nonsense & won't happen!

I really hope u are right on this. The CJ, AG, and some ministers seem so serious on this.

Remember when PAS Govt. in Kelantan seems serious to implement 100% Sharia Law in the state ..... who stopped the half-baked plan .... yes, it is the Federal Govt. lead by UMNO & BN, who says such moves is against the Constitution!

So much so, PAS had to stop their plan to implement 100% Sharia Law in Kelantan.

Y'know, the rhetorics about implementing Sharia to replace Civil Law is just that rhetorics .... have you forgotten election is around the corner ... the UMNO lackeys campaigning Islamic value to compete the Islamists PAS.

Its all politicking BS .... Standard Operating Procedure in Malaysian politics .... especially during election seasons.

Whatever law they want to implement let it be, as long as it doesn't violates human rights, but I guess sharia law has certain aspects that doesn't give a damn about human rights yeah?

I myself is an atheist. Yeah, hate me, whatever. I don't hate people with religions, but it's the people who use religions as platforms for their selfish causes get on my nerves. If religions are the causes to so many problems to so many people, why bother embracing any at all? Yes, of course, there is this fact that not all people are intelligent enough to live their own lives without violating other people's rights. However, I do think that more and more people are starting to realize that human rights are after all, the most logical laws of all. People want to retain religious laws because of the wants and the needs. The want? Control. Monopoly. Superiority. The need? To lead and guide groups of people that are not capable to live an as ethical as possible live on their own.

Facts. Nobody can stop the world from progressing. To even try to stop it is self-destructive, and this, so simple, yet hard to be understood by so many people, even the so-called leaders. Human rights are gaining more and more recognition, how silent or unheard they may be. People are getting more global and human education, and they become smarter. (Well, the lucky ones).

I never agree with science's relation to religions. F*** history. It's just another reason to propagate religions. For instance, while Newton's gravity law is right, there is no need to agree with his thought that 'something' created and purposefully arranged the universe. Humans stay humans. I may save the whole world from global warming destruction, but that only makes 1 thing that I think and do right. The whole world doesn't need to worship me as anything 'superior' or 'supernatural'. I am still a human, still live and die, still subjected to wrongdoings regarding human rights. Heh, and people are still believing in terms as old as human civilizations that caused bloodsheds worldwide. Reasons? Sense of belonging? Lack of conscience? Bound under laws? Selfishness? Whatever...

So my verdict, yes to laws upholding human rights, and vice versa. Whatever names they want, so be it.

No surprising with such emotion running high: More to emigrate. This is brain drain. Bolehland has no vision for its all people except for the Umno malays.

Who not afraid of the keris waving politician? Even my malay classmate emigrated to New Zealand recently, sick of the polemics and the politicising of religion here, good thing got money shall travel, no money no talk.

Should have left 10 years ago when I saw that we have no equal opportunities. But I hesitated and said there will be a change when Badawi takes over. Well! Guess that was not the case. It got worse and the future of Malaysia is bleak!

Pack my back and left the place to look for better opportunities and fight on merits. I am better off in Australia than the "dark hole" of Malaysia. At least you get respected for your recognition and skill. In Malaysia, how good you are is always a second class citizen. No promotion for us but their own kind.

NEP to malays is like drug to drug addicts. Once they started to taste it, they will never let go till they die. Tough they all know very well NEP is just like drug, not good for them in the long run, but they can't resist the short term temptation and fall deeper and deeper into the abyss of NEP.

Since now, the NEP had become Never Ending Policy, the little hope of getting out of the NEP drug will dismiss and leading to the destruction of the malays. By then maybe all the able non-malays had already emigrated to greener pasture in overseas. I forecast 2020 year is the doom day. Thanks to selfish Umno malays.

We are at our own liberty not to live in this controversial country. The government does not discourage us to leave this country. For Chinese and Indians, Malaysia perhaps is not a good place to stay because your mother countries to with China and India are now thriving. Just leave malays to manage their own country. Let Malaysia ruin with the malays.

The Chinese culture is compatible to other cultures in the world. The Chinese will have no problem adapt to other cultures in the world. There are many China Towns in overseas countries. So the Malaysian Chinese will feel at home wherever they go.

Real sick and tired of all these Umno babiputras, the sob in Malaysia Umno babiputras!

Yes, the only realistic proposition is encourage all Chinese to emigrate to Singapore and leave Malaysia for the malays. Trouble is Singapore is so small, its land mass will not allow a huge population to live in the island.

So next choice for the Chinese to emigrate is to Australia and New Zealand. The exodus has begun. Those who can afford now have started to go. The signs are already there.

There is no future in this country anymore. In a few years time this country will be in ruins when the oil money runs dry. FDI has already dry up and gone to other countries like Thailand and Vietnam. Foreign factories have closed shop migrated to China and India.

Chinese planning to emigrate should also consider option to return to China. Some of my friends went to invest there and within a few years become millionaires. There are much more opportunities and being Chinese there shouldn't be any problem.

By my own experience I can tell you that it is great being a new citizen in Singapore. You are judged by what you can contribute and not but some NEP policies.

The education in Singapore is also about the best in the world. Yes, even the educators from the native English-speaking countries adopt how mathematics and science are taught here.

Best of all, every time you cross the causeway to visit Malaysia you are rewarded by at least 2 or 3 times in your spending capability.

Oops……….now that this is happening, in the next 5 - 10 years, Malaysia will end up looking like the Philippines, where their main export is maids. Lack of income from tax, will see economy melt down. Skilled professionals all fled from the country.

Yes and having lived overseas, I have a nice bird's eye view of how Malaysia is heading towards the sewers.

Malaysia has spent the last 3 decades focusing on physical infrastructure without developing the human capital. Never mind the restrictions and stifling of independent minds - let us not even go there yet.

Let us start with basic education and providing of higher education opportunities for the best and brightest. We have cultivated at least 2 generations of dumbass.

Too many unqualified malays have been force fed into colleges and universities and the end result is you have the same bunch of witless village idiots, except now they are holding a piece of paper they don't know what to do with. A minority is absorbed back into the tertiary education system……….no prizes for guessing what that has caused over the last 30 years.

For the majority remaining, real world corporations wouldn't even hire them if they offered to work for free. So you have a bunch of jobless numbskulls who think they are too good for the common labor jobs, which they would have ended up in anyways given their aptitude and qualification, and desire a pen-pushing corporate position (if they could push that pen to string one coherent sentence in English, that would be another thing).

So we bring in all sorts of foreign labors to do our work for us, and we have a youth bulge of unemployable (and grossly unqualified) graduates walking around with a sense of entitlement.

Sounds familiar? It should. This is what is happening in the Middle East.

This trend towards greater Islamic extremism is also no coincidence. It is merely the natural path of development that a failed society embarks upon.

The malays have failed. Plain and simple. Their policies stink, they have screwed themselves more than they have others, in fact. The only reason the $hit hasn't hit the fan sooner is because, like their desert co-religionists, they have petroleum propping them up.

That will go soon……….not totally, but it won't be at the present rate it props the country up. And it is closer than you think.

Those who can should emigrate and get the hell out - and that includes our malay brothers and sisters who have the means to. When the dust settles, no amount of cyber cities, longest bridges and tallest buildings, are going to save you from the disaster of a fourth world country that is being developed.

I am one of the cows applying for migration. How do I feel? I feel that the world is my home. If I am not treated well here, I will go to another country.

It is not about fighting for the country or fighting for the world. I am fighting for a better life and that is what everyone craves for.

Anyway why limit ourselves to one country when we can explore to other places. We only leave once, make the best out of it.

Well, the most popular countries to emigrate are Australia, New Zealand and USA. For those who wanted to emigrate to any of these countries and not prepare to pay the extra migration agent fees should consider apply themselves, it is not difficult as long as you meet the respective country criteria.

I know because I am a migrant myself and I helped my friends to emigrate to all those countries in the past three years.

The due date of the NEP should be in the year of 1990. How come the policy can still running untill today? MCA and MIC only agreed 20 years for the duration of implementation of NEP?

someone can tell me??

Fargowin, for all your beefs against Malaysia, relax your tone towards Malays. You sounds just like another racist prigs.

Good luck on your being overseas .... migrant no less. BTW, since you hate MY so much, don't forget to apply for Australian citizenship & ditch your Malaysian status.

One way or another, look forward to your future there, so no more b!tching about MY like sore loser.

I don't agree with what Fargowin says but it should demonstrate how non Malays feel.

Most of us non Malays Malaysians are/were very patritic, we loved Malaysia as much as any Malay Malaysian. We grew up there, all our family live there, our value system was formed there and we pleged alliance to Malaysia evey Friday and Monday, we do feel sons of the earth. Then we find out that our country still values us as second class citizens, that we don't have as much rights as our Malay brothers, that our religion is less important then Islam, we are told to shut up when we voice our opinion and then the greatest insult in being told that despite all this, we should be greatful.

The sad thing for Malaysia is that she has lost some of her best talents, for only the best can leave. And the feeling of betrayal is not only felt by the Malaysians who have left but still felt by those who remian. The worst scenario will come when those left behind feel that their situatuion is so hopeless that they have nothing left to lose, and if you push hard enough, this will certainly happen, look though history, it has happend countless times in the past, is happening now and will continue to happen in the future. For her sake, I hope Malaysia will change before this happens. The biggest concern is that things over the last few years have been getting worse, the conservatism of Islam is increasing, the non Malays are getting more frustrated and the races are even more divided.

Can anyone give a good example of when English common law has failed to deliver justice in Msia? The best example this scholar could give is a 1927 case. The only reason to throw away the common law, according to the article, it seems, is because it makes us look like we are "still shackled by the yoke of the colonials". What do u think? He also tries to use the term "Malaysianise" to hide the fact that it is really "Islamicise".


The Star > Opinion
Tuesday September 18, 2007

Time to Malaysianise common law system

IKIM VIEWS
By Dr Wan Azhar Wan Ahmad

It should be based on ethical, moral and legal values shared by the followers of the major religions.

THE Chief Justice of Malaysia, Tun Ahmad Fairuz Sheikh Abdul Halim, in his opening speech at Ikim's seminar titled Ahmad Ibrahim: His Intellectual Thought and Contributions, expressed his disappointment over the captive mentality of our legal experts, practitioners, judges and lawyers in reference to the high esteem they accorded English law, or to be more specific, English Common Law (ECL).

He regretted that despite the nation being independent for 50 years, we still retained, followed and rigidly adhered to s. 3 and 5 of the Civil Law Act 1956 (CLA). The provisions of these two sections prescribe the complete application of ECL for the entire nation.

In reality, many tend to interpret these sections as if we are duty bound to refer to English Law in case of lacuna in our own law. In relation to this, Ahmad Fairuz posts four important questions for us, particularly the legal fraternity, to ponder on. They were:

DOES this condition reflect that this country is bereft of legal expertise?

> DOES it mean that English Common Law is the best option?

> DOES it mean that our legal experts are still shackled by the yoke of the colonials (di bawah tempurung penjajah)?

> IS IT true that our legal scholars are impotent, in other words unable to formulate and develop a legal system better in comparison with ECL?

He has called for the Common Law of England to be replaced by our very own common law.

The CJ’s remarks were reported in local dailies nationwide. Amazingly, many commented positively, including some political leaders. But there were also voices of discontent from certain quarters describing the call to replace ECL as “baseless.”

What is English Common Law? In brief, it refers to the unwritten law of customs based on the decisions of judges over a period of years in England, i.e. law derived from customs and judicial precedent. This includes the rules of equity, and later, various statutes of general application, developed and administered in that country.

The British introduced this set of laws to Malaysia firstly through various treaties with local rulers followed by legislation and decisions by English judges or judges trained in the English legal system.

The call by Ahmad Fairuz reiterates one made by another (former) Chief Justice, Tun Abdul Hamid Omar (in 1990), who said words to the effect that being an independent country, our reference to ECL and the rules of equity – by virtue of s. 3, CLA – was politically indefensible. He continued that s. 3 needed to either be repealed or amended.

It is not an exaggeration to say that actually all these recommendations may be traced to the famous legal expertise of Prof Ahmad Ibrahim. Many would agree that he was not only the originator but also the prime mover of this idea, and he inspired many.

Prof Ahmad wrote that s. 3 and 5 of the CLA should be amended by repealing all references to ECL and the rules of equity administered in England.

He strongly suggested that we should refer to the court decisions in Malaysia instead by applying our own laws and by giving priority to the local conditions and its people, thus establishing and developing our own Malaysian Common Law (MCL).

Prof Ahmad argued that the last part of s. 3 of CLA itself should allow for the formation and development of MCL. It provides that “the said common law, rules of equity and statutes of general application shall be applied so far only as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary.”

Obviously, the CLA is not to be followed blindly or literally. The very provision itself suggests that even its drafters expect us to develop our own common law. Indeed, there are enough grounds for us to establish our MCL.

Unfortunately, Prof Ahmad laments, in spite of the fact that all our civil court judges, from the lowest to the highest, are all appointed from among Malaysians, they do not show interest or use their abilities to modify ECL to suit or to conform to local circumstances.

If there is any modification, which is very rare, it is done by rejecting an English law in preference for another English law. So, in spite of our independence, local judges and lawyers, and possibly draftsmen, are not. We are still tied to English law and to its court’s decisions.

Ahmad Fairuz lends his full support to the notion of repealing or amending the CLA. He stresses that it should be done using whatever necessary and possible modifications, in the spirit and perspective championed by Prof Ahmad.

It is hard to really understand why certain “learned” groups – both within the legal fraternity and without – refuse to forsake ECL. Prof Ahmad boldly states that the formation of MCL must be based on the basic law of the land, i.e. Islam and Malay customs.

He finds support for this in the court decision of Ramah vs Laton (1927), presided over by an English judge. Could this form the raison d’etre for such a rejection?

To hold to this as true is baseless, unfounded and would encourage fear of the unknown and bring Islamophobia to the surface. Historically, it is logical, and no one can argue the fact that the basic law of any nation must always be associated with real truth and justice.

All must understand that while Islam is theologically distinct from other religions and whose worldview is complete, in terms of similarities as far as ethics, morality, its value system and legal principles, it has a lot in common with other major religions. There’s tremendous parallelism of all world religions in these aspects.

So when we talk about Malaysian Common Law, we mean the formation and development of a system of law based on these ethical, moral and legal values shared by the followers of the major religions.

There may be certain values in the English legal tradition that may not suit our common moral precepts. It is against these elements that we must stand united.

This is the spirit that should be remembered when we argue for a cessation to reference to foreign laws to settle our disputes. In this regard, any notion of a super imposition of any one religious theological teaching upon the followers of other religions must never be part of that consideration.

For a common law system in our pluralistic society to become manifest, the basis should be Islam, and arguably to a lesser extent, Malay customs. This must not be taken as an outright denial of the role and contribution of other religions or races. Input from other cultures and traditions will serve as great additions towards a harmonious peaceful life in this beloved land.

Perhaps the best term to describe the formation and development of this Malaysian Common Law is “Malaysianisation.”

# The writer is the Senior Fellow/Director at the Centre for Syariah, Law and Political Science, Institute of Islamic Understanding Malaysia (Ikim)

I'm no lawyer but my understanding of English common law is that it applies to presedence, so if there has been a ruling in a previous case similar to yours then they refer to that case, but as no 2 situations are ever exactly the same the presenedce is only a guide. It also goes that if there hasn't been a similar ruling in your courts, then you look overseas to similar justice systems as to what the judgement there was, but my understanding is that this rarely occurs. The laws of each country though is different so taking presedence from other countries often don't apply. The benefit of this is that the rulings no matter what they are, remain consistent.

I agree with you that he probably doesn't mean ""Malaysianise"but actually "Islamicise". In his opening statement he refers to the "ethical, moral and legal values shared by the followers of the major religions". But later on he goes to say " formation of MCL must be based on the basic law of the land, i.e. Islam and Malay customs". This is just a way to try and implement Syahriah Law into Malaysia, another by passing of the Constitution.

Im also no lawyer.... yet! I just failed my CLP exam

But i roughly know la what English common law is. Common law can be roughly translated into "case law". The doctrine of precedent (stare decisis) u mentioned is one aspect of the common law. And u are right. In Malaysia, the court (judges, lawyers) will look at previous similar Msian cases and must apply that case as authority (the law). Unless, of course, the previous case came from a court lower in hierarchy, in which case, the court may apply that previous case as the law if it wishes (persuasive authority), but not mandatorily. Another way not to follow a precedent is when a current case is distinguished on its facts with the previous authority. Note, when there is no previous Msian cases, then only they may look into English cases. This is allowed in our Civil Law Act. But the Act does not force the judge to adopt English cases. It merely allows the judge to do so. So, whats the big deal? They are making a big deal out of nothing. Our courts are not forced to apply English laws. So, the allegation that after 50 years of independence we are "still shackled by the yoke of the colonials" seems baseless.

Another thing, i found in todays paper. It an opinion by a reader which i agree with. He says, the law that applies in Msian courts today are in fact Malaysian common law. We are using previous Malaysian decisions, like i mention above. He also quote Sultan Azlan Shah: "it is erroneous to say that any reference to the common law in Malaysia especially in the field of commercial transactions means the common law of England"

I agree, it would be very rare to come across a case where there is no precedence in Malaysia. So like I said, changing the system is likely only a front to adopting Shariah Law. Not the process, the law itself.