Towards Malaysian common law: convergence between indigenous norms and common law methods
The predecessors of the Civil Law Act 1956, namely the various Ordinances and enactments, had served well the British imperialist in Malaya and Borneo. They provide a semblance of legitimacy to things the British had done and continue to do, namely imposing their law on the colony. They also have...
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| Format: | Article |
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Fakulti Undang - Undang
2009
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| Online Access: | http://journalarticle.ukm.my/1695/ http://journalarticle.ukm.my/1695/ |
| Summary: | The predecessors of the Civil Law Act 1956, namely the various Ordinances and
enactments, had served well the British imperialist in Malaya and Borneo. They provide a
semblance of legitimacy to things the British had done and continue to do, namely
imposing their law on the colony. They also have served well a newly independent Malaya
and Malaysia in providing continuity and stability to her fragile legal system that suffered
the onslaught of imperialist law and political might. The purpose of this research is to
examine whether English common law should continue to dominate the development of
Malaysian law. Secondly, the work seeks to examine the scheme in which the English
common law methods could be employed to develop Malaysian common law. This
research found that the inapt position of English law in a land rich in her own culture and
heritage, and the impracticality of keeping up with the mercantile law of a foreign land,
suggests a need to wean off the law of mother England. Physical judicial autonomy
obtained by severance of appeal to the Judicial Committee of the Privy Council should be
followed by substantive autonomy by severing the umbilical cord with English law.
Malaysian common law may be developed by considering Malaysian indigenous law
which refers to laws, customs and norms of the Malaysian to nurture a truly Malaysian
common law. In this way, the interaction between the English legal system and the
Malaysian legal system will not be a matter of domination but of convergence |
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