Spring Formal 2016 is an annual event organized by KPUM: United Kingdom & Eire Malaysian Law Students’ Union. It is an event where the students have the opportunity to experience a formal black-tie dinner in one of the Honourable Inns of Court, in United Kingdom. KPUM is a students’ union where every Malaysian law student enrolled at a university in the United Kingdom and Ireland, are automatically members of KPUM. Our Partner, Puan Aisha Mubarak has once again been invited to be one of the speakers at the renowned occasion, together with other fellow professional colleagues notably from CIMB, PwC, Lee Hishamuddin Allen & Gledhill, Skrine, Thomas Phillip and others. This is a gist of her speech on the occasion of the Formal Dinner held on the 18th of March 2016 at the Great Hall, Inner Temple, Inns of Court, London.
- “Legal Systems do not emerge out of nothing, they possess a History, and reflect ideas and make use of Institutions which have developed overtime and have been moulded by cultural and political forces.” There is so much that can be derived from this statement, but for your after-dinner pleasure tonight, I would like to talk to you about the Malaysian Legal System and its relationship with English Law.
- Let’s start by looking at the differences, a funny way to start but nevertheless this will form the platform for tonight’s discussion. As you all know, the Malaysian Legal System evolved to a large extend form the English Legal System and English Laws, but the Malaysian Legal System is NOT English Law.
- Historically, official British rule in the Malay Archipelagos which include our beloved Malaysia can only be traced for a total of 162 years. This is a small period compared to the exposure we have had as a political region with other Legal Systems, notably the Islamic Legal System, European System (Portuguese and Dutch) and the inherent Native/Cultural Norms and Laws (Adat).
- Hence the next question you must ask yourself as a Malaysian reading the Law in England is, “Why is it that of all the Legal Systems and Jurisprudence that we had been exposed to, is English Law which had and still has the greatest influence on our Legal System?”
- Teaching Constitutional Law for many years to the first-year law students had me pondering on this question. My view is, by the time English Law came to us, it has a proper procedural system for the administration of justice. The other jurisprudence, although had substance in terms of the content of the law itself, but they lacked this system of administration of justice which the British had by then experimented quite successfully in India as a Colony with the Native people.
- This brings me back to the first question I posed to you, what then, are the differences if you say that we have adapted English Law from the British?
- There are so many, depending on which aspect you look at it. But, being a Constitutional Law teacher, I will highlight to you the constitutional differences.
- Malaysia as a federation of States has a written constitution aptly named the Federal Constitution. Whereas, the fundamental feature of this Government in the UK is the Supremacy of Parliament.
- Our Federal Constitution proclaims itself to be the supreme law of the land and any other law passed shall not be in infringement of any provisions therein or the intent of the written constitution. A system of law based on a supreme written constitution can be very different in its approach to interpretation of law and the working of the Parliament and Executive than under the system based on Parliamentary Conventions only.
- Many students fail to understand this difference when they return home and practice law in the local context. You must know when to stick to the statutes like the Contracts Act and when to look for precedents within common law. Most importantly, you must know when conventions are really applicable and when all you can do is to respect the four corners of the walls in the Federal Constitution. Of course judges have liberal intellectual prerogative to seek for judicial enlightenment within and outside the local law, but even then, they have to firstly discharge their duty to the constitution and rule of law above their personal opinions.
- Perhaps before I leave this stage tonight, I can share with you what you can expect when you return to Malaysia as a qualified person to practice the law. You will be coming home to a very exciting time in our legal history where many important constitutional principles are being put to the test either in the courts or in public discussions. This is something very interesting as for many years Constitutional Law was primarily an academic subject. And, most of the arguments being put out in the open are issues on the working of our written constitution. To me, this is a time of national legal progression and I am proud indeed to be part of this, in Hafarizam, Wan and Aisha Mubarak.
- We have been in the fore front of some of the important landmark decisions revolving around the issue of Constitutional Law and Conventions. One of them which I like to invite you to study is the case involving the Menteri Besar of Perak. The question of law here was the power of the Constitutional Monarch in appointing the Menteri Besar under the State Constitution.
- I also want to share with you that in our submissions, we are looking into other Commonwealth jurisdictions and studying how conventions work within their systems. Thus, as they say the World is becoming smaller. In our legal context, Malaysian Law is evolving beyond its borders, beyond its Mother (English Law) and if I can bravely say, evolving boldly and exponentially to becoming corpus jurisprudence with its own flavor, substance and most importantly, system of government based on the Parliamentary system but embedded within rules in a written constitution.
- I finally wish you all the best in your studies, all the success in the world in your careers and most importantly, a fulfilling Life ahead.
Puan Aisha’s vast knowledge in the area of Constitutional Law rooted from her experience as a lecturer in one of the prestigious law schools in Malaysia. Puan Aisha has always been reminding the law students to gear up their enthusiasm in acquiring knowledge and skills during their school years in the university. Knowledge and skills acquired during the years in university, will eventually determine the path in your career after graduation. Your interest might be the pivotal motivation in determining your career path, but your knowledge and skills are the ones which will give life to the interest in whatever path you are choosing. Your knowledge and skills are your lifeline towards success, and it would not be an easy journey to take on. As the old folks said; Those who are passionate, determined, preserved, knowledgeable and skillful will shine the brightest among all.
Reported by Ms Nik Alia, Associate/Knowledge Manager, HWAM