An extension of multiculturalism is the array of customary laws developed by individual cultures. The legal systems of Southeast Asian nations may be likened to a river fed by several tributaries of different laws. The bulk of the river water is indigenous, but significant contributions are traceable to feeder streams that originate from the English common law. Naturally, the importing of common law was hindered by the need to respect and preserve customary notions of justice.
Where a divergence between common law principles and customary laws exists, the former must be modified as to prevent it from operating unjustly and oppressively on the locals. 14 Such was illustrated in common law's recognition of "special polygamy"15 in Singapore and Malaysia during colonization. The colonial judiciary had faced difficulties dealing with Chinese polygamy laws due to the paucity of available literature. As monogamy was deeply entrenched in the common law, Colonial judges did not recognize the legitimacy of Chinese polygamous unions.
To reach a compromise, Court of Appeal in 'Six Widows'16 stated that the 'widows', be they 'principal' or 'inferior' were entitled equal share distributions under the Statute of Distribution17. The welfare of concubines was looked after by the Statute of Distribution, which took precedence over Chinese custom (which excluded females or illegitimate children from rights of inheritance). 18 Eventually, common law judges settled on "special polygamy", where the 'tsip' [concubine] was imbued with status of "polygamous wife" to accommodate to Chinese marriage laws.
19 Traditional Chinese legal concepts were distorted because the "tsips" were elevated to status of principal wife and was entitled equal inheritance rights. Oppression and injustice were not completely prevented when common law was modified to benefit concubines of Chinese polygamous marriages. Instead, the application of common law was made in accordance to colonial judiciary's standards of fairness. Although judicial law-making was more pronounced then, the extent of its effectiveness in dispensing fairness and justice was relatively limited. Political and Economic Factors
Singapore and Malaysia have similar histories. Colonised by the British for trading purposes as part of the Straits Settlements,the common law was introduced into the region in 1826 through the Second Charter of Justice. In the absence of existing commercial codes, English commercial law was used via the Civil Law Act for commercial certainty. Extent of the reception of Common Law The common law is an important strand of Singapore and Malaysia's politico-legal fabric. They are similar in having inherited the English common law tradition and share the accompanying benefits of stability, certainty and internationalisation.
The pivotal doctrine of judicial precedent in common law, is present in both systems20. In addition, they have abolished appeals to the Privy Council, and are not bound by decisions from England and other commonwealth jurisdictions. Secularity is also present in both systems due to the separation of religion from the state21. The English Common Law heavily influenced the development of their laws. This is more evident in certain traditional Common Law areas22 than in statute-based areas23. In the latter, Indian and Australian legislation have strongly influenced their content and approach.
Also, both countries exercise independence in drafting new legislation to suit local contexts24. Minor differences in their respective receptions are that, in Singapore, the Application of English Law Act was enacted in 1993 to restrict the scope of English influence. No such act exists in Malaysia. Also, in the area of Contract Law, while Malaysia's laws are codified by adopting the Indian Contracts Act, Singapore uses English common law principles. Issues Arising Regarding the Reception of the Common Law
Singapore has made significant departures from the English courts even in traditional common law areas, and has seen extensive developments of local jurisprudence. For example, in the law of torts, the Singapore courts have consciously deviated from the English exclusionary rule25 so as to allow recovery for pure economic losses arising from negligent acts or omissions26. More recently, in the law of contract, Singapore has chosen not to adopt the English position27 on equity's jurisdiction in the case of unilateral mistake.
28 In comparison, Malaysia's legal system has seen fewer innovations and may be isolated from the international legal sphere as portions of jugments are published solely in Malay. Judicial Independence in Singapore Judicial independence is pivotal to the common law system. The links between the judiciary, business and executive arm in Singapore suggest a risk of judicial bias. However, Singapore's reputation for fairness and impartiality especially in commerical law and its popularity as a jurisdiction for arbitration and trial in South-East Asia29 suggests otherwise.
Judicial Independence in Malaysia In the mid 1980s, Article 121 of the Federal Constitution was amended to transfer judicial power from the courts to parliamentary enactments, making the judiciary subordinate to the legislature. The Constitutional crisis of 1983-4 also showed how the executive could employ law to tilt the prevailing balance of power between itself and the monarchy30. In the 1990s, the impeachment of Lord President Salleh Abas for alleged misconduct showed that law had become a means to political pursuits.
Constitutional guarantees were no longer a guarantee against executive assault. The Ayer Molek Saga also created the public perception that the judiciary could be swayed by the interests of large businesses, and poison pen letters 31 containing allegations of corruption, replete with incidents, details and names of delinquent judges, were widely circulated. It is obvious that the Malaysian judiciary not an equal branch of government capable of providing checks on executive prerogative and power. Comparing India
The extent of reception of common law in India differed greatly in different eras. Under Company rule, administered by the British East India Company, the common law was poorly applied upon its introduction in 1727 as the company was concerned with keeping order, not developing judicial institutions. The three common law courts applied it rigidly as the English judges were poorly informed of local considerations. Its application was also inconsistent as common law initially applied only to English citizens and Indians charged.
However, following the 1857 Sepoy Mutiny, the colonial masters paid more attention to India, declaring her a crown colony in 1858. British cabinet ministers put directly in charge of India, and law commissions were set up to adapt English common law into Indian legal and procedural codes with reference to India's cultural and legal needs. Such efforts resulted in the drafting of the Indian Penal Code, a codification of much of Hindu law, and the Indian Contracts Act that codified contract law comprehensively.
From this, we can identify the development of Indian legal thought by using English common law as a starting point, from which a distinctly Indian common law was developed. As a legal transplant, after the initial failure of administration, the common law was indeed well-received, and its co-existence with Hindu, Christian and Muslim law only shows India's legal system's independent development. Indeed, from the Indian example, it can be seen that the common law is a legal transplant that can accommodate local needs to a great extent, and as such it is ideal for such borrowing.
Conclusion: Common Law as a Legal Transplant The value of the common law as a legal transplant is in that it is able to jump-start newer legal systems, allowing fledgling systems to benefit from years of legal development. In addition, when laws are transplanted, potential investors who are familiar with these laws are more confident in their investment, encouraging economic growth so pivotal to the development of countries. Since such a transplant satisfies the rule of law and principles of natural justice, it gives guidances to new systems with regard to procedure, while being just and fair.
As the common law is rooted in practicality and appropriateness of approaches to fact situations, the extent of judicial independence and the ability to distinguish cases is appropriate for transplantation, as it can accommodate local issues and contexts. From the above discussions, with the exception of the Burmese example, we conclude that the common law legal system is readily able to co-exist with other legal systems, and this generally peaceable ability to co-exist is very much in the spirit of effectiveness and adaptability so desirous in the common law.