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4 US-China Law Review 1 (2007)
British Westminster System in Asia - The Malaysian Variation

handle is hein.journals/uschinalrw4 and id is 3 raw text is: US-China Law Review, ISSN1548-6605,USA British Westminster System in Asia -The Malaysian Variation Abdul Aziz Bari (Department ofPublic Law, International Islamic University Malaysia, Jalan Gombak, 53100 Kuala Lumpur Malaysia) Abstract: Malaysia belongs to the family of British Westminster system and the English common law. While the external forms and trappings may present a foreign legacy, the actual working of the country's constitutional and legal systems reveals otherwise; namely the indigenous character and temperament. Given the circumstances this is something natural or that the indigenous character has emerged as something that is inevitable. But whatever the truth behind the phenomenon is, the standard to be used now has to be democracy and constitutionalism; not whether Malaysia should follow British tradition or otherwise. In other words, the origin of a practice or an institution is not important for what is more crucial today is whether such could be justified within the existing democratic framework. Key words: constitutionalism; constitutional law; constitutional history; legal history; constitutional system; Westminster and parliamentary system; common law 1. Introduction Malaysia is a federation of thirteen states, eleven in the Malay Peninsula and two in Borneo. Together with Brunei Darussalam and Singapore, Malaysia used to be under the British rule which began in the end of 18th century. Today the country belongs to the Commonwealth group of nations with a Westminster constitutional system and a common law legal system. As Federation of Malaysia edges towards the 50th anniversary of independence next year there are many aspects of her system which merit scrutiny, something that may be useful from the perspective of comparative constitutional law and legal system.2 Some scholars such as de Smith argued that Westminster model was one of the well-known British exports in the Commonwealth. However a closer look at the systems reveals that most of the provisions have been designed with local interests and peculiarities in mind. Indeed the Reid Commission, which was charged with the duty to draft the Malaysian Constitution, actually did not agree with some of the provisions which sought to protect the indigenous community. In any case although the indigenous elements5 may not be the pillars of her Abdul Aziz Bari (1959- ), male, DPA, LLB Hons, LLM, Ph.D., professor of Public Law Department, International Islamic University Malaysia, editor of IIUM Law Journal; research fields: interest, public law, comparative law and legal theory. 1 This term has its origins in the Palace of Westminster in London, United Kingdom. This old palace is now houses British parliament, which consists of the House of Lords and House of Commons. 2 Some of the ideas printed have earlier been presented in a paper at the Third ASLI Conference held in Shanghai, People's Republic of China on 25-26 May 2006. 3 S.A de Smith. Westminster Export Model: The Legal Framework of Responsible Government (1961) 1 JCPS 9. See also his Constitutional Laws of the Commonwealth. Vol.I. Oxford University Press, 1957. 4 Report of the Federation ofMalaya Constitutional Commission 1957, No.330, London: HMSO, 1957. For some insights on these see Abdul Aziz Bari. Malaysian Constitution: A Critical Introduction. Kuala Lumpur: The Other Press, 2003: 43-50. Jan. 2007, Volume 4, No.1 (Serial No.26) I

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