The progress of Malaysian law. Annual lecture delivered on 6 December, 1994
R.H. Hickling, a senior Malaysian legal figure and former academic at the University of Malaya and Universiti Kebangsaan Malaysia, delivered this annual lecture to the Malaysian Branch of the Royal Asiatic Society on 6 December 1994. Writing in the mid-1990s, at a moment of rapid social and constitutional change, Hickling offers a broad, reflective meditation on the trajectory of Malaysian law from its tripartite origins in adat, Islam, and the English common law through to the challenges posed by federal centralization, the expansion of legal education, and the corrosive influence of television on legal culture. His overarching argument is that while the common law has been of “inestimable benefit” to the country, the legal system must now evolve in its own cultural direction rather than remain a passive inheritor of Westminster models.
Summary
Hickling traces the foundations of Malaysian law through three strands—custom, Islam, and common law—superimposed upon one another rather than displacing each other, and embedded within a federal constitutional framework that emerged from the 1946 unitary constitution, the 1948 Agreement, and the 1957 Federal Constitution. He notes that the subject of Malaysian legal history has been “sadly neglected,” with only M.B. Hooker and Tan Sri Ahmad Ibrahim having done useful work, and calls for a dedicated university chair in the field (pp. 1–2). The lecture then moves to the post-independence period, where the release of nationalist energies produced what he terms “the Malay renaissance,” buttressed by Articles 3 and 153 of the Federal Constitution, which derogated from the equality principle of Article 8 but were cushioned by economic growth (p. 3).
A significant portion of the lecture is devoted to the tension between Westminster parliamentary models and Malaysian political culture. Hickling recounts two personal episodes—his suggestion to circulate a draft Bill to interested parties, and his proposal that the Internal Security Bill be referred to a Select Committee—to illustrate that adversarial confrontation, while retained, may not suit a different cultural environment (pp. 5–6). He invokes Lord Bryce’s observation on centripetal and centrifugal forces in federations to argue that the move of power to the centre in Malaysia is “irresistible,” with State powers diminishing, the Senate dominated by federal appointees, and the Rulers’ residual feudal privileges (immunity from suit, power to withhold assent) already abolished (pp. 6–7).
The final sections address the judiciary, legal education, and television. Hickling expresses concern that post-Berthelsen legislation placing the executive beyond judicial control in areas of personal liberty is “subtle and insidious” in its damage to morale (p. 8). He warns against following the American model of legal proliferation, citing the 1990 statistic that the United States had more lawyers than the rest of the world combined, and calls for an institute of advanced legal education, suggesting the University of Malaya’s Law Faculty concentrate purely on postgraduate studies (pp. 9–11). His most original intervention concerns television, which he calls “the Pied Piper leading society nowhere,” arguing that televised trials convert legal procedure into show business and “help[ed] to drown out abstract thinking” (pp. 13–14).
Key Findings
- Hickling identifies three foundational strands of Malaysian law—adat, Islam, and common law—and argues the common law should be reviewed and amended rather than repealed, describing it as “a vast, psychological force which, like a great wave, broke upon this peninsula, but now recedes” (p. 4).
- He documents the centralization of federal power: the Senate is “now dominated by federal appointees,” the Federal Government controls both Houses of Parliament, and State interests are “subsumed in those of the Federation” (p. 7).
- The Rulers’ two key feudal privileges—immunity from suit and the power to withhold assent to legislation—have been abolished, marking a transition from feudal executive to democratic governance (p. 7).
- On legal education, Hickling cites the Attorney General Datuk Moktar Abdullah’s 1994 concern that with 2,300 local law students and 3,970 studying abroad, “there is widespread concern” that professional quality will be jeopardised (p. 10).
- He proposes that the University of Malaya’s Law Faculty, with its “fine law library, proximity to the International Islamic University, [and] ready access to the National Archives,” should become a dedicated institute for advanced legal education (pp. 11–12).
- On television, Hickling notes that Iceland once banned TV transmissions for one day a week and one month a year, and suggests a similar policy during the fasting month as a corrective to what he calls television’s “insidious effect on the administration of justice” (p. 14).
Conclusion
Hickling’s definitive takeaway is that the spirit of the law must be preserved even as its forms evolve. Closing with a reference to the Pollock-Holmes Letters, he invokes the Frenchman’s reply that a gentleman need not know Latin and Greek but “must have forgotten them”—a metaphor for retaining the underlying moral principles of law while shedding their archaic vocabulary. His final admonition is that unless humanity lives in accordance with the moral principles on which law itself is based, there is no hope for civilization (p. 15).
Context
- The lecture was delivered to MBRAS, whose stated objects include “the increase and diffusion of knowledge” in Asian studies; Hickling acknowledges he has offered “little in the way of knowledge” but argues the need for general perspective (p. 15).
- The lecture reflects the MBRAS’s role as a forum for interdisciplinary intellectual exchange, with Hickling drawing on Toynbee, Orwell, Bacon, Ibn Khaldun, Arthur C. Clarke, and Paul Kennedy alongside legal sources.