Daniel Samah (Federal Court of Malaysia) & Tan Sri Datuk Nallini Pathmanathan have posted Between the Thames and Sungai Klang: The Struggle to Decolonize Malaysia’s Legal Paradigm on SSRN. Here is the abstract:\
This research examines the imperative task of decolonizing Malaysia's legal paradigm, with a focus on lessons derived from India's struggle for independence and subsequent legal reforms. Authored by Abu Daniel bin Abu Samah under the guidance of Tan Sri Datuk Nallini Pathmanathan FCJ, the article elucidates the need for a departure from the entrenched reliance on English case laws towards a more interdependent legal framework. The authors contend that as Asia and Africa witness an influx of capital and businesses, it is time to reevaluate the dominance of English law in commerce.
Drawing parallels with India's constitutional evolution, the study underscores the significance of incorporating pre-colonial cultural values into legal systems. It highlights the pivotal role of India's Constitution in catalyzing "Swaraj" or independence, moving beyond borrowed constitutional ideals and emphasizing the importance of indigenous wisdom. The authors also discuss India's endeavor to reclaim its historical and linguistic identity through the renaming of cities and provinces, urging Malaysia to similarly embrace the task of "Malaysianizing" its legal system.
Furthermore, the research addresses the notion of a "captive legal mind" and the enduring influence of colonial education on legal traditions. The authors advocate for a shift towards local legal paradigms, recognizing the richness of Malaysian and Commonwealth jurisdictions. Additionally, the study introduces the concept of transformative justice, drawing inspiration from Frantz Fanon's call for a rejection of intellectual imperialism. It proposes a framework centered on rehabilitation over retribution, fostering a more accessible and egalitarian approach to justice.
In conclusion, the research posits that the struggle to decolonize Malaysia's legal paradigm is intertwined with the broader pursuit of national identity and cultural resurgence. By examining India's journey towards independence and legal reform, this study offers valuable insights and prospects for reshaping Malaysia's legal landscape, ultimately envisioning a society that upholds the values of justice, inclusivity, and cultural authenticity.