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English Law

Malaysian Legal System


Historical
background
Formal
Development reception and
application

English
Law
Historical Reception of English Law
in
TheMalaysia
Straits
Settlements

The Malay
States

The Borneo
States
The Straits Settlements
• The British had become a major colonial power by the
middle of 18th century
• The early days of British colonization and English law
particularly in Peninsular could be traced from the history of
Straits Settlements (SS) comprised of Penang, Singapore and
Malacca.
• Started as a cession territory for the British East Indian
Company (EIC), the SS were put under the British colony
care by the Secretary of State for the Colonies.
Penang
• The Island of Penang was the first territory to be acquired
by the British.
• 1786 – Francis Light obtained a cession of the Island from
the Sultan of Kedah on assurance that British shall render
protection for Kedah from the attack of Siam.
• Although the terms in the 1786 agreement only conferred
right to occupation, it was later turned to become an actual
cession of Penang from Kedah to British after the Sultan
was forced to enter into a Treaty with the EIC in 1791.
• As a consideration, a pension of 6,000 dollars was paid to
the Sultan
Early legal system of Penang
• Penang was held under the authority of Governor General of India
after its acquisition by Francis Light.
• Francis Light on the other hand was made the first Superintendent to
preserve good order in the Settlement and to try and judge all persons
except for British subject.
• The judicial hierarchy consist of Superintendent, the Magistrate and
Second Assistant. Any judgement passed by the Magistrate need to be
submitted to the Superintendent before its execution. However, the
Superintendent himself is not authorised to pass death sentence and
such execution need to obtain approval from the Governor General of
India
• Local headmen were appointed to deal with petty
cases among the local people.
• Local customs and law were allowed to be practiced
subject to application of English Law when it is just
and expedient.
The Royal Charter of Justice 1807
• The Royal Charter of Justice 1807 is the most significant event in
Malaysian legal system.
• It marked the introduction of the first statutory English law into
Malaysia.
• It established the Court of Judicature of Prince of Wales Island which
was to exercise the jurisdiction in all civil and criminal matters of the
superior courts in England ‘as far as Circumstances will admit’ and
jurisdiction as a ecclesiastical court ‘so far as the several Religions,
manners, and customs of the inhabitants…will admit’.
• The Charter did not expressly introduced English Law however its
provisions were interpreted by the judiciary as having introduced English
Law, as it stood in England on 25th March 1807 into Penang.
• E.g: Kamoo v Bassett (1808) 1 Ky. 1
Singapore
• Singapore was said to be formally founded in 1819 by Stamford
Raffles, an official of the British East Indian Company (EIC).
• The Island was in actual under the control of the Malay
kingdom of Johor who exercised jurisdiction in accordance with
the Malay customary law
• 1819 – Stamford Raffles had manipulated the political chaos in
Johor to persuade the Johor Sultan to enter into Treaty with the
British to allow the British to take control of Singapore in
return of pension to the rulers.
• 1824 – British acquired complete sovereignty over Singapore
thru a Treaty with the Sultan
Early legal system in Singapore
• Stamford Raffles had an agreement with the Sultan and Dato’
Temenggung which define the rights of all the parties.
• All cases concerning religion, marriage, and inheritance, the
‘laws and customs of the Malays’, where not contrary to
‘reason, justice or humanity’, would be respected.
• Raffles drew up a set of laws, based on English law for the
administration of justice. However, large power of discretion
left to the magistrates.
Malacca

• Prior to 1824 – Dutch hold the authority over Malacca.


Although the British once occupied Malacca peacefully in
1795, but the power was returned to the Dutch in 1818
• In 1824 – British acquired Malacca from the Dutch in a
trade-off Treaty, with Bencoolen going to the Dutch
under the terms of the Anglo-Dutch Treaty
• In 1826 – Malacca become part of the SS and through the
introduction of the Second Charter of Justice, English
law was formally introduced and abrogated the Dutch law
previously administered.
The Second Charter of Justice1826
• In 1826 – the three Settlements (Penang, Singapore & Malacca)
were incorporated into the SS
• The Second Charter of Justice, which contained almost the same
provisions as to the First Charter, had introduced English Law as
it was stood on 27 November 1826 with modification if
necessary because of the various races, religions and customs of
the inhabitants.
• The Charter extended the jurisdiction of the Court of Judicature
of Prince of Wales Island to Singapore and Malacca and was
called “the Court of Judicature of Prince of Wales Island,
Singapore and Malacca”
• Despite the introduction of the Second Charter,
administration of justice in SS was considered
unsatisfactory as there was only one professional judge,
known as the Recorder who was based in Penang and
seldom visited Malacca and Singapore.
• Although there were lay judges appointed to assist the
Recorder, their judgments were considered bad.
• The system was considered ineffective to cope with the
increasing needs resulting from the active economic and
social growth in the SS.
Third Charter of Justice 1855

• A Third Charter of Justice granted in 1855 to remedy


the defects in the system.
• The Charter enabled the reorganization of the whole
Court system. An additional Recorder was appointed
for Singapore and the jurisdiction of the Penang
Recorder was further extended.
The Straits Settlements after 1855
• In 1867 there was a transfer of administration of SS from
India to Colonial Office. Legislative Councils of the Straits
Settlements was formed to authorize enactment for the
settlements with effect from 4th February 1867.
• The former court system was abolished and the Supreme
Court of the Straits Settlements was formed. The Singapore
Recorder was appointed as the Chief Justice of the Straits
Settlements
• The Civil Law Ordinance 1878 empowered the Supreme
Court of the Straits Settlements to administer common law
and equity concurrently and provided for latter to prevail in
the event of conflict.
• English Law was introduced by other legislation such as:
• English statutes enacted before 1st April 1867 and
extending to India as well as those enacted after that
date and extending to the Straits Settlement;
• Indian statutes enacted before 1st April 1867 and
extending to the Straits Settlements.
In brief…
• First Charter of Justice
• Introduced in 1807
• Penang
• Second Charter of Justice
• Introduced in 1826
• Penang, Malacca & Singapore
• Third Charter of Justice
• Introduced in 1855
• Straits settlement
Ceded vs Settled territory
• There was an issue raised with regard to the status of Penang
and Singapore whether they were ceded or settled territories.
This would determine the lex loci or law of the territory.
• According to the common law principles, if a territory was not
previously owned or occupied (terra nullius), later discovered and
settled by the British, English law shall becomes the lex loci on
the date of the settlement.
• On the other hand, if the territory was a owned or occupied by
other authority, later acquired by British through cession or
conquest, the law previously existing continues to be in force
until changed by British.
• Although historically Penang was regarded as ceded
territory but for the purpose of determining the lex loci
the precedent had decided it differently.
• E.g: Fatimah v Logan [1871] 1 Ky 621
• It was based on the assertion of Penang was uninhabited
when he landed to the island.
• However, the court did not decide the issue merely on the
fact of inhabitant as there were also contention and
evidence showing that there were earlier Malay inhabitants
before the coming of Francis Light
• E.g: Ong Cheng Neo v Yeap Cheah Neo & Ors
[1872] 1 Ky 326, 343-4

“it is really immaterial to consider whether Prince of Wales


Island, or as it is called Penang, should be regarded as ceded or
newly settled territory, for there is no trace of any laws having
been established there before it was acquired by the East India
Company. In either view the law of England must be taken to
be the governing law so far as it is applicable to the
circumstances of the place, and modified in its application by
these circumstances.”
• Singapore in general was regarded as a ceded territory
although prior decision in Ong Cheng Neo v Yeap Cheah Neo
& Ors was held to be equally applied to Singapore.
• E.g: Isaac Penhas v Tan Soon Eng [1953] MLJ 73
• This was also evident by the agreement between Raffles
and the Johor rulers with regard to the religion, marriages
and inheritance, the laws and customs of the Malays,
where not contrary to reason justice and humanity would
be respected.
• In all other cases, English law would be enforced with due
consideration to the usages and habits of the people.
The Malay States
• British intervention to the Malay states began in the second
half of the 19th century.
• Unlike the Straits Settlements, most of the Malay states were
British protected states whose rulers continued to reign. The
Malay rulers concluded treaties and agreements with the EIC
on different occasions but in similar form whereby the Malay
rulers in return for the British protection against any
conflicts, agreed to accept British advisers whose advice had
to be sought and acted upon in all matters except those
concerning Islam and Malay custom
• In the Malay states, adat law mixed with Islamic law was used
to administer justice. Malay adat was administer to the Malays
and non Malays were govern by their own personal laws.
• Through the Residential system, the British imposed
indirect rule over the Malay states and formed the
Federated Malay States (FMS) comprised of Perak,
Selangor, Negeri Sembilan and Pahang.
• The other five Malay states were regarded as
Unfederated Malay States and enjoyed greater
autonomy than FMS
• As the Malay States were not British territories,
English Law could not be imposed through the
common law principle of reception. The English
Law could be introduced on a voluntarily basis.
• The development of English Law in the Malay States
was not uniform.
• English Law was introduced informally and indirectly
through the Residential System in two ways:
I. The enactment, on the advice of the British
administrator and number of specific legislation
modeled on Indian legislation which was based on
English Law.
II. The decisions of the courts established by the British
administrators.
• The Unfederated Malay States received English Law
formally when the Federated Malay States enactment was
extended to them by the Civil Law (Extension)
Ordinance 1951
Borneo States
• Sabah and Sarawak are referred to as the Borneo states
• Sabah and Sarawak became British protectorates in 1888-1946 before both
the states were ceded to the British crown and became Crown colonies.
• There were no formal reception of English law before 1946 as both states
were under private administration of the British North Borneo company
(Sabah) and the Brookes family (Sarawak)
• Sarawak introduced English law through Order L-4 1928 which states that
English law would be introduced with some modifications by the white
Rajah. Sabah followed with the Civil Law Ordinance 1938.
• The written laws of the Borneo states were mainly derived
from legislation in force in Singapore and the Federation
and indirectly from laws of India and United Kingdom
• The reception of English law in Borneo states was
formalised by the Sarawak Application of Law Ordinance
1949 and the North Borneo Application of Law
Ordinance 1951.
• However, the application of English law and equity had
been long assimilated informally and indirectly through
the same means as in the Malay states.
To be continued
Development of English law
Formal reception and application of English law

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