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Historical Background - Coggle Diagram
Historical Background
What was the applicable law before British Intervention in the Malay States
The Introduction of English Law
The Straits Settlement
Penang
British obtained formal cessation from the Sultan of Kedah in 1786 in return for protecting the state from Siamese attack.
From 1786-1807 - there were no body of laws/fixed laws administered, legal system = chaos
The Royal Charter of Justice 1807 (RCJ)
Introduced proper legal systems in Penang, English law is formally introduced in in state.
Established the Court of Judicature of Prince of Wales Island
Jurisdiction in civil, criminal & ecclesiastical (religious) matters
Laws of England (common law + equity that were in force in England) as far as local conditions & circumstances will allow
Consists of Governor, 3 Councillors, and a "Judge" (Recorder of Prince of Wales Island)
Kamoo v Bassett (1808):
Facts
: Case in relation to assault and battery. Case was before the Recorder (judge), damages claimed was RM600 but was awarded RM150
Held:
CJA applies retrospectively to civil injuries & crimes committed before it came into force. Its purpose is to protect native inhabitants from injustice & oppression. (it was done to clean up the mess of the RCJ)
Although not specifically stated in CJA, provisions by Courts to have introduced English law 1807 to Penang.
Has been modified to suit local situations & circumstances.
In the Goods of Abdullah (1835):
Issue:
Whether a Muslim can dispose off his entire property by executing a will during his lifetime.
Held:
English law was introduced to Penang by the 1st RCJ. By applying English law, the testator may give away all his property by will as allowed under English law but not under Islamic law. Muslim law was sidelined.
Per Sir Montague Smith in Yeap Cheah Neo v Ong Cheng Neo:
"By applying general principles in the Straits Settlements, its been held that the statutes on matters peculiar to the local conditions of England are not adapted to the circumstances of the colony, do not belong to the general law of England maybe introduced into it".
Malacca
Prior to 1824 - Dutch rule
1824 - Anglo-Dutch Treaty between the Dutch & British executed, Dutch had Indonesia, British got Malacca
At the time of cession, laws applicable was Malay customary laws, Islamic laws, customary laws of non-Muslim inhabitants & certain Dutch laws
2nd Royal Charter of Justice 1926 (2nd RCJ)
To extend provisions of the 1st RCJ covering Singapore & Malacca
A new court - The Court of Judicature of Price of Wales Island for Singapore & Malacca was introduced
Charter introduced the General Law of England (as it existed in 1826) into the Straits Settlements, subjected to local conditions
Straits Settlements have received more English law, but only 1 Recorder (judge) remains in Penang & visits Malacca & Singapore twice a year
Choa Choo Neo v Spottiswoode:
Court ignored Chinese customary law on the making of a devise giving property to charity.
Held: "That the devise is not charitable (applying English law). It is clear that in England (such devise) would be void".
Rodryk v Williamson (1834)
Malkin R held: "That with the introduction of the Charter, it supersedes Dutch law and the law introduced was English law".
Sahrip v Michelle:
They argued on the ownership of land. When Sahrip planted the land/crops of the land, he had rights to the title of the land. Hence court held that the land belonged to Sahrip and accepted local customs
Singapore
Singapore was under control of Johor prior to the presence of the British
British had trading posts in Singapore since 1819 & was in control in certain areas of trade/ports
Singapore proved to be a prized settlement. By 1820, it was earning revenue and 3 years later trade surpassed Penang
British manipulated a succession dispute - recognised the dispossessed son of the Sultan of Johor as the rightful Sultan.
This is done on the condition he signed a treaty with the British
Application of English law in the straits settlements
The Royal Charter of Justice 1807 provides that:
"so far as the local circumstances will admit
"so far as local conditions and inhabitants will admit"
"so far as several religions, manner and customs of the inhabitants will admit"
The Malay States
When the Straits Settlement (Penang, Malacca and Singapore) were colonies under direct British rule, the rest of the Malay states were busy with Sultan succession disputes.
Formation of the federated Malay states:
In 1895, the Treaty of Federation, 4 states: Perak, Selangor, negeri Sembilan & Pahang became "Protected States" aka Federated Malay States
All 4 residents were placed under a Resident-General who was made accountable to the Governor of the Straits Settlements
Federated Malay States all earned via manipulation of State Rulers: treaties were executed and the Sultan accepted a British Resident whose advice had to be asked & acted upon in all matters except matters relating to Malay religion & customs
Perak:
1873: Sultan of Perak - Raja Ali passed away
Succession tussle occurred as to who will become the new Sultan of Perak: Raja Abdullah or Raja Ismail
British supported Raja Abdullah and became Sultan of Perak
In return, a British Resident was appointed - JWW Birch made the 1st Resident of Perak
Selangor:
Many problems: Piracy and civil war in Klang
1875: British forced Sultan Abdul Samad to sign an agreement that included the appointment of a British Resident - JG Davidson
Pahang:
1888: A British shopkeeper was murdered near the Sultan's palace
British used the issue to compel the Sultan to accept a British Resident - JP Roger
Negeri Sembilan:
1872: Ruler of Negeri Sembilan Dato Kelana Sedeng dies.
State divided into 2 and ruled by 2 Malay Chiefs. British supported Dato Kelana Sayed Abd Rahman.
1889: Martin Lister appointed the British Resident
What was the applicable law before the British intervention in the Malay states? - Ramah v Laton:
Thorne J said to the effect that Muslim law is not foreign law, is it the law of the land and the local law is a matter of which the court must take judicial notice.
Formal reception of English law in the Federal States::
Civil Law Enactments Act 1937:
English common law and rules of equity become the governing law in civil, commercial, criminal matters replacing custom and religious law
Local laws (religious and customary law) was limited to personal matters i.e. family matters and inheritance
1951 Civil Law (Extension) Ordinance:
Provides that S2 of the Civil Law Enactment 1937 is hereby extended to apply to the states of Johor, Kedah, Perlis, Kelantan and Terengganu
British Rule in the Unfederated Malay States:
The Bangkok Treaty of 1909: a treaty between UK & Ireland and the Kingdom of Siam - Siam surrendered their claims to the 5 states to the British
British Advisors were appointed in each state
Law administered was Islamic laws and Malay customary laws also practised
= British established courts and appointed judges
British Indian Statutes were applied
East Malaysia
Sarawak:
1839: James Brooke came to Sarawak
Internal problems occurred when Raja Muda Hashim offered him the position of Governor of Sarawak in return for controlling civil war
Brooke's main challenge was to restore law and order in Sarawak, and provide proper administration & to suppress piracy where he succeeded
1841: became Governor of Sarawak
Reception of English Law in Sarawak: Law of Sarawak Ordinance 1928
Formal reception of English law done via Law of Sarawak
Law of England so far as its not modified by orders or other enactments issued by His Highness the Rajah of Sarawak or with his advice, so far as its applicable to Sarawak, having regard to the native customs and local conditions, shall be the law of Sarawak
Sabah (formerly Borneo)
Administered by the Sultans of Brunei and Sulu
1881: Sabah placed under administration of the North Borneo Company.
1888: Governor of the Straits Settlements became High Commissioner of Brunei, Sabah & Sarawak
1881 - 1902: various laws enacted i.e. Native Rights to Land Proclamation 1889, the Abolition of Poll Tax Proclamation 1902, the Village Administration Proclamation
Reception of English Law: Civil Law Ordinance 1938:
CLA 1938 similar Law of Sarawak Ordinance 1928
1951: CLA 1938 replaced with the Application of Law Ordinance
Pre-Colonial Legal History of Malaysia
The Malacca Sultanate
Palembang and Majapahit Empire:
Melaka was founded by Parameswara - a price descending from Palembang
His conversion to the Islamic faith is an impetus for Islamisation of the peninsula and the gradual replacement of indigenous practices along with Hindu and Buddhist tenets
A remarkable development during the reign of Sultan Muzaffar Shah, where orders were issued to compile laws into Hukum Kanun for the sake of promoting uniformity of justice
Malay Customary Practices:
Adat Temenggong
- favors the patriarchal Malay customary law
Adat Perpatih
- favors the matrilineal Malay customary laws originating from Sumatra and observed in the area of present day Negeri Sembilan
Chinese & Indian Settlers
Contributed to the development in mining & commercial agriculture
The Chinese:
Had their own headman who dealt with disputes amongst themselves
Own customs in succession & family matters
Own codes in commercial matters
Chinese Affairs Officers were appointed - Official recognition given to Chinese customs & laws - no changes made to a system long recognised
The Indians:
Mostly employed as laborers in rubber plantations and other public services
A Malayan Controller of Labor takes care of Indian affairs
Free to practice their own customs but still subjected to the laws of the land
Colonisation
Portuguese/Dutch Influence
1511: Portugal makes 1st European colonial claim on Malaya, capturing Malacca
Magistrates were appointed to settle civil & criminal cases
Islamic laws and Malay customary laws practiced alongside Portuguese laws
1611: Dutch East India Company and local allies pushed Portuguese from Malacca.
Dutch laws applied alongside Islamic laws and Malay customary laws
Dutchies were more into trade hence the position of Islamic laws and Malay customary laws weren't disturbed as much
British Colonial Rule
Considered the landmark period of Malaysian legal history, intervention of British colonial powers heavily impacted the fabric of our legal system
Pre-Colonial History
Prior to colonisation, Malaya was inhabited by ancestors of Negritoes and Senoi, the Pro-Malays from South China and the Deutro Malays from Uinnan in South West China.
Migration in India resulted in establishments of Hindu and Buddhist kingdoms in Indo-China
Buddhist Kingdoms of Sri Vijaya in Sumatra and the Javanese Kingdom of Majapahit in Sumatra in the 14th century
Early development of MLS in the Malacca Sultanate
Legal Pluralism
Legal Pluralism: the interaction between 2 or more laws within a national legal system
Adat (Customs)
Many definitions: laws, customs, customary behaviour, proper behaviour, and customs with legal consequence
Malays in Peninsular Malaysia are governed by Adat & Islamic law in addition to the general law
Characteristics of Adat: varies between regions, largely unwritten except Sarawak, has a difficult nature
The establishment of Syariah Courts, dealing with Muslim law matters creates uniformity between laws in Peninsular Malaysia, Sabah & Sarawak.
Adat Temenggung:
Applicable in all states except Negeri Sembilan & Naning in Malacca
Favours the male side of the family
Adat Perpatih:
Applies only in Negeri Sembilan & Naning in Malacca
Favours the female side of the family
Sabah and Sarawak
3 categories of customary laws:
Malay customary laws
Native customary laws applicable to non Malay natives
In Sarawak, Chinese customary laws are found in statutes
Chinese and Hindu Customary Laws
Both customary laws are in decline especially in matrimonial matters due to uniformity of laws via the Law Reform (Marriage & Divorce) Act 1976
Prior to LRA, Hindu & Chinese customary laws were recognised as part of the law of the land
Polygamous marriages allowed, although invalid in the eyes of English law. But since it is a respective customary law, it is recognised in Malaysia