The Reception of English Law In Malaysia.

Malaysian legal history has been determined by events spanning a period of some six hundred years. Of these, three major periods were largely responsible for shaping the current Malaysia system. The first was the founding of the Malacca Sultanate at the beginning of the 15th century; second was the spread of Islam in the indigenous culture; and finally, and perhaps the most significant in modern Malaysia, was British colonial rule which brought with it constitutional government and the common law system. Before the British came, the pre existing law comprises Malay adat (customary) law and the customary laws of the various communities. Malay adat law was the basic law of the land since the heyday of the Malacca Sultanate in the mid- fifteenth century. It was combined of indigenous Malay adat law with Hindu Buddhist element, overlaid with principles of Syariah law; the latter received with the coming of Islam early in the same century. 1 Britain had become a major colonial power by the middle of the eighteenth century. For the strategic reasons stemming from Anglo- French rivalry and the desire to maintain and develop the China trade, the British were motivated to find a suitable port where ships on the voyage from India and China could refit and revictual.2 Common law was introduced to the Straits Settlement through Royal Charters of Justice. Its application was extended to the Malay states through administrative arrangement. It was first introduced through legislation on specific matters based on British Indian models, and through the British or British-trained Bar and Bench, the reception of the common law was later formalized by a series of enabling legislation, the first enacted in 1937. Common law was received in similar manner in the Borneo states.3


Wan Arfah Hamzah & Ramly Bulan. 1995. Malaysia Legal System.2nd Edition. Kuala Lumpur: Dewan Bahasa dan Pustaka.p: 7 2 Wu Min Aun . 2000. The Malaysian Legal System. 2nd Edition. Petaling Jaya: Pearson Education.p:9 3 Wan Arfah Hamzah & Ramly Bulan. 1995. Malaysia Legal System.2nd Edition. Kuala Lumpur: Dewan Bahasa dan Pustaka.p: 7


The Malaysian Legal System. 5 It is the beginning of the new era of British colonialism in Malaysia. Malaysia Legal System. In 1785 Captain Francis Light made another visit to Kedah. Kuala Lumpur: Malayan Law Journal. Sultan Husin and Temenggong Abdul Rahman. Tunku Abdullah was installed as Sultan. Similarly. A new treaty the same year was forced on him. This agreement was made likewise in exchange for British protection 4 5 Sharifah Suhana Ahmad. Upon the demise of Sultan Muhammad Jiwa in 1778. 2nd Edition.The beginning of British colonization 1) The Strait Settlement -Penang British were able to gain a foothold over Malayan soil was in large part attributable to the actions of the early Malays rulers or Sultans.1999. the Sultan soon becomes disillusion and in 1791. Sultan Muhammad Jiwa of Kedah had sought the aid of the English East India Company in a succession dispute. By 1790.4 The Sultan of Kedah also had ceded the island on the assurance of British protection in the event that his state was attacked by Siam. Captain Francis Light was dispatched in aid of the Sultan and an agreement was entered into that in exchanged for British aid in restoring Sultan Muhammad Jiwa to the throne of Kedah . Sultan Abdullah agreed to ‘cede’ Penang to the British in exchange for financial aid and the promise of British in case of succession disputes. Petaling Jaya: Pearson Education p: 9 2 . While Captain Francis Light conveyed this condition to his superiors. this time seeking the piece of land known as ‘Pulau Pinang’. they chose to ignore it in the Treaty. As early as 1771. the British obtained the island of Singapore in through a lease from the Sultan of Johore after an agreement between Stamford Raffles. confirming the cession of the island in return for a pension of 6000 Spanish dollars. his son. p: 5 Wu Min Aun . the British be permitted to establish a warehouse in Kuala Kedah. he made an unsuccessful attempt to retake Penang. 2000. -Singapore Singapore was founded in 1819 amidst a backdrop of Anglo-Dutch rivalry.

2000. 2nd Edition. Under that system. 6 After that. By 1888. 1819 which allowed the British to establish factories on the island in return for a pension. Kuala Lumpur: Malayan Law Journal. Then. Stamford Raffles shrewdly manipulated the succession dispute by offering to recognized the dispossessed elder son of the deceased Sultan Mahmud as the rightful Sultan of Johore but on the condition that he concluded a treaty with the British. a treaty was promptly concluded on 6 February.1999. the British administration set up a system of indirect rule commonly referred to by historians as the Residential System. p: 5 Wu Min Aun . Selangor. The British Resident was placed under a Resident General responsible 6 7 Sharifah Suhana Ahmad. whereby. Kuala Lumpur: Malayan Law Journal. the Malays peninsula becomes a British monopoly.1999. it was agreed that the Malay Peninsula would be treated by the British and respected by the Dutch as being a British sphere of influences. each Sultan accepted a British Resident whose advice had to be asked and acted upon in all matter of administration and revenue. Petaling Jaya: Pearson Education p: 9&10 8 Sharifah Suhana Ahmad. under the Anglo. Pahang. In this manner. Malaysia Legal System. Malaysia Legal System. With a treaties giving them a legal basis for control. the four states were brought together in a federation called Federated Malays States. while Batavia would remain the Dutch sphere of influences. and Negeri Sembilan was firmly established through a series of treaties. p: 5 3 . except Malay religion and customs. was temporarily occupied by the British in 1795 and was formally handed over to the British on 1824. The Malaysian Legal System.7 -Malacca Malacca. which had been under Dutch rule. British control of the Malay State of Perak. Malacca was added to Penang and Singapore in1826.8 2) The Malay States -Federated Malay States.Dutch Treaty.over the various claimants to the throne of the Johore. and together formed the colony called Strait Settlements. In 1895.

Kuala Lumpur: Dewan Bahasa dan Pustaka. Kedah. Later Sarawak was ruled by the ‘White Rajahs’. Petaling Jaya: Pearson Education p:26 10 4 . Kelantan. Raja Muda Hashim of Brunei sought the aid of an ex-officer of the East India Company. 1995. the four northern states had few economic advantages that warranted any form of tight administrative control. and the state had modern working administrative structure. Except Johore. In order to settle dispute. who was designated High Commission of the Federation.10 that is: 1) James Brooke (1841-1868) 2) Charles Brooke (1868-1917) 3) Vyner Brooke (1917-1941)11 9 Wu Min Aun . Sultan Abu Bakar. James Brooke was proclaimed as Governor of Sarawak and successfully brought the rebellion under control. and Perlis.p:7 11 Wu Min Aun . in 1895 its enlighted monarch. The Malaysian Legal System. 2nd Edition. This country enjoyed a higher level of autonomy partly attributable to the fact that they came under British protection at a later date.9 3) Borneo In Borneo in 1841. 2nd Edition. The Malaysian Legal System. the Governor of the Straits Settlements. indeed. Johore was unique among them in the sense that thought legally independent.2nd Edition. James Brooke. -Unfederated Malay States Unfederated Malay States consist of Johore. Terengganu. to quash the rebellion. Malaysia Legal System. the Brunei Sultanate was in political conflict due to a rebellion waged by Pengiran Indera Mahkota in Sarawak. 2000. gave the state a written constitution so that by the time a British Resident was formally accepted in1914. Petaling Jaya: Pearson Education p:22 Wan Arfah Hamzah & Ramly Bulan. This situation wan not unexpected.

in Kamoo v Basset (1808)1 Ky 1. The Third Charter did not introduce English law but repealed the Second Charter only to the extent necessary to reorganize the Court of Judicature.14 12 13 Wu Min Aun .1999. The charter established “The Court of Judicature of Prince of Wales Island (as Penang was then known) to exercise jurisdiction in all civil. 2nd Edition. where it stated that the Charter had introduced the law of England as it stood in 1826 so as to supersede Dutch Law in Malacca.12 Second Royal Charter of Justice of 1826 The Second Royal Charter of Justice was granted in 1826 when Singapore and Malacca were united with Penang. 2000.p:106 5 . 1995. Kuala Lumpur: Malayan Law Journal. Malaysia Legal System. Malaysia Legal System. The Malaysian Legal System. Kuala Lumpur: Dewan Bahasa dan Pustaka. It was interpreted that the Second Charter as introducing the law of England as it stood in 1826. p:15 14 Wan Arfah Hamzah & Ramly Bulan. for instances .The Charter of Justice Royal Charter of Justice of 1807 They were finally heeded more than twenty years after the founding of the island and it came in the form of a Royal Charter of Justice of 1807. The charter is perhaps the most significant event in modern Malaysia legal history as it is marked the first statutory introduction of English law into the country. It was interpreted by the court as introducing to Penang the law of England as it stood in 1807 in so far as it was suitable to the local condition and circumstances.2nd Edition. not only to Penang but to every part of the Straits Settlement.13 Third Royal Charter of Justice of 1855 The Third Royal Charter of Justice was granted on 12 August 1855 into Straits Settlement. criminal. granted to Penang. and ecclesiastical matters. Petaling Jaya: Pearson Education p:14 Sharifah Suhana Ahmad. The effect of the Second Charter was addressed by Sir Benjamin Malkin in the Malacca case of Rodyk v Williamson. forming the Strait Settlement.

As a result we have to follow their rules.Conclusion English law is a part of Malaysian Law. This two coexisted harmoniously and eventually they become rivals. The modification of English law that was introduced into the straits settlement is necessary to prevent from unjust and oppressive to the local people. Although the English law was introduced into the strait settlement. 6 . the local were still practiced especially in religion matters. Although there are some local who are not agree and refuse but their leader doesn’t have power anymore. Borneo is under one management that is under power of British. English law mean the common law and rules of equity are apply. which is all state in Malaysia-Straits of Settlement. There is also advantage after the British take over Malaysia. The modification must be compatible with local circumstances. The British bring their laws after they came here and taking our country and apply it in Malaysia without bloodshed. Malay states. And because of the power also our country are ‘sold’ to the British.

1999. Kuala Lumpur: Malayan Law Journal. 1995. Malaysia Legal System.2nd Edition. The Malaysian Legal System. 2) Wu Min Aun . 2nd Edition.Kuala Lumpur: Dewan Bahasa dan Pustaka. 7 .Bibliography 1) Wan Arfah Hamzah & Ramly Bulan. Petaling Jaya: Pearson Education 3) Sharifah Suhana Ahmad. Malaysia Legal System. 2000.

Sign up to vote on this title
UsefulNot useful

Master Your Semester with Scribd & The New York Times

Special offer for students: Only $4.99/month.

Master Your Semester with a Special Offer from Scribd & The New York Times

Cancel anytime.