COJ

Before the Charter of Justice was introduced into Malaya, there was no official
body of law in the first 20 years of British occupation. In 1788, Francis Light, who
was the first Superintendent received instructions from the Governor of India to keep
maintain new law in Penang. The content in the letter listed punishments for the locals
who commit crimes but the British settlers were free from any offenses which made
the locals extremely pissed and dissatisfied. This issue soon led to a legal chaos that
started with the case of Aphoe v Kehim (1797), when a Chinese male and a Chinese
lady convicted adultery and as a punishment, their head were shaved bald. These
events had caused dissatisfaction among the locals so they filed a complaint for
customary law to be applied but was ignored by the settlers as they only followed the
English Law and not the customary law.
Throughout the years, numerous complaints and pleads for an enhanced
system of administrating justice were made which finally lead to the introduction of
the First Charter of Justice (1807) in Penang. The charter was granted by British
Crown and the provisions of the Charter as follows: Firstly, the charter drafted laws to
be applied in criminal and civil cases. In criminal law, the Charter instructed the
courts to hear and decide prosecutions and offences including judging and execute
sanctions. The law listed in the Charter to govern criminal justice where the parties
given responsibility towards the English law was a must to be followed by all judges
and courts. For the civil cases, there were at least two essential yet important
requirements in the Charter. Firstly, it was stated in the Charter that the court shall
give and pass judgment and sentence according to Justice and Right. Secondly, the
Charter stated that where there is religious jurisdiction was consulted on the court, it
was to be practice ‘only so far as the religions, manners and customs of the
inhabitants admits’. Therefore, jurisdiction with regards to religious issues was only
allowed to be exercised when the religions, customs and manners allow it to do so to
avoid any types of unwanted chaos and disputes.
With the presence of the First Charter of Justice, the Court of Judicature was
established in the territory and the court held a wide area of jurisdiction to cover civil
and criminal cases as well as religious matters. That could merely be exercised if the
religions, customs and manners give the consent to do so. Sir Ralph Rice (English
Judge) constructed the above provision. He said that the criminal law was only part of
the law of England which was forced in Penang. In civil matters, justice must be
administered among the native people in accordance with their local laws and
customs. By introducing the Charter of Justice, it gave several effects to major cases
that arose in the Straits Settlements.
One being the case of Kamoo v Thomas Bassett. In this case, the plaintiff who
was a native Bengal was employed by the defendant who was a Lieutenant-Colonel to
be a table-servant with a salary of $6 monthly. From the day of his employment, the
plaintiff was treated badly by the defendant with that caused physical injuries on the
plaintiff. The plaintiff complained to the Police Magistrate that he was whipped 20
times on 20th July 1807 by the command of the defendant. The defendant was pissed,
he sent a sepoy (an Indian soldier serving under British) to fetch the plaintiff back and
then whipped him another 20 times then confined him. On 13th November 1807, the
defendant ordered the plaintiff to be tied up to a stake and had him whipped 100 times
for defaming the defendant to the Magistrate. Not having satisfied with this, the
defendant then placed the plaintiff under confinement for two and a half months again
Finally, he was dismissed from the defendant’s service. The plaintiff filed an action
for tort claiming damages for $600 but the defendant denied liability.
The court held that although the Charter did not in introduce English Law
definite terms but its provisions were interpreted by the judiciary as having introduced
English Law, as it stood in England on 25 March 1807, into Penang to be a territorial
law. The effect of it does not abolish the application of various native laws or
customs, but merely demolishing the significance of these laws. The main purpose of
the charter was to protect the local inhabitants from oppression and injustice.
Therefore, to ensure the suit applicable to the circumstances in Penang, it must be
modified before the application is done so that it is accepted to be the law of Penang
and obeyed by the local inhabitants.
Another case that was affected by the introduction of the Charter is the case of
Re Goods of Abdullah. The case was related to Islamic law where the deceased man
was a Muslim who died in Penang. The issue was, can a Muslim who died in Penang
devise his entire property by means of a will. According to Muslim law, a Muslim can
only devise 1/3 of his property to non-beneficiaries. The administration of the
property was given to the widow on the suspicion that there was no existence of will
at all. There was no dispute as to the execution of the paper treated as a will but it was
urged on the part of the widow as not being conformable to the rules of the
Mohamedan Law.
It was held by the judge by virtue First Charter of Justice that Muslims is
allowed to transfer his own property although it is in oppose with the Islamic Law.
This led to dissatisfaction and confusion among the people because the decision made
obviously ignored the Islamic law and formally applied the English common law on a
Muslim. First Charter that English law can only be used if ‘only as far as the religions,
manners and customs of the inhabitants admits’. However, the court did not follow
the order enshrined in the Charter which was to apply the customary law as it involves
religion, Islam. In fact, they judged the case by the English law in order to fullfil the
deceased’s will or last words to dispose all of his own property. The decision made is
unfair for his Muslim widower to be judged the cases with English law and to be left
with nothing from her dead husband’s property that he left behind.
In the case of Regina v Willans, there were two parties involved which is the
plaintiff Regina, the Police Magistrate and the defendant Willians where the
defendant refused to try a case involving one Chivatean, an agricultural labourer who
has frequently absented himself from work. The issue was whether a statute passed in
England in 1824 is applicable to Penang by virtue of the Charter of Justice.
The court held that the time where Penang became a possession of the British,
there were no inhabitants to claim the rights of being governed by any existing law
and no tribunals to enforce such laws. As such it is tough to assert that the law of
Kedah applies to the island of Penang after it was occupied by the English
administrators. Sir Benson Maxwell held that, Francis Light and his marines did not
come to Penang as colonizers but as a garrison to take possession as a ceded colony.
Therefore, the law of England could hardly become lex loci, as it would only become
the garrison members’ personal law. It was further emphasized that no other law
could be enforced except English Law when the English Law was first introduced in
any state in Malaya.
As a conclusion, the First Charter of Justice actually failed to win the
satisfactory and assurance from the locals as the judgements were not precise and
clear regarding religious matters. The local people who were supposed to follow their
own customary laws were interfered by the English common law. Due to customary
differences between the Europeans and the Easterns, the law did not bring just to the
locals as the judgements and sanctions have great a distinction.
Malaysia now still exercises different laws on people with different religion,
customs and races. After the colonization of the European countries, Islamic law is
still considered as the religion of the federation as enshrined in Article 3 of the
Federal Constitution. The nation established courts with special jurisdiction which is
the Syariah Court that holds the jurisdiction to govern Muslims of Malaysia.
According to the Article 121(1A) of the Federal Constitution, the courts referred to in
clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of
the Syariah Court. In other words, the Article 121(1A) is a provision to avoid any
unnecessary disputes with regards to jurisdiction between the Civil courts and the
Syariah Courts. Article121 (1A) of the Federal Constitution also states that is
jurisdiction of the high court has no power to govern in respect of any matter within
the jurisdiction of the Syariah courts and the reason of this provision is to avoid any
contradictions among the two courts. The conflict happens when Civil court intefere
the jurisdiction of Syariah Court and it also happens when Civil court over ruled the
decision of Syariah Court. Besides courts, two provisions where established in order
to avoid any circumstances we learnt from the past. Muslims are governed under the
Syariah Laws, Non-Muslims are governed under the Civil Law Act 1956. After the
laws were amended, disputes and arguments were finally settled.
On November 27th, 1826, the Second Charter of Justice was granted when
Singapore and Melaka were officially united with Penang, forming the Straits
Settlements. Once the Anglo-Dutch Treaty 1824 was signed between the Dutch and
British, the Second Charter of Justice was introduced in Melaka because British took
permanent possession to colonize Melaka in 1824. This Charter had abolished the
Recorder's Court, which merely served the Prince of Wales' Island, and established
the Court of Judicature of Prince of Wales' Island, Singapore, Melaka and Penang.
The main purpose of introducing the Second Charter of Justice was to increase
the jurisdiction of the Court of Judicature of Penang named as the Court of Judicature
of the Prince of Wales Island to Singapore and Melaka, which, Singapore and Melaka.
In criminal proceedings, the court was given the jurisdiction "to administer criminal
justice in such Manner and Form", which means the administration of criminal justice
must be similar with the courts in England, with "due attention being (given) to the
several Religions, Manners and Usages of the native Inhabitants". The court was to
"give and pass Judgment and Sentence according to Justice and Right" in civil
proceedings, which means the civil proceedings must be able to give equality and just
to the people. As a result, the Second Charter of justice was to deal by Sir Benjamin
Malkin in Melaka which was the case of Rodyk v Williamson.
In this case, a Dutchman left his property when he passed away. The issue was
whether the Dutch Law or English law should be applied to settle the matter.
Therefore, it was held that the Second Charter of Justice, which was the English law
had already superseded the Dutch Law when the Anglo-Dutch treaty was signed. The
law of England introduced was more important than the previous existing law used in
the territory. Despite the introduction of the Second Charter, justice administration in
Straits Settlement was still stated as unsatisfied as there was only one professional
judge, known as the Recorder who was based in Penang rarely visited and decide
cases in Melaka and Singapore. Although lay judges obligated to assist the Recorder,
their judgments were considered bad and unjust. As the result, the system was
considered ineffective to deal with the increasing requirements resulting from the
active economic and social growth in the Straits Settlements.
In Malaysia nowadays, the court system, legal system and laws are still similar
with the structure of British legal system structures. The Courts of Judicature Act
1964 is still applied to all the subordinate courts of Malaysia. Besides that, in Section
3, 5 and 6 of the Civil Law Act 1956 also states that the English Common Law and
Equity can be applied in Peninsular Malaysia, Sabah and Sarawak. Although the
application of the laws required certain qualifications such as when there is a lacuna
in law or there was no precedent case of the local circumstances, the English
Common Law was still applicable to the people of Malaysia.
The third and last Charter of Justice was granted in 12th August 1855. This
charter was granted to remedy and rectify the defects in the previous judiciary system.
Due to the establishment of this Charter, the British authority in the Straits
Settlements introduced the Court of Admiralty. This court was divided into two
divisions. One consisting a Governor or Resident Counselor and Recorder of
Singapore which holds the jurisdiction over Singapore and Melaka. The other having
jurisdiction over Penang consisting a Governor or Resident Counselor and Recorder
of Penang. In 1868, the Court of judicature of the Prince of Wales Island, Singapore
and Melaka was abolished with some further reconstructions, replaced by the
Supreme Court of the Straits Settlements.

Penang Settled or Ceded??????

The ratios to ascertain whether Penang was a ceded or settled colony are to
determine the essence of lex loci in Penang. It is essential for the local government to
determine either English law or Law of Kedah to be applied or used. According to the
common law principle, if a new territory is settled (territory previously not occupied
and uninhabited), the English law should be the law of territory starting from the date
of settlement. However, on the other hand, if the land is previously owned and
occupied, acquired by the British through official cession or consents, the previous
law would be continued to be in force in the land until British actually ordered to
change it.
'Settled colonies' were the territories obtained by discovery and occupancy.
These lands were still treated as terra nullius (nobody’s land) although were genuinely
uninhabited, or already governed by another sovereign. In such places, British settlers
still applied the laws of England that were applicable to their situation. These laws
when established could only be changed by either the Parliament at Westminster, or
by a local legislature. English law can be applied because it is said that the land was
not occupied by any other sovereign in the past before the settlers took over the land.
In 'conquered', or 'ceded' colonies, there was no extensive insertion of English
law. This reception of law allows the local inhabitants to continue applying the local
laws. However, the laws could be changed by either the King, or the Parliament at
Westminster. The word ceded is defined as surrender to a possession by treaty or a
formal cession. Blackstone makes a point that alternative grouping of colonies are
those obtained by conquest as being ‘cultivated’. In Vattel’s notation, inhabited lands
but not cultivated can be taken over by moving in without any formal conquest. If
they are inhabited though uncultivated they might have laws of their own.
The general principles for the introduction of English law into a 'settled' as
distinct from a 'conquered' colony were listed down by Blackstone in 1765. Justice
Blackburn in Milirrpum's case put the distinction thus: There is a difference between
settled colonies, where the land, being desert and uncultivated, is claimed by right of
occupancy, and conquered or ceded colonies. The words 'desert and uncultivated' are
Blackstone's own; they have always been taken to include territory in which live
uncivilized inhabitants in a primitive state of society. The difference between the laws
of the two kinds of colony is that in those of the former kind all the English laws
which are applicable to the colony are immediately in force there upon its foundation.
In those of the latter kind, the colony already having law of its own, that law remains
in force until altered.
There were several issues arose whether Penang is a ceded or settled colony.
Some said that if there was no law and sovereign in Penang territory at that period,
and the English people settled at the shore, Penang may be a settled colony while the
English will be the settlers of the island. According to the common law principles, if a
territory was not occupied before (terra nullius), then later found and settled by the
British, English law shall become the lex loci on the date of the settlement. In other
words, English law was introduced by settled colony. If Penang already had their own
law and sovereign at that period and the English colonizers ceded the territory without
any formal agreements or conquests, Penang will be said to be a ceded colony. On the
other hand, if the territory was an 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. Several arguments were put up but until
today, no one is still able to determine whether Penang was truly a settled colony or
settled colony.
There were several cases that were used to determine the lex loci of Penang.
The first case is about Kamoo v Bassett. In this case, the plaintiff who was a native
Bengal was employed by the defendant who was a Lieutenant-Colonel to be a table-
servant with a salary of $6 monthly. From the day of his employment, the plaintiff
was treated badly by the defendant with that caused physical injuries on the plaintiff.
The plaintiff complained to the Police Magistrate that he was whipped 20 times on
20th July 1807 by the command of the defendant. The defendant was pissed, he sent a
sepoy to fetch the plaintiff back and then whipped him another 20 times then confined
him. On 13th November 1807, the defendant ordered the plaintiff to be tied up to a
stake and had him whipped 100 times for defaming the defendant to the Magistrate.
Not having satisfied with this, the defendant then placed the plaintiff under
confinement for two and a half months again Finally, he was dismissed from the
defendant’s service. The plaintiff filed an action for tort claiming damages for $600
but the defendant denied liability.
The court held that the Charter of Justice applies retrospectively to civil
injuries and crimes committed before the Act came into force. The main objective of
the Charter of Justice is to protect the native inhabitants from injustice. Verdict for P
$150 with cost since the law might not be so generally known since the case happened
before the passing of the COJ. Although the Charter did not introduce English law in
express terms and its provisions were interpreted by the judiciary as introducing the
English law, as it already stood in England on 25 March 1807 into Penang. In this
case Penang is said to be a settled colony because the courts held that the provision of
the English Law even though the COJ is not yet to be introduced to Penang due to the
interpretation by the judiciary of the court applied the English law in the case.
In the case of Re Goods of Abdullah, the case was related to Islamic law
where the deceased man was a Muslim who died in Penang. The issue was, can a
Muslim who died in Penang devise his entire property by means of a will. According
to Muslim law, a Muslim can only devise 1/3 of his property to non-beneficiaries. The
administration of the property was given to the widow on the suspicion that there was
no existence of will at all. There was no dispute as to the execution of the paper
treated as a will but it was urged on the part of the widow as not being conformable to
the rules of the Mohamedan Law. The fact that it was not so conformable was
admitted.
The court held that the law of England introduced into the Straits Settlement
by the 2nd COJ in 1826 had already superseded the previous law of the country.
Therefore, any local inhabitants who wish to leave their property by will in
accordance to their personal laws must show their intention that their will is to be
constructed by those personal laws. If there is absence of such express declaration,
English law shall apply to the case. Therefore, Penang in this case was said to be a
ceded colony because the statement above states that the English Law had already the
previous law of the country.
In the case of Regina v Willans, there were two parties involved which is the
plaintiff R, the Police Magistrate and the defendant Willians. The issue was whether a
statute passed in England in 1824 is applicable to Penang by virtue of the COJ.
Refused to try a case involving one Chivatean, an agricultural labourer who has
frequently absented himself from work.
 The court held that the time where Penang became a possession of the British,
there were no inhabitants to claim the rights of being governed by any existing law
and no tribunals to enforce such laws. As such it is tough to assert that the law of
Kedah applies to the island of Penang after it was occupied by the English
administrators. The first 20 years since Penang was found by the English
administrators, there was no known body of law recognised by the law of the place.
So the 1st COJ 1807 introduced the law of England into Penang then followed by the
2nd COJ 1826 introduced the law of England as it existed on that date in Malacca,
Penang and Singapore in so far as the conditions and circumstances of the place and
persons shall admit.
Sir Benson Maxwell held that Francis Light and his marines did not come to
Penang as colonizers but as a garrison to take possession as ceded colony. Therefore,
the law of English could hardly become lex loci of Penang territory. As it could only
become the personal law of the garrison members. Therefore, the case argues that
Penang is a settled colony rather than a ceded colony because it was said that the
English law
In the case of Ong Cheng Neo v Yeap Cheah Neo & Ors, the issue of the case
was whether a devise of two plantations to be reserved as a burial place for the
deceased and his family and another devise of a house for the purposes of performing
a “sow chong” were valid gifts for charitable purposes.
The Privyl Council held that it is not important whether Penang was regarded
as a ceded or settled territory because there was no trace of any laws having been
established there before it was acquired by the East India Company. Besides, the law
of England must be taken to be the law in so far as it is applicable to the
circumstances of the place and modified in its application by these circumstances. The
application of the law of England, the said devises were void as being contrary to the
English common law against creating perpetuities. In this case, it said that Penang can
be settled or ceded colony as there are no precise statements that support whether
Penang is settled or ceded colony at that period.
In the case of Fatimah & Ors v Logan & Ors, the case was about a Muslim
who passed away in Penang leaving behind a will. Mohamed Noordin was domiciled
in Penang when he was writing his will and until his death, that his capacity to make a
will must be decided by the lex loci and not the Mohamedan law. The administrator,
which is the plaintiff, determined that Muslim Law must be applied in this context.
The main issue was what was the law that was required to apply to determine the
validity of the will.
It was held that by virtue of Charter, the law of England became the law of
the land, all who settled there become subject to that law. The propositions that
previous to the COJ 1807 Islamic law was in force in Penang and the COJ made no
alteration in the law cannot be accepted. In 1786 Penang was a desert and
uncultivated island, virtually uninhabited and with no fixed institutions. Either on the
settlement of the island, or if not then, by the COJ 1807, the law of England was
introduced into Penang and became the law of the land. Since the lex loci of Penang is
English law, then the validity of the will must be determined in accordance with
English law. Therefore, in this case, the court held that Penang was once a desert,
uncultivated land and uninhabited, so it is obvious that in this case, Penang is said to
be a settled colony.
In the case of Choa Choon Neoh v Spottiswoode, the case was mainly about a
Chinese, domiciled in Singapore, passed away leaving behind a will in which he
devised certain properties for the purpose of a religious ceremony known as “Sin
Chew”. The deceased left his sons and daughters without any heritage. The issue of
the case is whether the devise of the dead was a valid way of devising his heritage.
The court held that the law of the land in the Straits Settlement is the law of
England applied to the local conditions if it is capable to do so. That law, when
applied to the various races here needs necessary modifications to prevent it from
operating unjustly and oppressively on their cases due to the differences of customs.
Despite the acceptance of the its religious nature according to Chinese custom, for the
purpose of the law in England, which applied to Singapore, the devise did not have a
“charitable” object and therefore the devise was void. In this case, Penang in the
Straits Settlement is said to be a ceded colony because the court stated that they
accepted the religious nature to prevent unjust, which means local law was available
before the English settlers arrived on the land.
However, there was a different story told in Sejarah Melayu. It was held that:
“At the time when the British set their foot on Penang there was already a fairly large
Malay Kampong at about 18acres on south bank of Penang river and the land had
been occupied for about 19 years.” Although this story acknowledged us that one of
the land of Penang had already been occupied for many years but in fact, there was no
proper system of law established to be found. In this case, Penang is said to be a
ceded colony for sure as the locals have already occupied the land for a long time.
In a nutshell, the argument whether Penang is a ceded or settled colony can be
determined and at the same time argued from different aspects. Although until today
we are still unable to provide a clear and precise conclusion, Penang, in my opinion, is
most likely a settled colony because it already have its own laws and occupied by
their own sovereign before the English colonizers approach the shore of the island.

1.Why did the Melaka Empire can secure peace and harmony by having only
two main digests?
The two digests that are most crucial to the Melaka Empire is Hukum Kanun
Melaka and Undang-undang Laut Melaka. The people of Melaka fulfill their
responsibilities by obeying the rules and being loyal to their sultan who is said to be
the most respected man of the country. Both ‘hukum’ and ‘undang-undang’ must be
followed and obeyed in order to avoid disputes and fuss in a particular community.
The laws are said to be a system that controls the behaviour of humans and also
produce well attitudes in a community or an empire. Without the laws, the community
will definitely be frustrated with all sorts of crimes, fights and many other conflict
which will make the community unsettled or even chaos. It is undeniable that the law
is the most effective tool used by the sovereigns to govern their people and even
protect their status as the head of the nation. That is why most of the laws are made
and enacted according to the thinking and well-being of humans as their minds may
sometimes be very tough to be dominated.
Hukum Kanun Melaka in other words is also known in Undang-undang
Melaka is the traditional law in Malaysia which is unwritten. It has the mixture of
Hinduism and Malays Customary Law of Adat Temenggung. The Laws of Melaka
were codified in a comprehensive and precise manner by Seri Nara Diraja after the
Sultan ordered him to do so. It covered a wide area of Islamic Law which are qisas,
hudud, diyah, ta’zir, muamalah, family law and others. The 44 chapters enshrined in
the Hukum Kanun Melaka are mostly based on the patriarchal law of Adat
Temenggung and claimed to be followed by all large lands and by all the great rulers
and included a section with regards to the maritime law. On the other hand, 18
chapters states the penalties under Islamic Law. It also contains articles which are
stricter than Islamic Law itself based on local adapt (sula). Sultan Muzzafar Syah, the
fifth ruler of the Melaka Empire was the founder of the famous Islamic Law, Hukum
Kanun Melaka. He used the law as a tool of justice, peace and harmony which
brought a positive impact in lowering the criminal cases that occur within the empire.
The rulers at that time see the laws as an important element in regulating the society.
The contents in Hukum Kanun Melaka include the obligations of rulers and
chiefs, prohibitions among members of the community, penalties of civil and criminal
wrongs under Islamic Law and local customary law (except family law) articles
translated from Islamic Law. Trial by ordeal was an example of the influence of the
Hindu law. It is a method of determining someone’s guilt or innocence by requiring
them to pass through torturing physical tests. For instance, walking through fire,
putting hands into boiling water, lunging their hands into boiling oil or molten tin.
Besides, a person who forged the royal seal would be killed or have his tongue slit or
his head scalped. There were a few articles related to the Islamic Law regarding
criminal and civil cases. Examples of the articles and its content are, Article 7:2, the
conviction of stealing will lead to the penalty hands severe for any theft offences.
Moreover, Article 28:1, the law of divorce (talaq) tentative, (raj’i), conditions of the
waiting period before a woman being allowed to remarry after divorce or death of her
husband will take four months-(iddah period).
Hukum Kanun Melaka also plays an important role for task division among
the administrators and the structure of administration.In the laws of Hukum Kanun
Melaka, Adat Lembaga can be found which was a custom (adat) which states a
systematic administrarion system. The adat constructs the customs of the rulers
including prohibitions, obligations of Bendahara, Tememnggung, Penghulu Bendahari
and Syahbandat in assisting the Sultan. The rules and regulations enshrined was able
to smoothen the administration process, trading process that was able to increase the
productivity and quality of the empire. Therefore, Hukum Kanun Melaka is the main
law for reference in conducting and administrating a sovereign during the Sultanate of
Melaka.
Undang-undang Laut Melaka in other words is a compilation of sailing
customs, laws of the sea and sailing rules in the Melaka straits. The rules must be
followed and respected by anyone who sets their foot on the land of Melaka including
the local and foreign traders. It is the main maritime law established and written
during the reign of Sultan Mahmud from year 1488 until 1511that must be obeyed by
all the traders and locals when they are on sea. The law is related with the trading and
commercial activities on sea, protect the safety of the traders on sea from any
unwanted tragedies and also known as the customs of shipping. This law is a very
important law to Melaka empire because the port of Melaka was once the most
famous ports of South East Asia which attracted numerous traders all around the
globe to trade. Undang-undang Laut Melaka consists 25 chapters which are based on
the patriarchal system (whereby the father or man holds the power) and cover the
regulations at seas such those dealing with commercial transactions, prohibitions and
most importantly the duties of the chief and captains on the sea.
Article 1 in the law was about the obligations and responsibility of a seaman to
listen to the commands of their boatswain. The sanction that will be awarded will be
seven strokes of cane administered by the pilot of the ship if one is caught to be
disobeying the rules listed. An ordinary crew member who refused to obey commands
will also receive three strokes of cane. Syahbandars had the responsibility of
everything with regards to the sea matters. The matters include trade, regulations,
system and organizations of all kinds of shipping. Besides, there were also rigid
sanctions of death penalty for those who offended serious crimes. Passengers who
disobey the captain, plotted among themselves to betray the captain, kiwi, mate and
even the helmsmen, wearing offensive weapon, the keris at a waist and also
committed acts of nuisance, provocations and incivility that caused disturbance to
other passengers. These acts can be set to death penalty as it threatens the safety of the
other boat users on deck. There are several articles stated under Undang-undang Laut
Melaka and the main objectives of the articles were to state the duties and
responsibilities of the members of the ship, rules related to sea voyage and trade,
admiral jurisdiction and penalties of committing offenses on broad vessels. In this
law, there was merely one Islamic law found which was Article 2:1, the sanction for
committing adultery is a hundred lashes for ghayrmuhsan and also stoning to death if
caught to be a married person.
2. Discuss the reflections of the heyday of the Melaka Empire towards the
development of our nation nowadays.
The reasons of why Melaka Empire during the 15th century achieved its glory
as a worldwide trading port. It is undeniable that the rulers and people of Melaka put a
lot of effort together to help improve the empire from many aspects. Rulers
established laws, the administration system was excellent, people obeyed the rigid
laws and loyal to their rulers following by the united language spoken made Melaka a
peaceful and wealthy empire in the Malay Archipelago. As present Malaysia citizens
today, we must use the factors that assisted Melaka to be a glorious and apply it to our
current nation.
*Law as a tool for Justice, Peace and Harmony.
Melaka had its own laws and regulations and they secure the peace and
harmony of the whole community. By having Hukum Kanun Melaka and Undang-
Undang Laut, the peace and harmony of the community was well maintained because
the rulers will always uphold justice without any favour among the people. Other than
that, they had a standard procedure in the justice administration. The two digests that
are most crucial laws. wThe people of Melaka fulfill their responsibilities by obeying
the rules and being loyal to their sultan who is said to be the most respected man of
the country. Both ‘hukum’ and ‘undang-undang’ must be followed and obeyed in
order to avoid disputes and fuss in a particular community. The laws are said to be a
system that controls the behaviour of humans and also produce well attitudes in a
community or an empire. Without the laws, the community will definitely be
frustrated with all sorts of crimes, fights and many other disputes which will make the
community unsettled or even chaos. It is undeniable that the law is the most effective
tool used by the sovereigns to govern their people and even protect their status as the
head of the nation.
The nation now still upholds many rules and regulations towards the citizens.
There are many acts and laws that are commanded by the ruler of the country such as
Federal Constitution, Penal Code Act 547 and Civil Law Act 1956. These are the laws
that must be obeyed by all the residents of Malaysia to enhance the harmony and
peace of our nation. The Federal Constitution is the supreme law of the federation and
if any other law is in contrast with it shall be void. The Federal Constitution in the
nation nowadays enshrines the fundamental right of citizens, obligations of the Yang
Di-Pertuan Agong and also the obligations of the Parliament. Besides, the other Act
that has the power to control all criminal proceedings is the Penal Code Act 574
which is slightly similar with Hukum Kanun Melaka as it lists down the punishments
and sanctions that will be prosecuted to the individuals who disobey any criminal law.
Punishments such as death penalty and whipping are likely similar to the rules that are
codified in the laws used in Melaka during the ancient years, but now it prohibits
cruelty to an individual so sanctions with cruel procedures are vanished from the laws.
On the other hand, Admiralty Courts User Guide that we have now is likely similar
with Undang-undang Laut Melaka as it lists out the obligations of the sea users and
even sea matters. Admiralty courts that we have now in Malaysia hold the jurisdiction
with regards to the maritime law. Cases including shipping, ocean, and sea laws are
governed under the admiralty courts. Besides, the Admiralty Courts have a special
jurisdiction to carry out In Rem jurisdiction, which is also known as ship arrest. In
the Admiralty Court Users Guide, it states that after an action of ship arrest
immediately commence, an affidavit that is supportive may be an arrest warrant in
respect of the ship or other maritime properties. The request is filed together with an
agreement to the court to pay and expenses incurred by the Admiralty Sheriff that
relates with the arrest.

*Bahasa Melayu as “Lingua-Franca”.

84 languages were spoken by the inhabitants. Malay language became the
lingua-franca. Malay language, the language of culture and literature, it was used in
and outside of the palace. It made transactions easier than before. The Malay language
was said to be an easy language to learn and speak, so the traders were willing to learn
the language in order to communicate with the local people or other traders of foreign
countries as the language is able to break the language barrier. The Malay language
was used by the sovereign to write letters to write approval letters for the foreigners
who applied to trade in Melaka. It was undeniable that Malay language became the
trading language because it smoothens the trading process as the language can be
understood by the people. In the 16th century, the Malay language was said to be
highly respected by the Eastern Countries as it was a useful language for foreigners.
In Malaysia, the language is known as Bahasa Melayu or Bahasa Malaysia.
Since 1968, Standard Malay is the official language of Malaysia as stated in. Article
152 (1) of the Federal Constitution states that the national language shall be the Malay
language and shall be in such script as Parliament may by law provided that no person
shall be prohibited or prevented from using (otherwise than for official purposes), or
from teaching or learning, any other language and nothing in this Clause shall
prejudice the right of the Federal Government or of any State Government to preserve
and sustain the use and study of the language of any other community in the
Federation. However, the language of wider communication is colloquial Malay
(Ethnologue). As a vestige of colonization, English is still considered a prestige
language among the educated classes and it continues to be used in the majority of
institutions of higher education. However, Malay is officially the medium of
scientific, administrative, legal and other official matters. Malaysia is a country built
up with different races, customs and traditions. Until today, every resident of our
country have to learn this language not only to get an A in their results but also to
communicate with other races to break the language barriers between us. Some people
say that we can always use English to communicate as everyone uses English
internationally and somehow refuse to learn Bahasa Melayu. Despite English is a
language recognized globally as the international language, we still have to learn
Bahasa Melayu because it symbolizes each and every one of us as a Malaysian
citizen. No matter what skin colour we have, as long we speak with friends of
different races, we should prioritize BM as the communicating language because it
breaks the language barrier which makes us more united.
*Diplomatic relationship
Melaka recognized its relative military weakness in the region and chose to
placate rather than offend its more powerful neighbors. Alliance were forged through
marriages, submitted themselves to the Ming Court to ensure Melaka continued to
enjoy political patronage from China. Apart from that, Parameswara Iskandar Syah
also contributed a lot in maintaining diplomatic relationships with the other empires.
During his reign, Melaka was a famous entreport trading centre visited by traders and
merchants, representing different civilizations and many foreigners such as the
Javanese, Chinese, Burmese and others settled in Melaka for various trading
activities. Melaka’s fame as a famous trade centre at that time led to a close
diplomatic relationship between Melaka with other countries, including China. China
at that time was wealthy and strong ruled by Emperor Yung-Lo, the 3rd Emperor of
the Ming Dynasty. In the beginning, the Melaka rulers were just seeking for
protection from this dynasty as Melaka was still a small empire and it is necessary to
build up diplomatic relationships with other countries for many other reasons. Two
years later after he converted into a Muslim, in 1411, Parameswara with his family
with a royal party left for China with Admiral Cheng Ho to pay homage to Emperor
Yung-Lo. The Emperor then praised Parameswara and acknowledged him as a
rightful ruler of Melaka awarding him with silk, seal and a yellow umbrella as a
symbol of royalty including a letter appointing Parameswara as the ruler of Melaka.
After that, Melaka was recognized as a kingdom by the Emperor of China. The envoy
returned to Melaka together with a fleed led by the first Chinese man who sailed and
explored the southern region, Admiral Cheng Ho. This made more Chinese traders
settled down at Melaka to proceed with trading activities generating the empire’s
economy and even marry the local women in Melaka which led to the commencement
of Peranakan Chinese, the community which still exists in Melaka today.
Malaysia stills have diplomatic relationship with many countries around the
globe. Malaysia is one of the countries which participated in Association of South
East Asian Nations (ASEAN), Organisation of Islamic Cooperation (OIC),
Commonwealth and even (World Health Organization) WHO to maintain the
relationship between each and every nation. Malaysia still maintains a great
relationship with most of the countries around us. We still have diplomatic
relationship with China, Thailand, Singapore and many more other countries to
enhance foreign relationships which. According to TheStar, on 31 January 2020, as
Malaysia is the world’s largest producer of medical gloves, exporting approximately
180 billion pieces worldwide, we were ready to donate 18 million surgical gloves to
assist China when Covid-19 strikes China. Two companies, Top Glove and
Supermax, donated 2.3 million pieces of gloves through their local offices and
distributors to Wuhan, China. While Malaysians are concerned about the spread of the
virus to our lands, Malaysia was still ready to lend a hand especially given that the
two countries share deep cultural and business ties which have been built over
decades ever since the Melaka empire. Besides, in 2014, Malaysia sent more than 20
million medical rubber gloves to Liberia, Sierra Leone, Guinea, Nigeria and Congo
during the Ebola virus crisis to assist the poorer countries that needed help in fighting
the disease.
*Efficient Administration System
The Melaka Empire reached its heyday when Parameswara started his
sovereign with establishing an efficient administrative system. Parameswara
possessed the Islam religion after he married a Muslim princess from Majapahit, and
then adopted the name of Sultan Iskandar Syah . After he became a Muslim, the chart
of the administration of Melaka Empire had some slight changes, additional and
amendment for each portfolio. Titles of the courtiers were changed, but the
obligations were still similar to the previous administrative system. It is undeniable
that Sultan Iskandar Syah built up a very systematic system of administration called
the Fourfold Dignitary System (Sistem Empat Lipatan ). The Sultan was likened as
the centre of all secular power in the administration system as he possessed the main
sovereign power of the empire.
Despite the Sultan holds the main power to govern the nation, he appoints
several ministers to assist him with different ranks of the administrative system. The
four main officials are the Bendahara, Temenggung, Laksamana and Penghulu
Bendahari which provide assistance to the Sultan in different aspects. The Bendahara
has the similar role as the Prime Minister in the modern days. He is the second most
important post of the administration system of the Melaka Empire because he is the
main advisor of the Sultan and can represent the Sultan when his Majesty is absent.
Besides, the Temenggung was in charge of internal peace and the security of the state,
criminal arrests, building and maintaining prisoners. The Laksamana had the duty to
ensure security too, but merely the security of ships on the sea and he used to execute
the sentence passed by the Sultan or Bendahara. Lastly, the Penguhulu Bendahari was
responisible for all financial matters and he works just like the treasurer of the Melaka
Empire. The officials of various ranks gave support to their sovereign as the
obligations were distributed orderly. As a result, the mutual support given by the
officials allowed the kingdom of Melaka to expand from a city itself to a well-known
empire with strong imperial power.
Nowadays in Malaysia, the administrative system is still systematic as
established during the Melaka Empire. The Malaysia legal system today is made
according to English legal systems but is slightly different from the traditional English
legal system. The administration of Malaysia is divided into three sections which are
executive, legislative and judiciary. Executive is the people who executes the law
such as the police, army and the cabinet. While the Monarch remains the Head of
State real executive power is given to the cabinet led by the Prime Minister as Head of
Government. The Malaysian constitution states that the Prime Minister must be a
member of the Lower House of parliament. The cabinet is chosen from among
members of both houses in Parliament and will be responsible to that body. The
Executive branch of the government consists of the Prime Minister as the head of the
government, followed by ministers of the Cabinet. The next section is Judiciary,
which are the courts in the legal system. The highest court in the judicial system is the
Federal Court, followed by the Court of Appeal, and two High Courts, one for
Peninsular Malaysia, and one for East Malaysia. The subordinate courts in each of
include Sessions Courts, Magistrates' Courts, and Courts for Children. Malaysia also
has a Special Court to hear cases brought by or against all Royalty. Lastly we have
Legislative which is the people who enact and debates about the laws that can be
applied in the nation. Parliament is the highest legislative body in Malaysia. It
consists of His Majesty the Sultan or Yang Di-Pertua as the Head of State, the Senate
and the House of Representatives.
According to the Federal Constitution, Articele 32 (1) states that there shall be
a Supreme Head of the Federation, to be called the Yang di-Pertuan Agong, who shall
take precedence over all persons in the Federation and shall not be liable to any
proceedings whatsoever in any court except in the Special Court established. Which
means that the Yang Di-Pertuan Agong is still considered the powerful ruler of the
sovereign in Malaysia. However, in Article 35 (1) of the Federal Constitution states
that the Yang di-Pertuan Agong shall not exercise his functions as Ruler of his State
except those of Head of the religion of Islam and Article 40 (1) in the exercise of his
functions under this Constitution federal law the Yang di-Pertuan Agong shall act in
accordance with the advice of the Cabinet or of a Minister acting under the general
authority of the Cabinet, except as otherwise provided by this Constitution; but shall
be entitled, at his request, to any information concerning the government of the
Federation which is available to the Cabinet. Therefore, the Yang Di-Pertuan Agong
still needs to seek advice from the Prime Minister before acting upon anything as he
does not hold the supreme power of the federation. Under the Yang Di-Pertuan
Agong, there are several ministers which will be executing their obligations in the
cabinet and the Parliament. We now have the Prime Minister, Deputy Prime Minister,
Attorney General, Minister of Finance, Head of Navy, Head of Police and many
more.

*Excellent rulers
In the ancient times, being the ruler of the country is a sacred and heavy
obligation as he holds the supreme power to govern the particular country that is
under his sovereign. Before Parameswara possessed the Islam religion, he was a
Hindu Buddhist. During the Hindu- Buddhist era, the ruler is defined as the god-king
as the people believed that the king and his family has the lineage of god. The
coming of Islam changed the mind-set of the people, but the political concept of god-
king was still strongly equipped in the social beliefs and traditional beliefs. In
addition, the traditional spiritual links of Muslim ruler with gods did subside but fresh
links were made with Allah (SWT) and the Prophet (PBUH) and other spiritual
leaders.
The ancient Malay Sultanate of Melaka was a sultanate who reigned the
famous Melaka empire. The Malay century lasted for more than a century from
year1394 until 1511. Under the reign of the Malay rulers, Melaka was not merely a
popular trading town, it was also the centre of the spread of Islam religion. The
efficiency of the administration system and laws set up by the expedient rulers of the
Melaka empire had even attracted more traders from all over the world. Sultans
during the Melaka empire allows citizens to speak out their perspectives and own
problem to them in the Palace. Citizens are allowed to tell their disatisfactions to the
Sultan regarding the administration of justice. Sultan Alaudin Riayat Syah dressed as
a normal citizen and went into the neighborhood to learn more about his citizens’ life
conditions. Besides, Sultan Muzzafar Syah was the founder of Hukum Kanun Melaka
and even ordered his men to codify it in a comprehensive way which made the empire
of Melaka peaceful by using the laws as a tool to enhance the peace of the
community. Moreover, Sultan Muzzafar Syah together with Tun Perak even arranged
a mind blowing strategy during a battle with the Siamese armies that was on the way
to attack Melaka. Sultan Muzzafar took Bendahara Tun Perak’s advice to allow the
men to bring their family along during the battle. This strategy gives the men to
motivation to fight for their best to win in order to protect their family as they are
given moral support from their wives and children. This clearly shows that the
intelligence and wise thinking of the rulers are a great success towards Melaka’s
glory.
In Malaysia now, our country is ruled in a democratic form which allows the
citizens to express their own opinions to the government. Although nowadays we do
not need to see the Yang Di-Pertuan Agong or Prime Minister in person, we still can
vote for our representatives in the House of Representatives (Dewan Rakyat) to voice
up for our rights. Besides that, there is in the Federal Constitution that states the
citizens of Malaysia can voice up and have the freedom to speak except for sensitive
issues which is enshrined in Article 10 (1) in order to give some advices for the sake
of the nation. In addition, our rulers of the country now still work hard in the
development of our country and even keeping our citizens safe from any harm. On
16th March 2020, Prime Minister of Malaysia Muhyiddin Yassin officially made a
decision together with his ministers announced the commencement of the Movement
Control Order (MCO) to lockdown the whole country and restrict any unnecessary
movement of the citizens of Malaysia. This order was to ensure that the Covid-19
pandemic can be controlled by immediate action to reduce the number of spread of
the deadly disease among the citizens. Citizens were restricted to get out from their
houses and only certain premises are allowed to open which are supermarkets. From
this case, we can see that the order given out by the rulers are actually wise as they
have succeeded to lower the number of infected and also lower the burden of the front
liners especially the medical unit.

3. Discuss the reflections of the downfall of the Melaka Empire towards the
development of our nation nowadays.
On the year of 1511, the capture of Melaka occurred when the Portuguese
governor, Alfonso de Albuquerque conquered the port and city of Melaka. Foreign
laws were applied to the land, the sultanate of Melaka was interfered, the rulers lost
their powers to rule their nation and the administration was totally superseded by
foreign styles of administration. There were several factors that led to the downfall of
Melaka, and the citizens of Malaysia in the present days should learn the lesson from
this sad issue to protect our own country from external damages.
*Corruption
The official of the ports started to impose high taxes and they also accepted
bribes from the traders. Taxes were collected for their own sake and it led to lack of
funds for the Empire’s treasury. As a result, the merchants have to stop trading
activities in Melaka as the cost had exceeded their budgets and lowered their profits.
Corruption is still found in the modern world. It is usually done by people who
want to bug out from trouble. So, Malaysia in now established an institution called the
Malaysia Anti-Corruption Commission to lower the cases of corruption in the nation.
The prevention division functions to cultivate and instil integrity within the public and
private sectors in order to shut down any opportunity for corruption offence or ethics
violation in developing good governance. Besides, Malaysia also enacted an Act
called the Anti-Corruption Commission Act 2019 to reduce the corruption cases that
occur within the nation. Section 165 of the Penal Code Act 574 also states that
whoever, being a public servant, accepts or obtains, or agrees to accept or attempts to
obtain, for himself or for any other person, any valuable thing, without consideration,
or for a consideration which he knows to be inadequate, from any person whom he
knows to have been, or to be, or to be likely to be concerned in any proceeding or
business transacted, or about to be transacted, by such public servant, or having any
connection with the official functions of himself or of any public servant to whom he
is subordinate, or from any person whom he knows to be interested in or related to the
person so concerned, shall be punished with imprisonment for a term which may
extend to two years or with fine or with both which is able to lower bribery cases and
corruption cases in the nation.
*Ineffiecient Bendahara
After the death of Bendahara Tun Perak, no capable Bendahara ruled Melaka
Tun Puteh was very old and not suitable for the post. Tun Mutahir failed to develop
and govern Melaka efficiently. Bendahara Tun mutahir was very arrogant, cronysime
and had argument with the Malays and he was also very keen on giving favour
towards the Indians which made the citizens of Melaka unsatisfied with his actions.
Malaysia is a democratic country which the ruler or Prime Minister is voted by
the residents who are above 18 years of age according to the Federal Constitution
Article 119 (1) (a) that every citizen who as attained the age of eighteen years on the
qualifying date is qualified to be an elector. From the statement above, it is crucial for
the residents to choose their ruler rationally as it will affect the future of our nation.
For example, Tunku Abdul Rahman was our first Prime Minister elected by the
people to obtain independence from the British colonizers. He was said to be the well-
known father of independence of Malaya and also the president of UMNO,
spearheaded the alliance between the UMNO and the Malayan Chinese Association
(1951) and that of the UMNO and the Malayan Indian Congress (1955). In January
1956, Abdul Rahman led a mission to London to negotiate for Malayan independence,
in the end securing immediate self-government for Malaya and the promise of
independence by August 1957. Besides, Tun Dr. Mahathir Mohamad, our former
prime minister has become prime minister for two times in the nation. He has become
a historical character as he is oldest elected Prime Minister in the world at age 92 and
also the only minister in Malaysia to hold the position twice. Tun Dr. Mahathir
Mohamad was a doctor before becoming a politician with the UMNO party and
ascended quickly from member of parliament to Prime Minister. During his 22 years
in office, he grew the economy and was an activist for developing nations, but also
imposed harsh restrictions on civil liberties. It is obvious that he won the trust of the
people of Malaysia. It is obvious that the Prime Ministers of Malaysia elected by the
residents of Malaysia are more efficient and are able to contribute to the development
of the nation from many ascpects.
*Disunity
One of the main factors which led the downfall Melaka Empire is disunity of
the a new Bendahara and the people especially between the Malays and the Tamil-
Muslims. The appointment of Tun Mutahir as the Bendahara after the death of Tun
Puteh. He practiced favouritism, cronisme and not doing his job well. Another factor
was of Mani Purindam which led to dissatisfaction among the Malay nobility.
 Malaysia today is country built up by multiple races. It is very important that
the rulers treat every race with equity and respect to avoid any misunderstandings and
conflicts among the residents as it will affect the harmony of the nation. As stated in
Article 8(3) of the FC, there shall be no discrimination in favour of any person on the
ground that he is a subject of the Ruler of any State and (4) no public authority shall
discriminate against any person on the ground that he is resident or carrying on
business in any part of the Federation outside the jurisdiction of the authority. So, it is
essential to maintain the harmony and peace of the nation by keeping the residents
united as it is the gests to protect the country from any harm. The 13 May 1969
incident was the Sino-Malay sectarian violence that took place in Kuala Lumpur (then
part of the state of Selangor), Malaysia on that date in 1969. The riot occurred in the
aftermath of the 1969 Malaysian general election when opposition parties made gains
at the expense of the ruling coalition, the Alliance Party. The racial riots led to a
declaration of a state of national emergency or Darurat by the Yang di-Pertuan Agong
resulting in the suspension of the Parliament by the Malaysian government.
*Help from Nina Chatu
Nina Chatu was a wealthy Indian merchant who lived in Melaka during the
th
16 century, and that was when the Portuguese trade expedition arrived in 1509. Nina
Chatu was said to be a Hindoo, Governor of Quelins (chelings) and chetins (chetty)
recorded in Alfonso de Albuquerque’s Commentaries. From the records of the
Portuguese it is clear that Nina Chatu was a native of Kalinga and a descendant from
Coromandel coast. Nina Chatu was a rich man, but he was greedy minded and wanted
to have power in Melaka empire. When he knew the Portuguese were coming to the
empire, he then gave all the crucial information about the strength of the Melaka
Empire to assist the Portuguese army, and this made the army to easily conquer
Melaka, and later, he was appointed as the Prime Minister of Melaka by the
Portuguese. However, after holding the title as the Prime Minister, the Portuguese
colonizers held more power to control him rather than he being the greatest of all in
the empire. Nina Chatu has betrayed the Melaka empire which led to the tragedy of
the demise of Melaka,
It is important for the people to always be loyal to the nation as loyalty is the
best policy. According to Section 121 (a) (b) of the Penal Code act, betraying the
nation can be put into death sentence. The people must be loyal to their own country
to protect it from external harm. Other than that, in order to ensure the important data
and information of the nation to be kept confidential, the Official Secrets Act was
enacted and established in the year of 1972. From previous incidents of the past, it
clearly states how bad a nation can be when people betray it. In Section 18 (2) of the
Official Secrets Act 1972, without limiting the generality of committing an offence
under this Act or is reasonably suspected of having committed, or has attempted to
commit, or is about to commit, such an offence, he may be arrested without a warrant,
if any person in a prohibited place is found offending or suspected of offending
against this Act he may be arrested with or without a warrant, by a police officer or
any member of the armed forces and shall be brought forthwith before a Magistrate to
be dealt with according to law. Therefore, anyone who tries to steal or record any
confidential proceedings, he may be convicted and be arrested by the police. That is
why as a citizen of Malaysia, we should always be a loyal citizen as stated in the third
National Principle of Malaysia to always be loyal to our King and Country to avoid
any tragedies to occur in our nation.
*Limited weapon and support
The foreign documents on Melaka from the year 1505 until 1506 stated clear
information that the Sultanate of Melaka was approaching its final five years of glory
before officially defeated and colonized by the Portuguese. Misunderstandings and
disputes continued that led to segregation and disunity among the people. The
situation became worse and critical when the Portuguese, led by Alfonso de
Albuquerque attacked Malacca. For Malacca soldiers, they lost the skills of battling
because they did not involve in war for a long period. They had been using traditional
weapons such as creese, arrow and spears during the war with Portuguese. Whereas,
Portuguese used modern weapons such as cannon that was clearly different and more
advanced than Melaka in term of range and mobility. Portuguese armed forces have
well-equipped weapons and good strategic planning with the guidance of Alfonso de
Albuquerque. Before Portuguese attack Melaka, they had conquered Goa India so
they have support of army from Goa India. Sadly, the soldiers of Jawa abandoned the
state and did not assist the people of Melaka to fight against the colonizers of
Portuguese, and with that, the Sultanate of the Melaka Empire officially came to the
end.
Luckily, Malaysia today has a big army of soldiers and police forces to protect
the country if any war happens in the nation. In Malaysia, we have The Malaysia
Armed Forces, Royal Malaysia Air Force, Rejimen Semboyan Negara, Royal
Malaysias Navy and even the Royal Malaysia Police (PDRM). The armies of the
forces are fully trained such as jungle survival skills, weapon skills and have great
discipline among them. Besides trainings, the weapons used by the military forces in
Malaysia have developed and is now quite modern. Examples of weapons used in
Malaysia Special Forces are Accuracy International AW50, a sniper riffle, and
Fabrique Nationale FN MAG, a machine gun. Until today, according to the annual
Global Fire Power GFP review, Malaysia is in the rank of 44 of 138 out of the
countries considered. In other facts, Malaysia is also a nation with a complete Act that
governs the military forces which is the Armed Forces Act 1972 and also the Military
courts. The court holds its power to govern the Offences in Respect of Military
Service. These offences are punishable by the court, and it has the jurisdiction to
sentence a person of the military member to death penalty. The examples of offences
are aiding the enemy, misconduct of the commander and communication with the
enemy. According to Section 28 of the Armed Forces Act 1972, if a member of the
military force aids his enemy and caused the capture or destruction by the enemy of
any of His Majesty’s ships or aircraft or the ships or aircraft of any force co-operating
with His Majesty’s armed forces, he shall be liable to suffer death penalty under the
jurisdiction of the Martial Courts.
4.Discuss the impacts on the colonization of the Melaka Empire by the Portuguese
and the Dutch during 15th to 17th century towards Malaysian legal system.
In 1511, Malacca was officially colonized by the Portuguese colonizers
followed by the Dutch in 1641. There was several information with regards to the
system of administration of both the Portuguese and the Dutch, but not much was
found in the laws which were applied to the local inhabitants of Melaka. The Dutch
East India Company, as recorded, had made a decision to set up standard regulations
which would apply in all colonized territories of the Indian Archipelago.
Consequently, some law books containing a collection of the most-used regulations
when Javanese people set sailed to Melaka bringing these books which were supposed
to have guided the Courts of Justice in the Melaka Empire. In the case of the
Portuguese colonizers, the question is still remained whether the regulations recorded
in these books were actually applied to all inhabitants of Melaka, locals as well as
foreigners? It was not really recorded clearly whether the Dutch treated the issue of
personal laws should these come into conflict with the laws contained in the books.
The main objectives of the colonization made by both European countries were not to
amend the law, but they were forced to in order to achieve their own goals by
showing their power as they were competing with the other European countries.
The Portuguese colonization started on the 15th century to expand their power
throughout the globe. The sail of Alfonso de Albuquerque marked the commencement
of the Portuguese colonization on the land of Melaka and the end of Melaka’s golden
age. The Portuguese administration had replaced the traditional administration of the
Melaka Empire. There were a few new rules adapted into the land that superseded the
original administrative system. Firstly, the Governor was appointed to govern Melaka
would serve for only 3 to 4 years to prevent corruption issues in the administration.
The new laws and administration system limited powers of sultan and all his
followers were seized by the Portuguese colonizers and only given the power to deal
with Islamic religion issues and this changed the administration of Melaka deeply as
the Sultan had lost his supreme power to rule the empire by his own.
The Yang Di-Pertuan Agong that we have today is still the supreme head of
the Federation, however, after the colonization of Portuguese and Dutch, he had lost
his supreme power to govern a nation permanently until the present days. As stated in
Article 35 (1) of the Federal Constitution, the Yang di-Pertuan Agong shall not
exercise his functions as Ruler of his State except those of Head of the religion of
Islam and Article 40 (1) in the exercise of his functions under this Constitution
federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the
Cabinet or of a Minister acting under the general authority of the Cabinet, except as
otherwise provided by this Constitution; but shall be entitled, at his request, to any
information concerning the government of the Federation which is available to the
Cabinet. Therefore, the Yang Di-Pertuan Agong still needs to seek advice from the
Prime Minister before acting upon anything as he does not hold the supreme power of
the federation. Under the Yang Di-Pertuan Agong, there are several ministers which
will be executing their obligations in the cabinet and the Parliament.
The Melaka Sultanate came to an end after the Portuguese sail led by Alfonso
de Albuquerque in the year 1511conquered Melaka for the next century from 1511
until 1641. A military and civil administration was established in this period of time
according to the Portuguese laws and rules. In the civil and criminal matters, there
was Corpus de Cidade which used civil and criminal jurisdiction over all Portuguese
settlers in order to minimize disputes among themselves. In the military matters, the
governor had to seek the advice of the captain-general of war or the commander-in-
chief. Meantime, the colonizers applied their hometown laws on the locals. It was
obvious that the customs of Western countries and Eastern countries have a huge
difference, so, many disputes and chaos happened time to time because the law
exercised was not in line with the customs and traditions of the local inhabitants.
Despite Portuguese laws were applied generally, a local native Bendahara was
appointed to administer native Muslims and other foreigners under the Portuguese
jurisdiction. To avoid any chaos, cases involving local people, Muslim law and
customs were to be applied. A headman or kapitan for each community were
appointed to maintain peace and order and the Portuguese did not exert disturbance
over the locals living outside the city walls. The Portuguese law has definitely became
the main law of the land, and Islamic law became a minor law.
Malaysia now still exercises different laws on people with different religion,
customs and races. After the colonization of the European countries, Islamic law was
still considered as the religion of the federation as enshrined in Article 3 of the
Federal Constitution. The nation established courts with special jurisdiction which is
the Syariah Court that holds the jurisdiction to govern Muslims of Malaysia.
According to the Article 121(1A) of the Federal Constitution, the courts referred to in
clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of
the Syariah Court. In other words, the Article 121(1A) is a provision to avoid any
unnecessary disputes with regards to jurisdiction between the Civil courts and the
Syariah Courts. Article121 (1A) of the Federal Constitution also states that is
jurisdiction of the high court has no power to govern in respect of any matter within
the jurisdiction of the Syariah courts and the reason of this provision is to avoid any
contradictions among the two courts. The conflict happens when Civil court intefere
the jurisdiction of Syariah Court and it also happens when Civil court over ruled the
decision of Syariah Court. Besides courts, two provisions where established in order
to avoid any circumstances we learnt from the past. Muslims are governed under the
Syariah Laws, Non-Muslims are governed under the Civil Law Act 1956. After the
laws were amended, disputes and arguments were finally settled.
In the year 1641, an alliance between the Dutch and Johore managed to force
the Portuguese to surrender the rule of Melaka to the Dutch. Under the Dutch, Melaka
was once again controlled as a colony of the Dutch East India Company also known
as VOC and was headed by a governor. The governor was assisted by the council
comprising the tax collector, the fiscal, the mayor, the mayor, the upper merchant, and
a secretary. The laws and regulations were issued by the government in Holland.
During the Dutch rule, magistrates were appointed to try criminal cases and settle
judicial disputes, while Europeans were governed by the Dutch laws, the locals were
leave to their own laws, unless these clashed with the generally accepted principles of
justice.
During the Dutch colonization in Melaka the administration system of our
three main components which are the Council, Council of Justice and Special
Council. These three components work under the governor who holds the supreme
power to govern their colonized territory but they work separately by their own.
Despite jobs where separated, it was still hard to differentiate between judiciary and
executive powers of the administration because the main power was still controlled by
the governor. This had led to dissatisfaction among the locals with the held of courts
and numerous conflict arose due to the difference of laws and administration.
In Malaysia today, our administration system consists of three components
just like the Dutch administration in Melaka which are judiciary, legislature and
executive. Now, these three bodies are held by law to separate parties to prevent
power grabbing. As a country with parliamentary democracy that adopts the concept
of separation of powers, the power of government is divided into three branches. In
order to protect the judiciary board from any interference and control of the executive
and legislature in Malaysia, the Federal Constitution under Part IX (Art.121-131A)
provides specific provisions to secure judicial independence. Federation is provided
under Article 121(1) that there shall be two high courts of co-ordinate jurisdiction and
status and they shall have jurisdiction and powers as may be conferred by or under
federal law. Article 127 of the Federal Constitution of Malaysia stipulates that the
conduct of a judge of the Federal Court, the Court of Appeal or a High Court shall not
be discussed in either House of Parliament except on a substantive motion of which
notice has been given by not less than one quarter of the total number of members of
that House, and shall not be discussed in the Legislative Assembly of any State.
Therefore, any issues regarded with the powers of the legislature are fully protected
by the law as discussions cannot be made by the executive and legislative unless more
than a quarter of the members of that House submitted an approval and drafted in
such way to have the consent in order to express a decision of the House.
There was one case that was related to the subject matter which was the case
of Aiman Bin Mahmud v Syed Abu Bakar bin Habib Yusoff & Ors [1939] MLJ 209.
The case was about an issue where the Evidence Act established by the English law
override Islamic Law. The court held that the evidence enactment is a statute of the
general applications and all the inhabitants of the federated Malay states are subject to
the provisions no matter what race and religion they adopt. According to Section 112
Evidence Enactment, it enshrines that the birth of a child during a valid marriage or
within 280 days after its dissipation, it conclusive proof of legitimacy, unless it can be
shown that the parties to the marriage had no access to each other at any time when
the child could have been begotten. Whereas for Islamic law, the shortest period of
pregnancy for humans can be the minimum of 6 months. A child who is born before 6
months is considered illegitimate. In this case, the child was born 3 months after the
marriage. Hence, the court applied the evidence enactment and declared that the child
is a legitimate child.
 As a conclusion, the Portuguese and Dutch colonization has made a huge
difference in the Malaysia Legal System today. The colonizers did not just colonized
the land of Melaka but even changed the whole administration system into their
administration system. The colonizers ignored the local inhabitants’ laws especially
the Islamic laws. The Portuguese at that time travelled around the world to spread the
catholic religion, once they came to Melaka, an Islamic Empire, they changed the
rules to their rules. This has left a huge impact as the Islamic law is no longer the
main law used to govern the empire, but the western laws were implied into the locals
that time

5. Discuss the ways on how to protect and enhance the rights of aborigines and
natives in Malaysia. You should discuss these issues and support your contentions
with relevant authorities, i.e., incidents, cases, relevant laws and others.
According to Oxford Learner’s Dictionary, indigenous people are defined as
people belonging to a particular place rather than coming to it from somewhere else.
Under indigenous people, there are two categories which are the aborigines who live
in Peninsular Malaysia and Natives who live in East Malaysia. Aborigine means the
original or first peoples of Peninsular Malaysia. In Aboriginal Peoples Act
1954, it states that aborigine is any person whose male parent is or was, a member of
an aboriginal ethnic group. Natives mean the heterogeneous Indigenous people
of the states of Sarawak and Sabah. In Interpretation (Definition of Native)
Ordinance, it states that native means any person that both his or her parents are or
were members of a people indigenous to Sabah.
Indigenous people over years have been omitted by the government to protect
their native customary rights that they actually possess. Throughout the years, there
have been several cases and disputes brought to the court with regards to the
recognition of ancestral and traditional lands and territories of the indigenous people.
The ancestral and traditional lands and territories are not marked as protected lands
that belonged to the indigenous peoples. These lands have been subject to land
invasion or trespass by the government and corporations without the consent tribunal
leaders and even caused damages to their land for further development. Their lands
are taken as granted by the government without making any notices to them. Besides,
indigenous people of Malaysia even lost their homes and are forced to live the way of
life that they are not used to do. Throughout the years, numerous developments and
plantations have been made in forest, excessive logging activities were carried out and
this threatened the lives of the indigenous people. Issues on health and
Firstly, the government should recognize the Indigenous people traditional
land and give a permanent title to them. The authorities will be required to treat the
indigenous people as legalizing landowners and deal with them according to the rules
and regulations that must be followed in order to protect their land rights. The lands of
indigenous people have been threatened and taken away by other sectors who have
the cruelty to take advantage of the indigenous people who have not much knowledge
in laws and their rights. In Malaysia, indigenous people are only considered as tenants
or minorities of the land inherited and they were not given any title by the Aboriginal
People Act 1954. Due to the lack of experience of the Malaysia administration, the
land tenure has effected the indigenous communities land and resources. Oil palm
plantations and dams were developed on their lands without their consent that caused
them to lose their homes and traditional lands.
The right of indigenous peoples to redress in respect of their lands, territories
and resources has been enshrined in international law. Article 28 of the 2007 United
Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) stated that
suggestions and ‘solutions’ such as these are only realisable if certain fundamental
changes are first conceptualized, executed and realized. So, in order to actually
protect the indigenous people’s rights, the government and also private associations
must work together to resolve this problem as soon as possible. The examples of
associations are Jabatan Kemajuan Orang Asli (JAKOA), IDEAL, Indigenous People
Development Centre and also Indigenous Peoples' Network, Malaysia (JOAS).
Besides that, in Peninsular Malaysia, there is a clear lack of reference to indigenous
people customary land rights in the National Land Code, their common law has
recognized their customary tenancy. The primary Act that governs indigenous people
administration, including land occupation, is the Aboriginal Peoples Act 1954.
Therefore, the government should always refer to the Act and develop the Act in
order to serve justice to the indigenous people.
In the case of Sagong Tasi v Kerajaan Negeri Selangor & Ors, a large tract of
Temuan inhabited land was used for the construction of a highway leading to Kuala
Lumpur International Airport. The Temuans requested for compensation under the
Land Acquisition Act 1960. A challenge was made against the members of the
Temuan tribe as to their status as Orang Asli. The Defendants which is the State
Government of Selangor argued that the Temuan people are no longer indigenous
people because they did not continue to practising Temuan culture and traditions. The
High Court held that the Temuan people met the definition of “Orang Asli” because
the community was still governed by Lembag Adat a traditional council. It still
governs their marriage, communal activities, social conduct and resolutions on
disputes among the tribe and therefore, the Temuans are still ruled by their own laws
and customs. The High Court held that they do not lose their status as indigenous
people merely because they speak other languages rather than the Temuan language,
or because they cultivate cash crops and not traditional crops. The Court did not take
such a simplistic view, and in my humble belief, the Court had made a wise decision
to protect the rights of indigenous people.
Besides, the government should hold the obligation to inform the participation
of all projects that will involve that particular tribe in the communities before the
project is implemented on their lands. The government should bare in mind that the
indigenous people has the right to use forest where they reside and carry out their
cultural activities in the forest. These years, logging activities has threatened the
lifestyle of indigenous people as their habitats are damaged and they have nowhere to
continue their living. The projects that involve heavy logging activities and destroying
natural habitats are dam building and also oil palm plantations.
 Rather it should take as its cue the mandate expected of it in the preamble of
the Aboriginal Peoples Act wherein it is clearly stated that it is to provide for the
protection, well-being and advancement of the indigenous people. For example, as
such Jabatan Kemajuan Orang Asli (JAKOA) should deal with other government
bodies and states, not as a collaborator but as an advocate for the indigenous people in
order to protect their rights of freedom to use their own lands. In this regard, it should
work actively to secure Orang Asli lands, and not hide behind the statement of ‘land is
a state matter’. In other words, the Federal Land Development Authority (FELDA), a
federal agency like the JAKOA did success in getting states to set aside land for its
programmes, surely the JAKOA can definitely do better than FELDA as the claim of
the indigenous people to the traditional lands is stronger.
The case of Director-General of Environment Quality v Kajing Tubek 17
[1997] 3 MLJ 23, also known as the “Bakun Dam Case” decided in 1997 was a case
worth discussing. In this case, some 10,000 natives of Sarawak were not given a
chance to be heard before the Environmental Impact Assessment Report (EIA) was
approved. The High Court held, firstly, that the natives had locus standi to bring the
action against the Director-General of Environment; and, secondly, that the
Environmental Quality Order 1995 was invalid as the natives were denied of the
opportunity of being heard before the EIA Report was approved. The Court of
Appeal, however, in reversing the decision of the High Court, effectively held that the
10,000 natives of Sarawak had no substantive locus standi to challenge the
environmental impact assessment (EIA) for a dam that would flood their traditional
land and deprive them of livelihood. On the question of locus standi, the Court
acknowledged the natives’ right to livelihood but held that the deprivation of life was
done in accordance with the law of Sarawak and therefore the requirements of Article
5(1) of the Constitution were satisfied.
On the other hand, it is undeniable the indigenous people in Malaysia have
poorer health qualities compared to the citizens who do not live in the forests and
practise traditional cultures. Indigenous people have higher risks in getting chronic
diseases and earlier death because of the lack of knowledge in the medical field.
Indigenous women and girls face particularly severe health problems due to
development projects, including on their reproductive health because they are exposed
to chemicals in oil palm plantation areas. Besides, the forests that were already
damaged by the authorities must have also damaged the crops or herbs that were
cultivated by the indigenous people. In this issue, the indigenous people will not have
enough herbs to produce their own traditional herbal medicine which makes their
health issue worsen day by day.
The government should provide better healthcare for aborigines and natives by
building healthcare centre in aborigines and native village and employ Aboriginal
doctors and nurses to ensure they get appropriate treatments when they are sick in
shorter time. Besides, the volunteers with medical certificates can visit a certain
indigenous village frequently in order to provide them simple body check-ups
especially for children, women and the aged. This requires the communities from the
Non-government Organisation or societies with medical backgrounds such as St John
Ambulance to visit the indigenous people to learn more about health issues and ways
to keep healthy. Having campaigns to help Aboriginal patients understand their
disease is a great way to enhance their knowledge on health issues too. It is essential
to let them know more basic knowledge with regards to health care. Last but not least,
nutrition education among Aborigines and natives will increase their food
and nutrition knowledge to maintain or improve their health especially for elderly,
pragnant woman and children.
In Royal Belum State Park in Perak, Malaysia, the indigenous Jahai people
who were traditionally nomadic was forced to live in designated areas by the place
where they used to live. They had no choice but to do so due to a luxury resort which
attracts tourism while a just outside the Park promotes tourism with invitation to
experience life in remote villages of the Jahais. This has particularly affected the
health of the Jahai children and child death rate shot up to as high as 50%. Doctors
have traced the disease which was leading to the weakening of the immune system.
The Jahai population has reportedly reduced to from 600 to 200 within a short period
of time. Further, as the Jahai people have already exhausted a lot of natural resources
in the areas, they currently have limited food rations provided by the government,
which is clearly not a balanced diet, and not even enough to feed an entire family for
more than two months. On top of that, the State Park did not give the consent to the
poor tribe to clear land for farming, fish with nets or sell forest produce. This has also
compelled them to change their nomadic, hunter-gatherer way of life. This has clearly
violated the Federal Constitution in Article 5 (1) that states no person shall be
deprived of his life or personal liberty save in accordance with law. In this issue, the
freedom for the Jahai tribe to live by their own style of life was restricted by the
authority for self uses.
Last but not least the resources of the state and its authority must stop trying
and forcing the indigenous people to convert their religion into Islam and be a
Muslim. IN fact, such energies and resources should be utilized to further promote the
culture and spirituality of the indigenous people. The indigenous have their own
beliefs and religion which is animism. They believe in big trees have possess great
spirit and must be respected and worshiped, the sun is a bad spirit because it makes
them feel hot while the moon is a good spirit as it gives them light to hunt for food
during night times in the forest. They also believed that the house of the deceased
should be abandoned or abolished to avoid bad spirit from disturbing children.
As we can see, indigenous people have their own culture and beliefs just like
all other races in Malaysia. We have Muslims, Buddhists, Hindus and even Christians.
As stated in Article 11 (1) of the Federal Constitution states that every person has the
right to profess and practise his religion. Therefore, Orang Asli Development
Department (JAKAO) director-general and the indigenous people representatives in
the Parliament must hold the obligation to voice up the issue to the government in
order to protect the indigenous people from being tricked or forced to convert into a
certain religion. Besides that, the chief or head of the tribes must ensure that their
people are not threatened to be converted into any other religion not volunteerly.
According to a news article posted by The Rakyat Post on 10th July 2019, an
indigenous community from Gerik, Perak raised an issue of harassment that they
suffered from duty-bound religious preachers. Members of the community stated that
they have been coerced for a number of years that they had been insulted by the
forced Islamisation imposed by some members of the “modern civilized society”.
Many of their tribe members had shockingly found the religious status on their ICs
placed as Islam, without any consent from them even converting to the religion. Even
the children were in danger for being forced to convert their religion. The community
claimed that children were unwillingly being taught Islamic teachings in school and
even forced to fast during Puasa month. This annoyance towards forced religious
conversions continued to Christian proselytizers who also tried to spread the Christian
religion among the native community. These shocking issues were brought forward
by a group of Temiars from the villages of Kampung Tasik Asal Cunex, Kampung
Ong Jelmol, Kampung Sungai Leyef, Kampung Sungai Papan, and Kampung Pos Pia.
They came to the Parliament to present a memorandum of understanding to the
government. The community felt that their rights and freedom to choose their religion
had been deeply threatened and the constitution has been violated, which was Article
11 of the Federal Constitution, the highest law in the land. The article is the highest
and most supreme law of the federation that protects the fundamental rights of the
citizens of Malaysia to have the freedom to choose their own religion.