INTRODUCTION TO Sed LEGALMALACCA SULTANATE TOPIC ENGLISH LAW (WEST MALAYSIA) ENGLISH LAW (EAST MALAYSIA)MALACCA SULTANATE Important facts /° Before the independence of Malaya in 1957 and the formation of Malaysia in 1963: the West Malaysia has its ruling system mainly based on religious guidance. * The sharia or Islamic law has been incorporated in the existing states’ law, such as the Undang-undang Kedah (Kedah Laws), Undang-undang Pahang (Pahang Laws), and Undang-undang Melaka (Malacca Laws). Undang-undang Melaka, that has elements of sharia. * Social traditions depicted by the Sejarah Melayu (Malay Annals): Islam: state religion of Malacca. The rulers had appointed Qadis (judges) as their advisers in religious matters. This was proven by the presence of prominent religious men such as Kadi Yusof, Kadi Monawar, Kadi Sadar Johan and Sharif Muhammad Kebungsuan. ° Malacca Sultanate: was a model for the later Malays states which formulated the concept of state and its functions,MALACCA SULTANATE Important facts 2 Types of laws: Written law (Undang-Undang Melaka also known as Hukum Kanun Melaka or Risalat Hukum Kenun and Undang-Undang Laut Melaka) © Unwritten law (Adat Temenggung) [patriarchal Malay customary law] which the law of Sultan or law ordained by the rulers. Sultan is the apex in the administration structure of Malacca Sultanate and he wields absolute power. * Several important officials in the Malacca Sultanate administration: Bendahara, Temenggung, Laksamana, Penghulu Bendahari, Shahbandar, & Mandulika. « The local people continued to practice Islamic laws and Malay customs despite the Malacca fell into hands of Portuguese and Dutch colonial masters = made relatively little impact on the Malay Peninsula's legal system.ENGLISH LAW (WEST MALAYSIA) Importance facts Francis Lights “acquires" the island of Penang in 1786 and 1791 under aegis of East India Company. The 1 Royal Charter of Justice 1807 (letters patent) was issued on 25 March 1807 which resulting the establishment of ‘The Court of Judicature of Prince of Weles' Island which was to exercise all the jurisdiction of the English courss of law and chancery 8 “60 faras circumstances will admit" in civil, criminal and ecclesiastical matter. Straits Settlements (Penang, Malacca & Singapore) was established in 1826 due to Anglo-Dutch Treaty 1824, The 2% Royal Charter of Justice 1826 was issued on 27 November 1826 which leads to the establishment of “The Court of Judicature of Prince Cf Wales’ sland, Singapore and Malacca’ which resulting Penang in a sense had a second statutory reception of English law although it was first for Singapore and Malacca. The 314 Royal Charter of Justice 1855 was introduced in 12 August 1855: which enable the reorganization of the court system. The court spit into two divisions: one for Penang and others for Malacca and Singapore. Result: Several cases such as the Goods of Abdullah (1835) 2 Ky 8, Fatimah v Logan (1871) 1 Ky 255, Haji Salleh Bin Haji smail & Anor v. Haji Abdullah Bin Haji Mohamed Salleh & Ors [1935] 1 MLJ 26: the lex loci of Straits Settlement is English law with the proviso thatas far as local circumstances will admit:ENGLISH LAW (WEST MALAYSIA) Importance facts « The Supreme Court Ordinance 1868 was passed by Legislative Council of the Straits Settlements abolished of the Court of Judicature of Prince of Wales’ Island, Singapore & Malacca and established a new court known as Supreme Court of the Straits Settlement. © The Courts Ordinance 1873 : a) The Supreme Court reorganized under four judges: Chief Justice, the Judge of Penang, a Senior and a Junior Puisne Judge. One division of the Court sat in Singapore and Malacca, whilst another sat in Penang. b) Lay justices ceased to sit. ©) Establishment of specialized court such as the Court of Quarter Sessions which had jurisdiction over criminal cases and it was presided over by the Junior and Senior Puisne Judges in Singapore and Penang respectively. 4d) The Supreme Court could also exercised appellate jurisdiction and could sit as a Court of Appeal in civil matter. The Court sat as a Ful Court of Appeal of not less than three Judges and final appeals hing to the Judicial ‘Committee of the Privy Council. © Courts Ordinance 1878 was introduced which amended the constitution of the civil and criminal courts of the Straits Settlements. The Ordinance established the following courts: (i) the Supreme Court of the Straits Settlement (with the same jurisdiction as the English High Court); (ii) Courts of Requests at each of the Settlements; (iii) Courts of two Magistrates, at each of the Settlements; (iv) Magistrates’ Court, at each of the. Settlements; (v) Coroners’ Courts at each of the Settlements; and (vi) Justices of the Peace.ENGLISH LAW (WEST MALAYSIA) Importance facts + Section 6 of Civil Law Ordinance 1878: introduces a formalization of English commercial law which further re-enacted in the current Civil Law Act 1956. However, Section 6 further excludes the application of English land law in the Straits Settlement. * Section 6 of Civil Law Ordinance 1878 In all questions or issues which may hereafter arise or which may have to be decided in this colony which respect to the law of partnerships, joint stock companies, corporations, banks and banking, principals and agents, carriers by land and sea, marine, insurance, average, life and fire insurance and with respect to mercantile law generally, the law to be administrated shall be the same as would be administrated in England in the like case, at the corresponding period if such question or issue had arisen or had | to be decided in England unless in any case other provision is or shall be made by any Statute now in force in this Colony or| hereafter to be enacted. Provided that nothing herein continued shall be taken to introduce into this Colony any part of law of England relating to the tenure lor conveyance, or assurance of or succession to any land or other immoveable propery or any estate, right or interest thereon. « Statutory introduction of English law: Federated Malay States (Civil law Enactment 1937) & Unfederated Malay States (Civil Law Extension Ordinance 1951) which later replaced by Civil Law Ordinance 1956. Upon incorporation of Sarawak and Sabah into the Federation of Malaysia, 1956 Ordinance superseded by the current Civil Law Act 1956 (revised 1972).ENGLISH LAW (SARAWAK, EAST MALAYSIA) [important facts "Sarawak was originally a part of the dominion of the Sultan of Brunei. Sarawak was ceded to James Brooke in 1841 in return fr services rendered in ‘making peace among warring bes. The administration of Sarawak under the Brooke Rejahs has been described as an "adminisvation of wust where Serawak belonged tothe people ond the Rajah exereised authority on thei behalf ond in thew interest” | To restore law and order, Brooke promulgated a set of eight laws including punishment for certain crimes such as murder and robbery freedom of trade and labor and collection of revenue: He estabished a number of courts comprising the Debtor's Courts, Chinese Cours, Court of Requests, Bankruptey Courts, Native Courts and Supreme Courts He alo set up an administrative machinery, uided by the principle thatthe customs of the local inhabitants should be retained as far os praciicable, Provisions were made for frequent conaultsvon with native chiefs, > In essence, English law suitable to local conditions became applicable unless modified by Orders of the Rajah. The administration of justice in Sarawak inthe est, colonial days was relatively informal combining tenets of the English system of justice familar tothe Rajah, and native customs. | The formal reception of English law into Sarawak took place in 1928 through the Law of Sarawak Order which provided the statutory authority on the source of law to be applied by the courts, The writen law of Sarawak was derived to a large extent from legislation in force in Singapore and the Federation, and therefore indirect from the written law in India and the United Kingdom. The laws in Sarawak in the early days took the form of frees ised by the Rajah, examples of which ate the Courts Order 1922, the Interpretation Order 1933 andl Crcler (ol (Law of Sarawel) 1928, Order provided fora general rule that English law would apply nthe absence of spectic legislation > In 1888 Sarawak bacome a protected state and it became a Crown Colony on 18 May 1946 when it was ceded to Britain by the third Rajah, Sir CCharles Wyner Broke by way ofan instrument of cession executed by the Sarawak Order Council 1946 on 1 July 1946. In 1949, the Application of| Laws Ordinance in Sarawak was passed fo further expand and clanfy the application of Englsh law, This provided thatthe common law of England and the doctrines of equity together with statutes of general application a= administered or in force in England at the commencement of the Ordinance, shall be the oy in fore in Sawa ins ar asthe ercumsances of Sarawak and ts ihablans permit and subject to such quaiietions fslocal circumstances and nate customs render necessaENGLISH LAW (SABAH, EAST MALAYSIA) © ke Sarawak, Sabah (then known as North Bomeo) was also part of the Brune! Sultanate. However, due to internal power struggle and uprisings ‘within the Sultanate, pars of Sabah were coded to the Sulu Sultanate in 1450 in return for suppor from the Sulu Sultanate in suppressing the Uprisings in Brunei. «© From 1881, the British North Somneo (Chartered) Company acquited intrest over Sabah. While the Company’s interests were primarily commercial, it also undertook to provide facilities for the Reyal Navy, to retrain from monopolizing trade, to administer justice with due consideration for native laws and practices and to refrain ffom interfering with religion. In 1886, the British Government declared the tertories administered by the ‘Company, together wth those in Sarawak a protected State under the Protectorate Agreement dated 12 May 1888, By an agreement with the British Government executed on 26 June 1946 the Chartered Company ceded allits rights, powers and interests in North Borneo to the Bish Government to take effect from 15 July 1946, Therefore in 1946, the territory became, with Labuan the now Crown Colony of North Bomeo, « Similar to Sarawak, the written law of Sabah was derived toa large extent from legislation in force in Singapore and the Federation and therefore Inditelly from the weir law in india and the Urited Kingdom * n 1938, the Chil Law Ordinance was passed, formally acknowledging the recoption of English law into Sabah “having regard to native customs and local conditions. In 1951, the Application of Laws Ordinance was passed to further clarify and expand the application of English law in Sabah. The 1951 Ordinance provided that the common Inw of England and the doctrines of equity, together with statutes of general application as administered or in force in England at the commencement of the Ordinance, shall be the law in force in Sabah, in so far asthe citcumatances of Sabah andits inhabitants permit and subject to such qualifications as local circumstances and native customs render necessary