CHAPTER 2: BRITISH COLONIZATION

BY: DR. HASBOLLAH BIN MAT SAAD

A University
CHAPTER 2: BRITISH COLONIZATION

Discussions:
Doctrine of Reception
The Straits Settlements
The Malay States
Borneo States
Independence
Scope of Discussion: Reception of English law; The Straits Settlements (Malacca,
Penang and Singapore); The Malay States; The Borneo states; Independence.
DOCTRINE OF RECEPTION

One country voluntarily
chooses to accept or receive
the laws of another country
MEANING OF RECEPTION
RECEPTION
Involuntarily infused with such
laws by an ascendant state
p. 45
The English law becomes
Adoption of a system of law
applicable to a British Crown
that has been formulated in
Colony, protectorate, or
another state
protected state
TERMS RELATED TO THE RECEPTION OF LAW
pp. 45-46

Terra Nullius (nobody’s land): to describe a territory which has never been
subject to the sovereignty of any state, or over which any prior sovereign has
expressly or implicitly relinquished sovereignty.

Veneration Reception: occurs if alien norms, institutes or a whole system is

adopted for their venerated position and prestige of cultural background.

Necessity Reception: occurs where there is an apparent need for a change of

legal system in one culture and another existing culture provides an
opportunity to satisfy the need.
 p. 46

Automatic Reception: applied when an uninhabited or barbaric territory is first occupied and civilized by the British settlers,
all of English law is automatically received into the territory. This rule refers to settled colonies, which means unsettled lands,
which are settled by the British settlers. There is no automatic reception in the case of cessation or upon conquest.

Express Reception: refers to reception by clear wording and express words of the law in each
territory, e.g. when a particular provision stated the application of English law in that particular
territory.
Implied Reception: refers to the interpretation made by the court, according to justice and
right, as discussed in Fatimah v Logan (1871), whereby the judge held that since the deceased
died in Penang, and at that particular time, the deceased lived in Penang, so the deceased was
subject to the law of Penang and at that particular time, by virtue of the 1st Charter of Justice,
the English law applied.
 p. 46

Voluntary Reception: reception which is

Involuntary Reception: occurred when law is
voluntarily accepted by the local inhabitants,
imposed on the ceded colony without the
e.g. the application of English law by virtue of
local inhabitants consent to the application.
section 3 and 5 of the Civil Law Act 1956.
 THE CONCEPT OF LEX LOCI
pp. 50-51

Ceded Colony: There was

already existed a system of law
or administration and when
Settled Colony: English Law
British came they influenced the
will be applied and became the
system and adopted their
law of territory because there
system of administration. In
was no proper system of law
‘conquered’, or ‘ceded’ colonies,
before the British took over the
there was no wholesale
Penang. ‘Settled colonies’ were
transfusion of English law. Local
those acquired by discovery and
laws continued to apply, but
occupancy.
could be changed by either the
King, or the Parliament at
Westminster.
Brennan J: The hypothesis being that there was
no local law already in existence in the territory
the law of England became the law of the
territory... Colonies of this kind were called
"settled colonies".
Blackburn J: There is a distinction between settled colonies, where the land, being desert and
uncultivated, is claimed by right of occupancy, and conquered or ceded colonies. 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.

‘Settled colonies’ were those acquired by discovery

and occupancy. These lands, regardless of whether
they were genuinely uninhabited, or already occupied, In ‘conquered’, or ‘ceded’ colonies, there was no
were treated as terra nullius. In such places, British wholesale transfusion of English law. Local laws
settlers took with them all the laws of England that continued to apply, but could be changed by either the
were applicable to their situation. These laws could be King, or the Parliament at Westminster.
changed by the Parliament at Westminster, or by a
local legislature, when it was established.
pp. 50-51

By 'desert', Blackstone was not referring to arid

Blackstone: conquered and ceded
sandhills, but to lands which were deserted,
colonies 'have already laws of their own'.
uninhabited, literally terra nullius.
PENANG – CEDED OR SETTLED COLONY??? pp. 51-52

Report Part of Kedah

Judicial opinion Under Siamese protection

• Kamoo v Basset
• R v Willans
1786/1791/1800 Treaty
• Fatimah v Logan
• Re Goods of Abdullah
• Choa Choon Neo v Spottiswoode 1795 Note found in an old
• Ong Cheng Neo v Yeap Cheah Neo register of survey
 Kamoo v Basset [1808] 1 Ky. 1

The Charter not in express terms

introduced English Law & its provisions
were interpreted by the judiciary as having
introduced English Law, as it stood in
England on 25 March 1807, into Penang.
Re Goods of Abdullah (1835) 2 Ky. Ec. 8

The religious & customs of the local inhabitants

were recognised as exception to the general
application of English Law.
 R v Willans (1858) 3 Ky. 16
Sir Benson Maxwell held:

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
England could hardly become lex loci. As it could
only become the personal law of the garrison
members.
At the same time …
The law of Kedah could not
apply to Penang because the
island was without inhabitant
to claim the right of being
it was held that:- governed by existing laws;
there were also no tribunals
on the island to enforce such
laws.
As such it is difficult to
For the first 20 years since
assert that the law of
it was found, there was
Kedah applies to the
island of Penang after it
no known body of law
recognized as the law of
was occupied by the
the place.
English administrators.
Choa Choon Neo v Spottiswoode (1869) 1 Ky. 216

''In this colony, so much of the law of

England as was in existence when it was
imported here, and is as general [and merely
local] policy, and adapted to the condition
Sir Benson Maxwell CJ and wants of the inhabitants, is the law of
the land; and further, that law is subject, in
its application to the various alien races
established here, to such modifications as
are necessary to prevent it from operating
unjustly and oppressively on them''.
 Fatimah v Logan (1871) 1 Ky. 255
“he was not merely
and that as the island
Sir William Hackett the commandant of a
was virtually
disagreed with Sir garrison but was an
uninhabited /
Benson Maxwell as able administrator
barbarous country
to the position of who obtained the
they carry with them
Captain Light and his settlement for the
the laws and the
marines. He held East India Company
sovereignty of their
that: and so for the Crown
own country”.
of England,
 Hackett J:- In 1786, Penang being then a desert
and uncultivated island, uninhabited except by a
few itinerant fishermen, and without any fixed
institution; was ceded by the Rajah of Kedah to
Captain Light, an officer of the East India Company,
for and on behalf of the company…
Ong Cheng Neo v Yeap Cheah Neo (1872 )

The matter was finally settled by Privy Council as

follows: “It is really immaterial to consider whether
Prince of Wales Island should be regarded as ceded
or newly settled territory, for there is no trace of
any laws having been established there before it
was acquired by the East India Company”
SEJARAH MELAYU (1795 Note): “At the time
when the British came to Penang there was
a fairly large Malay kampong at about 18
acres on south bank of Penang river and
the land had been occupied for about 90
years”.
 1786/1791/1800 Treaty (pp. 47-50)

Treaties between the Sultan of Kedah and British (EIC)

• 1786: surrender Penang to EIC.

• 1791: Extension of EIC powers as regards to ownership
of Penang, trading activities and other criminal matters.
• 1800: Give more power to EIC to govern Penang and
its administrative issues.
 First Treaty 1786 (Not signed) (which is
supposedly called the surrender of Penang)
BEIC as the Guardian of pp. 47-48
CONDITIONS
the Ocean (Art. 1)

Trading Credit/Loan
Enemies
Activities Matters

Enemies of the King will British will not claim

British will help Kedah be considered as Can trade freely (Art. 2) against the King BUT
Art. 1 & Art. 6 enemies of the Prohibited items (Art. 3) can claims against
Company (Art. 5) others (Art 4)
 First Treaty 1786 (Not signed) (which is
supposedly called the surrender of Penang)

Article 1: That the Honorable Company will become the ocean guardian, and anyone who comes to attack the King
will be the enemy of the Honorable Company, and the expenses will be borne by the Company. This Government will
always place the armed fleet to control Penang, the nearby beach, belonging to the King of Kedah.

Article 2: All ships, barge, boat, small or large, which come from either the East or West, and head to the port of Kedah,
will not be stopped or prevented by agents of His Honourable Company, but left on their own accord whether to trade
with us, or with a company in Penang, as they may consider appropriate. All ships, under each class, heading towards the
port of Kedah, will not be blocked by the Honorable Company, or any person acting on behalf of, or under the authority of
them, but left on their own accord, whether to do business with the King of Kedah, or by an agent or agents of the
Honorable Company.
Article 3: Items such as opium, tin, and rattan, being considered as an integral part of our revenue, is prohibited. By virtue
of Kuala Muda, Perai and Krian, the released place of these items is so close to Penang that when residents of Company lived
there, this prohibition does not always comply with, then it should be stopped and the Governor General permits us take the profits
on these items, that is, a total of 30,000 Spanish dollars every year. Governor General in-Council, on behalf of the East India
Company, will ensure that the King of Kedah will not incur losses as a result of the British settlement established in Penang.

Article 4: If the agent of the Honourable Company provides the credit facilities to any relatives of the King, the Minister, an officer,
or the people, the agent will not make any claim against the King. The agent of the Honourable Company, or anyone living in
Penang, under the protection of the Company, will not make any claim against the King of Kedah for debts incurred by the Royal
family, the Minister, an officer, or the people, but the people who have a claim on any of the citizens of Kedah, will have the power
to seize the person or property of the person who owes them, according to the customs and the prevalence of the state.

Article 5: Anyone in the state, without exception, whether sons or brothers and sisters, who became our enemies will also
become the enemy of the Company; the Company's agents also will not protect them, without breach of this Treaty, which will
be sustainable as long as there is the sun and the moon. All people living in the States belonging to the State of Kedah, which is
going to be their enemies, or found guilty of murder, the British will not give any protection to them.
Article 6: If any enemy came to attack us through the
land, and we need the help of the Company,
strength, weapons and ammunition, the Company will
provide to us, for our own liability. This article shall be
referred to the East India Company's directions,
together with the request of the King of Kedah, as
cannot be met, before their permission obtained.
The Second Treaty dated 20 April 1791
(16 Syaaban 1205 Hijrah, Sunday) pp. 48-49

Exchange of
benefits
(Arts. 1, 2 & 5)

The Treaty Criminal who fled

(Never-ending away
agreement) (Arts. 3, 4, 6 & 7)

Enemy of both
parties
(Art. 9)
 The Second Treaty dated 20 April 1791
(16 Syaaban 1205 Hijrah, Sunday)
Whereas on the date of this treaty being written indicates that the Governor of Penang, a representative of EIC,
signed a peace and friendship with His Majesty Yang Di-Pertuan Kedah, and all senior officers and the people of
both states, to live in peace at sea and on land, will continue as long as the sun and the moon give light.

Article 1: The Company shall provide to the Yang Di-Pertuan Kedah, 6,000 Spanish dollars every year, for the
UK continued to have ownership of Penang.

Article 2: Yang Di-Pertuan Kedah agrees that all types of supplies needed for Penang, battleships, and
Company’s ships, can be purchased at Kedah without any hindrance or subject to any duty.

Article 3: All slaves who fled away from Penang to Kedah or from Kedah to Penang should be returned to their
respective owner.

Article 4: Any person who owes and evades the creditors, either from Kedah to Penang or from Penang to
Kedah, if they did not pay the debt, this person will be surrendered to the respective creditors.
Article 5: Yang Di-Pertuan Kedah will not allow any European from other countries settled in any part of the state.

Article 6: The Company will not receive any person who rebels against the Yang Di-Pertuan Kedah.

Article 7: Any person who commits murder, fleds away from Penang to Kedah or from Kedah to Penang, would be arrested and sent back
to the respective state on bail.

Article 8: Any person who steals the seal (to commit fraud) will also be surrendered to the respective state.

Article 9: Any person, enemy to EIC, Yang Di-Pertuan Kedah will not provide them any commodity.
All these nine Articles were made and agreed upon, and the act of peace was made between Yang Di-Pertuan Kedah with the Company;
Kedah and Penang will become as one state. This agreement is made and executed by Tunku Shariff Muhammad, Tunku Alang Ibrahim
and Datuk Penggawa Tilebone, a representative for the Yang Di-Pertuan Kedah, and been given to the Governor of Penang, a
representative for the Company.
In this agreement, those who deviate from any part of the written agreement, then God will punish and destroy them; to Him there would be
no sustenance.
 The Third Treaty dated on 6 June 1800 pp. 49-50
(12 Muharram, 1215 Hijrah, Wednesday)

The Treaty
(Never-ending
agreement)

Special
Ratification of Criminals Enemy of both Economic
Benefit treatment to
the treaty (Arts. 4, 5, 7, 8, parties activities
(Arts. 1-3) BEIC
(Arts. 13-14) & 9) (Art. 10) (Arts. 10-12)
(Art. 6)
 The Third Treaty dated on 6 June 1800
(12 Muharram, 1215 Hijrah, Wednesday)
Whereas, on this day, this treaty shows that Sir George Leith, Baronet, Lieutenant Governor of Penang, on behalf of the UK, has agreed and signed
a Treaty of friendship and alliance with the Yang Di-Pertuan Raja Muda of Perlis and Kedah, and all its officers and chiefs of both states, to continue
at sea and on land, as long as the sun and the moon remained with the movement and beauty.

Article 1: the EIC shall pay annually to the Yang Di-Pertuan Perlis and Kedah, ten thousand dollars, for the UK to have the State of Penang, and the
opposite state across the beach as stipulated by both parties.

Article 2: Yang Di-Pertuan agreed to give the EIC, forever, all parts of the coast between Kuala Krian and Riverside of Kuala Muda, starting from the
beach to the mainland about sixty relung. All the said areas as referred above shall be measured by a person appointed by the Yang Di-Pertuan and
appointed person from the Company. The EIC shall protect the beach from all enemies, bandits and pirates who might attack from the sea from
North to South.

Article 3: Yang Di-Pertuan agrees, that all kinds of commodities for Penang Island, warships and company’s ships, can be purchased in Perlis and
Kedah, without any hidden condition or subject to any tax or duty; and all recurrent boats from Penang to Perlis and Kedah for the purpose of
purchasing commodities shall be equipped with the appropriate passport for this purpose, to avoid any punishment.

Article 4: All persons who run away from Perlis and Kedah to Penang and from Penang to Perlis and Kedah would be sent back to their respective
owners.
Article 5: All debtors who evade their creditors from Perlis and Kedah to Penang or from Penang to
Perlis and Kedah, would be surrendered to their creditors if they did not pay their debts.
Article 6: Yang Di-Pertuan shall not allow any European from other countries to settle in any part of the
State.
Article 7: The EIC will not receive any person who proved, as did rebellion or insurrection against the
Yang Di-Pertuan.
Article 8: Any person who is found guilty of murder, run away from Perlis and Kedah to Penang or from
Penang to Perlis and Kedah, would be detained and returned on bail.
Article 9: Any person who steals the seal (committing fraud) will also be surrendered to the respective
authority.
Article 10: All those who have or will become enemies of the EIC will not be provided by the Yang Di-
Pertuan with the goods when required.
Article 11: All citizens of the Yang Di-Pertuan, who brought the state revenue through the river, will not
be interrupted or prevented by the Company.
Article 12: Goods needed by the Yang Di-Pertuan from Penang to be acquired by an agent of the company, and shall be deducted from
the consolation.

Article 13: Soon after the Treaty was ratified, the arrears accrued, as agreed in the Treaty and prior Agreement shall be paid to the Yang
Di-Pertuan Perlis and Kedah.

Article 14: With the ratification of this Treaty, all previous agreements and treaties between the two Governments (will) become null and
void.

All fourteen articles once attested and agreed upon between His Majesty Yang Di-Pertuan and EIC, Perlis and Kedah and Penang will
be considered as one state, and those who deviate or not following any part of this agreement, God will punish and destroy them; such
person will suffer loss.
This Treaty is made and executed, the two treaties are the same type and date, which have interchange between Baginda Yang Di-
Pertuan and Governor of Penang, and sealed with the seal of State Senior Officers under the Yang Di-Pertuan, in order to prevent
disputes.

Written by Judge Ibrahim Ibni Sri Raja Muda, under the order of the Yang Di-Pertuan, highest esteemed.
 LEGAL CHOAS (p. 52)
No official body of law existed for the first 20 years of its history.

~ No separation of the
The task of maintaining order was left to the judiciary from the
executive.

Superintendent. ~ Request from Light

& his successors for a
more regular form of
Francis Light & his successors :- assisted by a government & proper
system of
Magistrate & administration of
- administered justice according to the second justice drew from EIC
& the Governor

dictates of their consciences. assistant. General in India only

vague instruction in
the form of letters in
1788 respectively.

INSTRUCTION 1788
… to preserve good order
in the settlements as well
as you can, by
imprisonment or other
common punishments so
far as the inhabitants not
British subjects are
concerned.
LETTER OF
(p. 52)
Effects:
… in murder cases you are 1. The letter only authorized the
authorized to assemble a punishments for local inhabitants
court martial consisting of and not British subjects,
not less than 5 members 2. The British subjects had to be
sent to Bengal for further trial,
to be composed of
officers of the army and 3. The punishments were not
effective (covered only
of the most respectable imprisonment and confinement)
inhabitants to try & judge and need the consent from
all persons not British Governor-General in India before
implementing death sentence, and
subjects” 4. Injustice treatment to the local
inhabitants.
 PETTY CIVIL CASES
(local inhabitants)

Trial by PENGHULU # These headmen – administered

their respective laws & customs.
(Kapitan) – appointed by
the Superintendent for # Civil jurisdiction was limited to
each of the various 10 dollars & all other cases were
communities. to go to magistrate.

Far from being lex loci, EL was not even recognized as the personal law of the English inhabitants in Penang. There were
courts & judges but the justice which they administered was not in accordance with the rules & principles of English Law.
 a Chinese
male and a
The legal Chinese lady Man: to be
chaos started were found imprisoned –
with the case guilty of then sent off
of adultery. the island

Aphoe and punishment: their

Kehim (1797) head were shaved
bald + to stand
twice in the pillory
from 4 – 6 in the
evening
Finally…
CHARTER OF
JUSTICE I (1807)
(pp. 52-54)

was introduced…
 THE PROVISIONS OF THE CHARTER
With regards to the criminal law, the
Charter enjoined the court to hear
and determine indictments and
offences, and give judgement
thereupon, and award execution
thereof, and shall in all respects,
administers criminal justice in such
or the like manner and form, or as
nearly as the condition and
circumstances of the place and the
persons will admit of, as in England.
With regards to civil cases, there were at least two provisions in the Charter which were
important. First, there was a direction in the Charter that in civil cases, the court shall give
and pass judgement and sentence according to Justice and Right. Secondly, the Charter
provided that where ecclesiastical jurisdiction was conferred on the court, it was to be
exercised ‘only so far as the religions, manners and customs of the inhabitants admit’.
The court has wide jurisdiction to cover civil and
It establishes the Court of Judicature criminal as well as ecclesiastical matters as far
as the local conditions and inhabitants would
of Penang admit (such as religion, manners and customs of
the inhabitants
 Effects

Kamoo v Thomas Bassett (1808)

• where the COJ applied retrospectively to civil injuries which were sustained
and crimes which were committed b4 the charter came into in force.
THE APPLICATION OF ENGLISH LAW & IGNORANCE OF ISLAMIC LAW

• the issue : whether a

“…by virtue of 1st
Muslim who died in Charter in 1807,
Penang could dispose
Re Goods of his entire property by that a Muslim might
means of a will and by will transfer his
Abdullah what laws were to be
applied. own property even
(1835) 2 Ky. Ec. 8 • It was established that
under Islamic law a though it is contrary
Muslim can devise 1/3 to the Islamic law”
of his property to non-
beneficiaries.
 Fatimah v Logan (1871)

The deceased in his will whether the capacity of the

What law to be applied to
mentioned about particular land deceased to make a will was to
The issues: determine the validity of the
in Penang that was to be for be decided by Mohammadan
will; and
waqf and kendoories. law or by the English law.

Hackett J: since the lex loci of Penang is English law, then the validity of the will must be determined in accordance with
English law. The propositions that before the Charter of 1807, Islamic law was in force in Penang, and that the Charter
made no alteration in the law cannot be accepted. In 1786, Penang was a desert and uncultivated island, or if not then, by
the Charter of 1807, the law of England was introduced into Penang and became the law of the land.
 CHARTER OF
JUSTICE II (1826)
(p.56)

The Charter was introduced in Melaka as a result of the Anglo-Dutch Treaty 1824 when the British took permanent
possession of Melaka in 1825.

The objective: to extend the jurisdiction of the Court of Judicature of Penang to Singapore and Melaka. The new court was
named as the Court of Judicature of the Prince of Wales Island, Singapore and Melaka.

The effect of the Second Charted of Justice was addressed by Sir Benjamin Malkin in Melaka case of Rodyk v Williamson
(1834) 1 Ky. Ec. 9where it was stated that the Charter had introduced the law of England as it stood in 1826 so as to
supersede Dutch law in Melaka. In this case, a Dutchman passed away and left his property and the issue was whether
the Dutch law or the English law should be applied to settle the matter. Therefore, the Dutch law was superseded by the
Charter.
 CHARTER OF
JUSTICE III (1855)
(pp. 56-57)

It was granted in 1855 – due

to rapid changes, increasing The court was composed
number of population and into 2 divisions
commercial activities – to (Court of Admiralty):-
the East India Company.

Jurisdiction over Singapore &

Jurisdiction over Penang
Malacca consisting of a
consisting of Governor /
Governor / Resident
Resident Counselor and
Counselor and Recorder of
Recorder of Penang.
Singapore
EFFECTS OF THE CHARTER OF JUSTICE ON
THE LEX LOCI & ISLAMIC LAW

pp. 57-58
 The Status of the Islamic Law

The status of Islamic law was slightly

affected. The tendency of the British
to apply English law to the local
inhabitants invites many critics and
arguments because some of Muslim
matters were held in accordance of
English law and against Islamic law
itself.
This can been seen in various cases
involving Muslim personal matters in
Straits Settlements such as
succession, will, validity of marriage
and etc.
Re Maria Huberdina Hertogh [1951] 17 MLJ 164
Facts: In this case, Maria Hertogh, born in 1937, came into the custody
of one Aminah bt Mohamed in 1942 and as of that date she was brought
up as a Muslim called Natrah.
• During that time, Maria’s father, a Dutch citizen was a prisoner of war interned by the Japanese army.
• After the war, the father commenced proceedings in the High Court in Singapore seeking Maria’s custody, but the proceedings were held to be a nullity.
• On August 1, 1950 Maria was married to one Mansur bin Adabi in Singapore.
• On August 24, 1950 the father resumed proceedings, this time asking for declaration, inter alia, that the marriage was invalid that he, as Maria’s father, be given
custody of the child.

Held: Since Maria was under 16 years of age during the purported marriage, the marriage was
not valid because according to her lex domicili (i.e. the law of Holland), the consent of the
Queen of Holland was a pre-condition for its validity. As the consent had not been obtained, the
marriage was void and that being so custody was awarded to the father.
 Hawa v Daud [1868] 26 Leic. 253

Marriage and divorce was held valid although the courts experienced difficulty in
deciding suits which involved rules from various schools of Islamic law.
 The court held that a
Muslim woman was
entitled to bring an
Mong v Daing Mokkah action in the civil
court for damages for
[1935] MLJ 147 breach of promise to
marry. The principle
of English law was
expressly applied to
prevent injustice.
 Nafsiah v Abdul Majid [1969] 2 MLJ 174
The plaintiff alleged that the defendant promised that he would marry her. This promised was
subsequently reduced into writing. The plaintiff also alleged thatshe was seduced by the defendant
and as a result she became pregnant and a child was born on July 29, 1964. In the statement of
defence, the defendant initially raised the question of jurisdiction of the High Court to hear the case.
The defendant also denied ever having made any promise to marry her and ever seduced her. He also
denied that he was the father of the child. He also said that the written document of promise to
marry the plaintiff was void ab initio because he was forced to sign the documents under duress. The
court held that the Court of Judicature Act 1964 prevailed over any other written law other than the
Federal Constitution, and expressly bestowed upon the High Court jurisdiction to entertain claims for
damages arising out of breach of promise to marry and such jurisdiction was not excluded merely
because the parties are Muslims.
 THE ANGLO-DUTCH TREATY 1824

The UK agrees not to

establish any office
The UK ceded its factory
The Netherlands on the Carimon
of Fort Marlborough in
British subjects to be The Netherlands cedes the city and The Netherlands Islands or on the
Bencoolen (Bengkulu) The UK withdraws its
given trade access to cedes all of its fort of Melaka and withdraws its islands of Batam,
and all its property on the opposition to the
the Maluku Islands, in establishments on the agrees not to open opposition to the Bintan, Lingin, or any
island of Sumatra to the occupation of the
particular with Indian sub-continent any office on the occupation of the of the other islands
Netherlands and will not island of Billiton by
Ambon, Banda and and any rights Malay Peninsular or Island of Singapore south of the Strait of
establish another office the Netherlands.
Ternate. associated with them. make any treaty with by the UK. Singapore, or to
on the island or make any
its rulers. make any treaties
treaty with its rulers.
with the rulers of
these places.
ANGLO-DUTCH TREATY (1824)

BRITISH

DUTCH
IMPLICATIONS OF THE ANGLO-DUTCH TREATY 1824 (pp. 58-62)
The Anglo-Dutch Treaty of 1824
officially divided the Malay world
into two; Malaya, which was
ruled by the United Kingdom
and the Dutch East Indies, which
was ruled by the Netherlands.
The successor states of Malaya
and Dutch East Indies are
Malaysia and Indonesia,
respectively.
The treaty came at a time as the influence of
the British East India Company was waning
and the individual merchant was gaining more
influence within Great Britain. The emphasis on
territory and sphere of influence is consistent
with former EIC policies in India and elsewhere,
but even as the four years long negotiations
went on, the existence of Singapore strongly
started to favor the new independent
merchants and their houses. As this came at
the heels of the termination of the monopoly
the EIC had on the area, the subsequent rise of
Singapore as a free port and the first example
of the new British free-trade imperialism can be
seen as a direct result on the confirmation of
its status in the treaty.
BRITISH COLONIZATION:
THE MALAY STATES
Why the British Intervened in the
Malays States’ Administration?
The British created
REASONS reasons:
The Change 1. Safeguard the
of the
• Strategic Location of the Malay Peninsular Political
Economic interests of the
Interest
• Economic Interest Scenario in investors;
British
• The Opening of Suez Canal in 1869 2. To settle the clashes
• The Change of the Political Scenario in British
in the palace;
• The Development of Industrial Revolution in
Europe in the 19th Century 3. To settle the secret
• The
Effort by Sir Andrew Clarke Opening of
society problems;
• Other European Power Suez Canal 4. Pirates; and
• Trying to Maintain Peace and Taking in 1869
Advantage of Dynastic Quarrels 5. Protection to the
• Britain’s Ambitions to Acquire Siam’s Malay Malay States.
Vassals (Patani, Kedah, Perlis, Kelantan, and
Terengganu)
The Pangkor Treaty 1874

Sultan Intervention Fear the

needs help because of rival from
economic, other
geopolitical & European
humanitarian power
Disputes:
1. Sultan
Piracy
2. Chinese Clans Tin Industry
Interference in the Residential
administration
System

Oppressive
System
Rebellion & dissatisfaction
among the people

Effects of the Pangkor Treaty 1874

PRECEDENT TO THE INVOLVEMENT

IN THE FEDERATED MALAY STATES’
ADMINISTRATION
 Economic Factors

Industrial
Revolution

Reasons for the British

Raja Abdullah
vs
Intervention
Raja Ismail in Perak
Succession
Ghee Hin disputes
vs
Social Factors
Hai San
Anarchy Chaos
Perak and Surrender of
East India Forever Dinding 1826
Company
Treaty (6
September
1825)

Treaties Involved
Perak and the East Pangkor Treaty
India Company 1874
Treaty (18 October
1826)
 Raja
No formal Civil War
Abdullah
vs
agreement Raja Mahadi
signed

Klang

Interchanged
of letters of
proclamation
SELANGOR Piracy

JG Davidson (1875)
 After the
Civil War death of
Bendahara Economic
Ali Problems

Killing of
Goh Hui PAHANG
JP Rodger (1888)
 Pahang Consolidated Co. Ltd. V The State of Pahang [1933] MLJ 247

◦ It was held that Pahang is one of the sovereign Federated Malay States, and as such,
was immune from any suit or proceeding against it.

◦ The constitution of Pahang recognized Sultan of Pahang as an absolute ruler in whom

resides all legislative and executive power.
NEGERI SEMBILAN (p. 137-138)
Treaty of Negeri Sembilan July 13, 1889 (First Coalition Agreement)

Dato’ Kelana’s
Sungai Ujung was authority was
divided into 2 challenged by
parts and they Dato’ Bandar.
There was also
power struggle to
Martin
were ruled by Clarke intervene
control and collect Lister
Dato’ Kelana Syed in Sungai Ujung in
tin taxes at Linggi
Abdul Rahman order to support
River. (1889)
and Dato’ Bandar the authority of
Kulop Tunggal. newly appointed
Dato’ Kelana.

August 8, 1895, 29 April 1898, the Third Treaty

the Second Agreement
UNFEDERATED MALAY STATES
 THE BANGKOK TREATY 1909
The treaty was formed due to the demand made by the British to control the Malay States situated in
North besides discussion relating to the Northern Malay States on the amount of debts owed to Siam

British advisers were appointed in order to advise Sultan in matters that related to the
administration.

The Treaty stated that Siam would relinquish her power on Kedah, Perlis, Kelantan and Trengganu
to British and British agreed to settle all the debts of the 4 North Malay States.

Siam was also to be given a loan amounted to $4 million to build a railway train from Bangkok to the
Malay States. They promised not to interfere in any states that fell under the reign of Siam.
 KELANTAN
Treaty of Kelantan & UK (22/10/1910):
1. No political ties with any foreign power; J.S Mason was appointed as the first adviser in
2. Appointment of an Advisor & Assistant Kelantan and under his administration, the security
Advisor; force and Public Service was standardized.
3. Raja Kelantan – decreased.

However, there was dissatisfaction among the

The laws and regulations of customs and Islamic
Malay rulers and a riot occurred at Pasir Puteh and
tradition in the state were also changed towards the
headed by Hj Mat Hassan or Tok Janggut. However
British system.
he was defeated and killed on 24 May 1915.
Duff Development Ltd v Govt. of Kelantan and Anor [1924] AC 797
◦ It was held that Kelantan was a sovereign state and was
therefore entitled to immunity from execution of its property
unless there has been waiver.

◦ An arbitrator is not a court, and therefore by appearing before

an arbitrator, the state cannot be deemed to have submitted
itself to the jurisdiction of the court.
 TERENGGANU
Sultan Zainal Abidin III refused to recognize all the treaties and agreements made between Siam and the British because
he claimed that he was not invited in any of the agreement. He refused to accept any of the British adviser.

But in 1910, one agreement was signed between the British and Sultan Trengganu to accept one British Consul Officer
and in return he would receive protection from British.

1919
J.L Humphreys
(Advisor)
In 1928, there was a riot at Sungai Berang led by Hj. Abdul Rahman Limbong but defeated by the British

Kedah had so many
problems especially in
debts during the reign
of Sultan Abdul Hamid
(1879 – 1943) and left
behind as compared to
other states.
S.K. Pillai v State of Kedah (1927) 6 FMSLR 160
KEDAH
George Maxwell
(Advisor)
This was due to the
Sultan Abdul Hamid One of the British was
Malay states
refused to recognize sent to Kedah to
experience whereby
the Bangkok Treaty persuade Sultan Kedah
Sultan lost their powers
and refused to accept and a train track was
after the Residential
the British advisor. built in 1912.
System.
 PERLIS
Raja Syed Alwi the Sultan of Perlis refused to
accept the British Adviser.
• He only appointed H.A Duke as the financial adviser to
advise him in financial matters and not in governmental
problems.
However, the 1st British adviser, Meadow
Frost was appointed and helped the Sultan in
reorganizing the State Council, developing the
economic, school and transport conditions.
 JOHORE
In 1885, Sultan of Johore went to London to sign a treaty with British to recognize him as a
Sultan of Johore, one respective of British was to be appointed only as the Consular in Johore
and Johore was prohibited to interfere in any matters of administration and politics in other Malay
States without the consent of the British.

Sultan Abu Bakar was not to give any concession to other European countries without the
consent of the British and both parties were to cooperate in defense administration.
 TREATIES BETWEEN JOHORE & BRITISH
11/12/1885
Diplomatic ties with the Government
Economic issues. Administrative issues.
of the Straits Settlements.

12/05/1914
Amendments to Treaty 1885. Article 3 (1885) – repealed.
Johore had, in fact already received the
British Adviser but they claimed that their
country was an independent state. Sultan
of Johore managed the state efficiently.
British wanted to strengthen their position
in Johore but under the reign of Sultan
Ibrahim, he refused to accept any British
Adviser and due to this, British threatened
him to be expelled from the throne and he
was forced to accept one British Adviser
officially in May 1914.
The status of Johore under the British protection was entirely different from FMS. In April 1895, a written constitution was
given to the state and by 1914, Johore was a fully organized state with a written constitution, a constitutional sovereign
and a complete machinery of administration.

In Mighell v Sultan of Johore (1894), the question of the immunity of the Sultan as the sovereign was raised.
The Sultan was sued for breach of promise to marry. After receiving a statement from colonial office that
Johore was an independent sate and that the Sultan was the sovereign ruler thereof, the court held that he
was immune from any legal process.
 DIFFERENCES BETWEEN RESIDENTIAL SYSTEM &
ADVISORY SYSTEM
Residential System in FMS Advisory System in UMS

British Residents were appointed in Perak, British Advisers were appointed in Kedah,
Selangor, Negeri Sembilan and Pahang Perlis, Kelantan, Trengganu and Johor

British Resident on duty was to advise the The duty was to give advice but was not
Sultan in all matters of administration except necessarily being followed.
matters pertaining to religion and Malay adat.
British took over the control of administration.
 DIFFERENCES BETWEEN RESIDENTIAL SYSTEM &
ADVISORY SYSTEM

Sultan lost their power and had to follow the Resident or Sultan remained powerful and had their own control over the
General Resident’s advice. land in matters like financial, administration etc.

The Sultan needed to practice the Resident’s advice since

they were ordinary members of Majlis Mesyuarat
Persekutuan and did not have power to repeal.

The government was mainly run by the British and locals The government was mainly run by the Malays.
were not given any post
TOWARDS INDEPENDENCE
The
The Straits The Federated The Treaty of
Unfederated
Settlements Malays States the Federation
Malay States

The British
The Federation The Malayan 1909
Military
of Malaya Union Agreement
Administration

The Federal
The Formation
Constitution
of Malaysia
1957
THE STRAITS SETTLEMENTS

1807 – Charter of Justice I

1826 – Charter of Justice II

1855 – Charter of Justice III

THE FEDERATED MALAY STATES
The major reason for the
intervention was commercial.
FEDERATED
MALAY STATES
It was in Perak that they first
intervened. In 1874
representatives of the British
Government and the Chief of
Perak concluded the Pangkor
Treaty.
In 1875 a British Resident
was sent to the State of
Selangor, followed by Negeri
Sembilan and Pahang.
THE UNFEDERATED MALAY STATES

The States which came to be called the "Unfederated Malay States" were Perlis, Kedah, Kelantan, Trengganu and
Johore. Unlike the Federated Malay States, these States had no special ties among themselves.

Kedah, Kelantan, Perlis and Trengganu came under British protection in 1909. In 1914, Johore came under the
Bristish protection.

UNFEDERATED MALAY STATES

 THE TREATY OF FEDERATION, 1895
It was the British who initiated the idea, and there were
several reasons for the move:
1. Lack of uniformity within the four protected States.
2. It was felt that a federation would bring greater efficiency
in the administration as officers could be interchangeable
between one State and another.
3. It was intended that the richer States with greater
resources should help in the development of the poorer
States.
 The Treaty of Federation contained only five articles:

1. The treaty constituted the four States of Perak,

Selangor, Negeri Sembilan and Pahang as "a Federation to
be known as the Protected Malay States to be
administered under the advice of the British Government".
2. The Rulers of the four States agreed to accept a British
officer, styled the Resident-General, as the agent and
representative of the British Government under the
Governor of the Straits Settlements, and to follow his
advice "in all matters of administration other than those
touching the Mohammedan Religion".
3. Article 3 of the Treaty, however, assured the Rulers that
the arrangements "did not imply that any one Ruler or Chief
shall exercise any power or authority" over any other State.

4. Article 5, the Rulers agreed to aid one another in time of

need in terms of men, money or other respects as the
British Government might advice.

5. The last limb of this article assured that nothing in the

treaty was intended to curtail any of the existing powers or
authority held by the Rulers in their respective States.
 The 1909 Agreement

It was concluded between the British Crown and

the Rulers of the Federated Malay States for the
establishment of a Federal Council.
The first Article established the Federal Council:
Articles 2-8 dealt with the membership and procedure of
the Council. It was composed of the High Commissioner,
the four Sultans, their respective Residents, the
Resident-General and four nominated members
representing business interests.
It is to be observed that Art. 9 purported to provide for
a division of powers between the Federal Council and the
State Councils. But a curious aspect of the drafting of
the agreement is that neither in this Article nor
anywhere else in the agreement was legislative power
expressly conferred on the Council.
Article 10 declared that the draft estimates of revenue
and expenditure should be considered by the Federal
Council but should immediately on publication be
communicated to the State Councils.

Article 11 (saving the existing powers and authority of the

Rulers) was identical with the concluding part of the
Treaty of Federation.
 British Military
Administration (1945)

To face the new situation in Malaya after

the Japanese occupation
 THE MALAYAN UNION
In 1946 two statements of British Government policy were published. The statements
proposed to establish a Malayan Union comprising the Federated Malay States, the
Unfederated Malay States and the Straits Settlements of Malacca and Penang. Singapore,
because of its large entrepot trade and its special economic and social interest, was to be
made a separate colony.

There was also the proposal to extend citizenship to all persons born in the Union or
Singapore.

Sir Harold MacMichael was sent to Malaya from London to get each of the Sultans to
agree to the proposals and to sign an agreement under which each of the Sultans granted
to the British Crown full power and jurisdiction within his State and territory.
 FEDERATION OF MALAYA & MERDEKA
The Federation of Malaya came into existence
The Head of the new
on 1 February 1948. The Constitution provided
Federal Government
for a federation consisting of the Malay States
was the High
and Malacca and Penang, with a strong central
Commissioner.
government.

There was also the

establishment of a
Conference of Rulers
consisting of all the
Rulers of the Malay
States.
To recommend further
constitutional change, the
first election to the Council
was held in July 1955.
THE FEDERAL CONSTITUTION 1957

In August 1955, it was

The Alliance Party had as agreed by the United
its campaign manifesto the Kingdom Government, the
attainment of complete Rulers and the Alliance
sovereignty - "Merdeka". Government that a
Following the 1955 conference should be held
election the desire for early in 1956 in London to
political independence discuss plans for further
grew stronger. constitutional
developments.
THE REID COMMISSION
The five members of the Commission:
1. Chairman - Lord Reid
2. Sir Ivor Jennings
3. Mr. Justice Malik
4. Mr. Justice Abdul Hamid
5. Sir William McKell
The five terms of reference for the Commission were:
1. the establishment of a strong central government with the
States and Settlements enjoying a measure of autonomy;
and
2. the safeguarding of the position and prestige of their
Highnesses as constitutional Rulers of their respective
States; and
3. a constitutional Yang Di-Pertuan Besar (Head of State) for
the Federation to be chosen from among their Highnesses
the Rulers; and
4. a common nationality for the whole of the Federation; and
5. the safeguarding of the special position of the Malays and
the legitimate interests of other communities.
THE REID REPORT
There were ten areas as regards to this report, namely:
1. Parliament and the Executive.
2. Division of the Legislative powers.
3. Judiciary.
4. Conference of Rulers.
5. Fundamental Rights.
6. Special Positions of the Malays.
7. Emergency Powers.
8. Citizenship.
9. The States.
10. The Settlements.
 PARLIAMENT
AND THE EXECUTIVE
There should be established a Federal
Parliament for the whole country consisting of
the Yang Di-Pertuan Agong, the Senate and the
House of Representatives.

The Parliament established, subject to

limitations contained in the Constitution, should
be free to pass laws relating to any subject
within the Federal sphere.

Bills passed by both Houses should require the

assent of the Yang Di-Pertuan Agong before it
can become law.
 THE DIVISIONS
OF THE LEGISLATIVE POWERS
There should be three lists, namely:

Federal List – external affairs, defence, internal security, civil and criminal law and procedure, the
administration of justice, and citizenship; and

Concurrent List - social welfare, scholarships, protection of wild life and town and country planning ; and

State List - Muslim law, land, forestry, local government, turtles and riverine fishing .
THE JUDICIARY

The Supreme Court should

continue to exist for the protection
of the rights.

A Judge could only be removed by

an order of the Yang Di-Pertuan
Agong on a recommendation of a
tribunal.
THE CONFERENCE OF RULERS
The members of the Conference of Rulers should include the
Governors of Malacca and Penang.

• There are four functions, namely:

• to elect the Yang Di-Pertuan Agong and his deputy.
• to consent or withhold consent to certain laws.
• to safeguard the interest of Malays.
• to act as a consultation body for the appointment of Chief
Justice and other important appointments in the government
administration.
THE FUNDAMENTAL RIGHTS

The Federal Constitution should

define and guarantee certain
fundamental rights and the Courts
should have the power and duty
of enforcing these rights.
 THE SPECIAL POSITIONS
OF THE MALAYS

The Commission was of the opinion that

the special privileges given to Malays
The matters connected with special
ought to continue since otherwise the
position of the Malays were special land
Malays would be at a serious and unfair
rights, preference in admission to public
disadvantage compared with other
service and in the granting of licences
communities. The protection of the
and permits to carry on certain
privileges of the Malays and the
occupations, and preferences in the
legitimate interests of other communities
award of scholarships and other forms
was made the responsibility of the Yang
of aid for educational purposes.
Di-Pertuan Agong acting on the advice
of the Cabinet.
 THE EMERGENCY POWERS
The matters relating to the emergency
should exist another one more year after
the independence day.
As for future threats and dangers, the
Federal Government should have the
power to make a Proclamation of
Emergency and thereafter to give direction
to any State Government or State Officer or
authority. In such a situation Parliament
should have the power to enact any
provision even though it infringes
fundamental rights or State rights.
 THE CITIZENSHIP

The Commission accepted the

There was provision for the
proposal of the Alliance Party and
acquisition of citizenship
accordingly recommended that all
by registration or
persons born in the Federation on
naturalization and
or after Merdeka Day should
provisions granting Malay
become citizens by operation of
preference or privileges.
law.
THE STATES

The Ruler became bound to accept the

advice of the Menteri Besar or Executive
Council in the same way as the Yang di-
Pertuan Agong is bound to accept the
advice of the Prime Minister or Cabinet.

The Menteri Besar became responsible to

the Council of State (to be called the "State
Legislative Assembly") and must cease to
hold office on ceasing to have the
confidence of that Assembly.
 THE SETTLEMENTS
The Settlements should cease to be part of Her Majesty’s
dominions and become autonomous States within the
Federation on Merdeka Day.

They should no longer be called Settlements, instead they should be

called the States of Penang and Malacca, and should have the same
status and powers as the other States in the Federation.
THE FORMATION OF MALAYSIA
On 27 May 1961 Tunku Abdul Rahman, the Prime Minister of the
Federation of Malaya suggested the formation of Malaysia - a
Federation comprising his country, Singapore, Sarawak, Brunei and
North Borneo.

Brunei initially showed an interest to join Malaysia, but subsequently

decided to back out. Singapore left Malaysia in 1965.
 THE CONSTITUTIONAL
DEVELOPMENTS IN SABAH
North Borneo became a Crown Colony in 1946.

The constitutional documents of North Borneo consisted

of:
1. The North Borneo Letters Patent 1946 to 1955;
2. The North Borneo Royal Instructions 1950; and
3. The North Borneo Order-in-Council 1950.
 THE CONSTITUTIONAL
DEVELOPMENTS IN SARAWAK
Sarawak was originally a dependency of Brunei and was ceded to James
Brooke in 1841.

In 1946 it was ceded to the Crown and became a Crown Colony.

The constitutional documents forming the legal basis of government were:

1. The Sarawak Letters Patent 1956;
2. The Sarawak Royal Instruction, 1956 (amended by the Sarawak
Additional Royal Instructions 1956); and
3. The Sarawak (Constitution) Order in Council 1956 (amended by the
Sarawak (Constitution) (Amendment) Order in Council 1956).
THE CONSTITUTIONAL DEVELOPMENTS IN
SINGAPORE
Singapore was also a Crown Colony, but was
independent in all its internal affairs. Britain had
control only in respect of defence and external
affairs.

Rendell Commission.
THE COBBOLD COMMISSION
Soon after the Tunku’s suggestion, the British Government, which by
this time already had the intention to give up Singapore, North Borneo
and Sarawak, began negotiations with the Malayan Government and
the representatives of the three territories with a view to their joining the
Federation.

A joint British-Malaya Commission under the chairmanship of Lord

Cobbold (hence the Commission was known as the Cobbold
Commission) was unanimously agreed that a Federation of Malaysia
was in the best interests of North Borneo and Sarawak.
THE INTER-GOVERNMENTAL COMMITTEE
The two Governments decided to establish an Inter-Governmental
Committee, on which the British, Malayan, North Borneo and
Sarawak Governments would be represented.

Its task was to work out the future constitutional arrangements,

including safeguards for the special interests of North Borneo and
Sarawak to cover such matters as religious freedom, education,
representation in the Federal Parliament, the position of the
indigenous races, control of immigration, citizenship and the State
Constitution.
THE BIRTH OF MALAYSIA
On 9 July 1963, the Governments of the
Federation of Malaya, United Kingdom, North
Borneo, Sarawak and Singapore signed the
Malaysia Agreement whereby Singapore,
Sarawak and North Borneo would federate with
the existing States of the Federation of Malaya
and the new federation so established would
be called Malaysia on 16 September 1963.
THE END