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MALAYSIAN LEGAL

SYSTEM

DEVELOPMENT OF
MALAYSIAN LEGAL
HISTORY
 THE LEGAL SYSTEM OF MALACCA SULTANATE -
LISTS OF CONTENTS
Malacca Law Digests, Portuguese & Dutch
administration in Malacca.
 RECEPTION OF ENGLISH LAW IN STRAITS
SETTLEMENTS, MALAY STATES & BORNEO.
 Sejarah Melayu book shows that the elements of
unwritten laws had existed in Malaya for 18
centuries in the forms of words titah, daulat,
murka, kurnia, anugerah and beta where these
words contained legal values.
 The book also provides that the Ruler was the
source of law & fountain of justice, where he
determined the penalties for heavy crimes eg
murder, robbery and theft. He was the highest
court where he had the power to grant pardon.
 In execution of sentences, it was often very
unfair. If an aristocrat was involved, the sentence
would be reduced or not imposed at all.
 To administer justice, several Ministers were
appointed to assist the Ruler. They played
important roles. Their powers would depend on
the Ruler. Sejarah Melayu showed that sometimes
the Ministers became more powerful than Sultan.
 The ministers were divided into several
categories of offices namely:
i.Bendahara – his power was equal to PM where
he acted as Sultan’s adviser & responsible for
carrying Sultan’s order.
ii.Temenggong – his power was equal to Chief
Police where he administered prisons & arrested
criminals.
iii. Laksamana – his power was similar to
Commander-in-Chief & responsible to execute
the sentence passed.
iv.Penghulu Bendahari – acted as Chief
Secretary of Bendahara & Treasurer.
v.Shahbandar – he was the harbour master.
There were 4 Shahbandar to supervise 4 main
groups of traders ie from China, Malay
Archipelago, Gujerat (West India) & South East
India.
vi.Mandulika – as the governor of isolated posts
who has civil & criminal jurisdiction.
 The spreading of Islam had made Malacca a
Muslim kingdom under Sultan Iskandar Shah &
his successors where by the end of 15th century,
Malacca had become a great power in South-
East Asia.
 The rise of Malacca as Muslim kingdom marks
the end of political control and cultural
influence by Hindu & Buddhist powers.
 Islam had freed the local & foreign merchants
from the oppressive stratification of Hinduism &
the absolute power of Hindu ruler.
 The Malay society & laws were influenced by
thoughts & trends from all Muslim world.
 Indian, Muslim & Persian influences can be seen
in Malay society & laws.
 Thus the law followed in Malacca was Muslim
law which had absorbed some elements of
Malay customs.
 In its heyday, the empire of Malacca covered
Pahang, Siak, Kampar, Rokan, Indragiri,
Terengganu, Johore, Rhio-Linggi Archielago,
Patani & Kedah.
 At the end of its heyday, there were an important
digest of law known as Undang-undang Melaka,
which contained a mixture of relics of Hindu law
overlaid with Muslim law and Malay customs.
 Undang-undang Melaka (Hukum Kanun Melaka)
was a hybrid text where it composed of several
separate texts which were bound together as
one manuscript. Its contents were not written in
the same period but went through a process of
continual growth. It consisted of 6 different texts
namely :
i. The Undang-undang Melaka proper
ii. The Maritime Law
iii. Muslim Marriage Law
iv. Muslim Law of Sale & Procedure
v. The Undang-Undang Negeri
vi. The Undang-Undang Johor.
However, only 2 important texts will be focused
ie the first two texts above.
 Basic characteristics of Undang-Undang
Melaka :
1. It has 44 chapters altogether.
2. Its application was “in all large lands and
by all great rulers and their viziers and
(applied) on the customs in the dependant
areas and villages”.
3. It was based on patriarchal law of Adat
Temenggung and Islamic law from Syafie
school of law.
4. It provided responsibilities of Rulers +
ministers, prohibitions amongst society,
penalties for civil & criminal offences.
5.It had several sections on family law which were
translated from Islamic family law.
6. It contained penalties both under Islamic law
and local customary law for most offences.
Penalties for criminal offences under Islamic law
(which is heavier) may be avoided by choosing
penalty under adat. 18 sections relating to
penalties under Islamic law. Eg: Sec. 12.2 stated
that a man who rapes a girl shall be fined and
made to marry her (under Malay adat) while
according to Islamic law, the offender shall be
either stoned to death or given 80 lashes.
7. The judges had wide discretionary power to
impose the most appropriate sentence.
8. It covered a wide range of civil & criminal
matters but all were mixed up and improperly
categorized. It had no clear divisions between
constitutional law, criminal law and civil law. It
jumbles regulations for etiquette, criminal laws,
jurisdiction of the ruler and ministers, the law of
slaves, the law of libel, the law of contract
relating to hire of slaves and animals and the
breach of betrothal agreements.. and penalties
for stealing slaves.
9. It contained some aspects of Islamic law such as
validity of marriage, marriage witnesses, talaq,
property claim, trusteeship, performance of
prayer, taking oath, etc.
10. No clear separation between secular and
religious matters.
11. It preserved the concept of kingship based on
Hindu system. Ruler was known as Raja. Together
with his lineage he had special status. He was
the head of government + had absolute power.
Enjoyed special rights + privileges such as
exclusive use of yellow cloth, royal language
(bahasa dalam) and royal commands
(menjunjung duli).
2. Basic characteristics of Undang-Undang Laut
Melaka :
1.Comprises of 25 chapters.
2. Contained rules + regulations relating maritime
matters. Eg: rules of sea voyage and trade,
jurisdiction of Admiral and penalties for
criminal offences.
3. Based on Adat Temenggung + Islamic law of
Syafie school.
4. Only 1 section deals with Islamic penalty.
5. Compiled under consultation of captains fr.
Bugis & Macassar.
Therefore :
1.Both digests were compilations of Malay
customary law with relics of Hindu law overlaid
by Islamic law.
2.Both digests had codified Adat Temenggung for
the 1st time.
3.Undang-Undang Melaka has a stronger Islamic
law influence than Undang-undang Laut
Melaka.
4.The digests had influenced a lot on the laws of
other states like Laws of Pahang, Laws of
Kedah, Laws of Johore & 99 Laws of Perak.
PORTUGUESE
ADMINISTRATION
PORTUGUESE
ADMINISTRATION
 The 1st European who came to Malaysia.
 They occupied Malacca from 1511-1641.
 Their army was headed by Alfonso de
Albuquerque.
 They established a military & civil
administration.
 Malacca was governed by a Portuguese
Governor who had wide authority over all
local people and foreigners.
 In civil matters : Governor was assisted by
a Council which consisted of Ovidor
(Chief Justice), Viador, Bishop/his deputy
PORTUGUESE
ADMINISTRATION
 In criminal matters : the Ovidor pronounced
sentences on approval by Governor while the
Magistrates pronounced sentences on
approval from Ovidor. However important
cases will be decided by Governor himself.
 In military affairs : Governor had to consult
Captain-General of War + Sergeant Major.
 Leading citizens were appointed as
Magistrates with civil + criminal jurisdiction.
Appeals must be brought to Chief Justice.
 There was no separation between judiciary
and executive.
PORTUGUESE
ADMINISTRATION
CIVIL • Governor assisted by Council
• Council consisting of Ovidor, Viador,
MATTERS Bishop/Deputy Bishop & State
Secretary

• Governor decided big cases


CRIMINAL • Sentence passed by Ovidor was
subject to approval by Governor
MATTERS • Sentence passed by Magistrate was
subject to approval by Ovidor

MILITARY • Governor had to consult Captain


MATTERS General of War & Sergeant Major
PORTUGUESE
ADMINISTRATION
 Bendahara was appointed to deal with
matters of foreign Asiatics in Malacca.
 Temenggung was appointed to handle
rural districts like Naning + Linggi.
 Shahbandar was responsible for all
Portuguese traders.
 Portuguese justice was no less corrupt
than Portuguese administration. Words like
“torture”, “dungeon” had crept into
Bahasa Malaysia.
PORTUGUESE
ADMINISTRATION
 Ovidor had the following jurisdictions :
1. Civil : try cases involving max 200
crosado.
2. Criminal : judgment made must get
confirmation fr Governor.
 Occupation of Portuguese did not
immediately destroy Malacca Sultanate.
When Malacca fell, ruling Malay dynasty
retreated into hinterland establishing new
regimes in Johore, Perak and Pahang.
 It is doubtful whether the Portuguese law
PORTUGUESE
ADMINISTRATION
 However, scholars in general agreed that
local people continued to practise Islamic
law + Malay customs. Based on
contemporary Malaccan society, it is
probably true that Portuguese law had
little impact on the Malacca legal system
because the law was then quickly
replaced by the British models/laws.
DUTCH
ADMINISTRATION
DUTCH ADMINISTRATION
 Occupied Malacca in 1641 after
Portuguese.
 Governed by a Governor who had
supreme authority over all people in all
matters.
 Assisted by Council – consisted of
Collector, Fiscal, Mayor, Upper Merchant
and Secretary.
 Council of Justice established to
administer justice.
 Special Council established to manage
ecclesiastical affairs.
DUTCH ADMINISTRATION
 Europeans were governed by Dutch laws
but it was uncertain what law applied to
the local + other Asian people in
Malacca.
 Dutch motive in capturing Malacca was
purely business/trading. Never attempted
to extend political authority beyond city
of Malacca and Naning. Meanwhile
Dutch practice in Batavia was to leave
local people to their own laws.
DUTCH ADMINISTRATION
 Thus,the Dutch was assumed to have left
people of Malacca to their own customs
and laws while the Dutch themselves
were governed by Dutch laws. This is
supported by the case of Sahrip v.
Mitchell where Sir Benson Maxwell C.J.
noted :
“The Portuguese while they held Malacca
and after them the Dutch, left the Malay
custom in force. That it was in force when
this Settlement was ceded to the Crown
appears to be beyond dispute…”
Some questions…
 The difference between administration of
Portuguese and Dutch in Malacca ?
 The similarities between administration of
Portuguese and Dutch in Malacca ?
 The laws which governed Malacca during
Portuguese?
 The laws which governed Malacca during
Dutch?
RECEPTION OF
ENGLISH LAW
IN STRAITS
SETTLEMENTS
STRAITS SETTLEMENTS

PENAN
G

MALA SINGAPO
CCA RE
 British early relation with Malaysia in trading
PENANG
ventures became mixed political + commercial
connection from 1684-1762. Thus need to
establish commercial port in Straits of Malacca.
Captain Light proposed Penang. 1786-
negotiations with Sultan Kedah for cession.
 Occupation in Penang – through agreement.
Renamed “Prince of Wales Island”. According to
Charter of Justice 1807, when first occupied by
British, Penang was wholly uninhabited.
 However Sir Benson Maxwell disagreed. He said
that Penang was inhabited by 4 Malay families.
Old register of survey dated 1795 mentions a
large Malay village about 18 acres on south
bank of Penang river & that Penang had been
occupied for 90 years. Also mentioned another
smaller settlement on further south. Thus, Penang
was not a virgin country at the time of British
occupation.
 Since Penang belonged to Kedah, it is presumed
that Kedah laws which were based on adat
Temenggung were applied.
 During early period of British rule, legal chaos
occurred in Penang : Francis Light did not
introduce English law. He was only ordered to
maintain good order as well as he can by
imprisonment/other common punishments for
offences committed by local people. But for
British people who committed offences at
Penang, they will be sent to Bengal for trial.
No clear seperation of power
bet. executive authority and
judiciary.
Governor-General in Council
was not vested with power to
establish courts to hear cases
(no courts in Penang). However,
certain Regulations (on criminal
law) for preserving peace were
passed.
 Justice was administered in small civil cases
among various local people (Malays, Indians,
Burmese & Chinese) by local headmen or
captain of communities nominated by British
Superintendent. Appeals will go to European
Magistrates who tried more important civil cases.
It was assumed that the local laws of community
was applied.
 Local headmen also responsible for keeping
Registers of marriages, births, slaves and sales of
land & houses.
At that time, the judicial
hierarchy consisted of 3 officials
: Superintendent, Magistrate &
Second Assistant. Decisions by
Magistrates had to be submitted
to Superintendent for approval
b4 it can be executed.
Superintendent had no power
to carry out death sentence
without approval from
Governor-General.
 In 1800 under a statute - Penang received a
regular form of government. It constituted a
Lieutenant-Governorship under Bengal admin.
He was instructed to make regulations/rules
based on principles that : “the laws of different
people & tribes..tempered by such parts of
British law as are of universal application being
founded on principles of natural justice shall
constitute the rules of decisions in courts”.
 PALANGEE v. TYE ANG : there were no civil /
municipal laws in force in Penang other than
Regulation of 1794 and the only law in force was
the law of nature.
 Sir Benson Maxwell in REGINA v. WILLANS
described the legal chaos situation in Penang
within period of 1786-1807 : “…that for the first 20
years, no body of known law was recognized as
law of Penang. English law was not regarded as
the lex loci nor as personal law of English people.
English law was not in force for punishment of
crime. There was no civil or criminal law. The law
of nature was the only law.”
 Legal chaos prevailed until CHARTER OF JUSTICE
(COJ) was granted in 1807. The COJ 1807
marked the beginning of statutory introduction
of English law.
 Purpose of COJ 1807 : to introduce English law to
Penang as it stood in 1807 in England subject to
local inhabitants and situations. It contained
provisions for government of Penang +
administration of justice.
 Case to support - KAMOO v. BASSETT where the
court held : It was accepted that the Charter
introduced the laws of England as it existed in
1807 into Penang.
 The COJ 1807 established Court of Judicature of
Prince of Wales’ Island in Penang. The court has
jurisdiction : (a) as superior courts in England in
deciding civil + criminal cases and (b) as an
Ecclesiastical court in dealing with ecclesiastical
matters. The jurisdiction was to be exercised
subject to local conditions + inhabitants.
 Under COJ 1807, English law was not only
applied to future cases but also to the cases
occurred b4 1807 which were pending trial.
 It means that the COJ 1807 applied
retrospectively to civil injuries wh had been
sustained & crimes wh had been committed b4
the Charter 1807 came into force. The object of
the Charter 1807 was to protect local inhabitants
from oppression and injustice.
 In ONG CHENG NEO v. YEAP CHEAH NEO : “…the
law of England must be taken to be the law of
the land in so far as it was applicable to the
circumstances and modified in its application.
 In FATIMAH v. LOGAN the court held that since
the lex loci of Penang was English law, the
validity of the will must be determined acc to
English law.
 In the case of IN THE GOODS OF ABDULLAH : that
since COJ 1807 had introduced the law of
England into Penang, a Muslim could (by will)
dispose of all his property although such was
contrary to Islamic law.
 In REGINA v. WILLANS the court ruled that COJ
1807 directed that court must in civil and criminal
cases, give & pass judgment/sentence
according to law of England.
 CHARTER OF JUSTICE 1826 (COJ 1826) was
granted on 27th Nov 1826 to the Straits Settlements
(At this time, Penang, Malacca & Singapore had
formed SS). It contained same provisions as COJ
1807.
 COJ 1826 introduced English law as it existed in
1826 in England to the 3 states of SS subject to
modifications to suit the local conditions in SS.
 COJ 1826 extended jurisdiction of court to cover
Malacca and Singapore. New court was named
“The Court of Judicature of Prince of Wales’
Island, Singapore and Malacca”.
 REGINA v. WILLANS : that the 2nd COJ
introduced law of England as it existed on that
date, not only to Malacca and Singapore but
also to Penang in so far as conditions of the
place & persons shall admit.
• CHARTER OF JUSTICE 1855 (COJ
1855) was granted on 12th August 1855 to SS.
 The purpose of COJ 1855 was only to re-organize
the existing courts. It did not introduce English
law to the SS.
 Additional Recorder appointed for Singapore.
Court had 2 divisions : one having jurisdiction
over Penang and the other having jurisdiction
over Singapore & Malacca.
 Britishobtained permanent possession in 1824
MALACCA
under Anglo-Dutch Treaty. At the time, the law
applicable was Malay adat, Muslim law,
customary law of other local inhabitants & some
Dutch laws.
 Sir Benson Maxwell CJ said that Portuguese &
Dutch had left Malay customary law in force
and this law was still in force when Malacca was
ceded to British.
 CHARTER OF JUSTICE 1826 (COJ 1826) was
granted on 27th Nov 1826 to the Straits
Settlements (At this time, Penang, Malacca &
Singapore had formed SS). It contained same
provisions as COJ 1807.
 COJ 1826 introduced English law as it existed in
1826 in England to the 3 states of SS including
Malacca subject to modifications to suit the
local conditions in SS.
Position of Dutch law in
Malacca : The case of RODYK v.
WILLIAMSON provides that the
law of England had been
introduced by the Charter 1826
so as to supersede the law of
Holland. (Dutch law was
abrogated and replaced by
English law).
 Position
of other existing laws : In the case of IN
THE GOODS OF ABDULLAH the court held : the
law of England introduced into SS by COJ 1826
had superseded previous law. Thus, any local
people who wish to leave their prop. by will in
acc. with their personal laws must expressly
indicate their intention to construe their wills acc.
to their personal laws. Since English law was
applied, the will (to dispose of the whole prop. of
a Muslim) was valid.
 However, position of Malay customary law in
Malacca after COJ 1826 granted had not been
affected (still recognized & applied). Refer to
case of SAHRIP v. MITCHELL where court
recognized Malay custom that the Ruler was the
owner of the soil and any person who wish to
occupy forest or wasteland had to pay 1/10 of
the proceeds of land to him.
• CHARTER OF JUSTICE 1855 (COJ
1855) was granted on 12th August 1855 to SS.
 The purpose of COJ 1855 was only to re-
organize the existing courts. It did not introduce
English law to the SS.
 Additional Recorder was appointed for
Singapore. The court now had 2 divisions : one
having jurisdiction over Penang and the other
having jurisdiction over Singapore & Malacca.
 1819 - Stamford Raffles arrived. As the 1st
SINGAPORE
Resident, he administered justice with assistance
of Sultan & Temenggong of Johore.
 He framed a number of Regulations inter-alia that
in cases relating to religious ceremonies,
marriages and inheritance, the laws+customs of
Malays will be respected so long as they are not
contrary to justice & humanity. But in other cases,
English law will be enforced with consideration to
local customs.
 Captains+Penghulus were appointed to deal
with customs of Asiatic races in Singapore.
Whereas Europeans were subjected to jurisdiction
of court in Calcutta.
 Legal chaos occurred : administrators (if trained)
were English-trained with little/no knowledge of
Malay custom, Hindu, Chinese or Islamic law.
Raffles appointed 12 Magistrates from British
merchants (no formal legal training). A set of laws
based on English principles promulgated but
Magistrates had wide discretionary powers in
implementing the law. 1823 - India sent only 2
Regulations and it was insufficient.
 After Singapore joined SS in 1826, it was
governed by COJ 1826. English law was
applied as it stood in 1826 with
modification. Jurisdiction of Court of
Judicature was extended to Singapore.
 In ISAAC PENHAS v. TAN SOO ENG the
issue was whether marriage bet. Jew &
Chinese was valid acc. to laws of
Singapore. Held by court that the
common law of England was in force with
modification to prevent hardship upon
local inhabitants. Thus, applying English
law, court decided that the marriage was
valid.
 With the increasing population and commercial
activities in Singapore, cases increased. Thus, it
was necessary to have a professional judge
stationed in Singapore. At this moment,
administration of justice was unsatisfactory
because there was only 1 professional judge
(called “Recorder”) who was assisted by lay
judges. Moreover, the headquarter was located
in Penang and the Recorder visited Singapore &
Malacca twice a year only. This situation had led
to the granting of 3rd COJ.
• CHARTER OF JUSTICE 1855 (COJ
1855) was granted on 12th August 1855 to SS.
 The purpose of COJ 1855 was only to re-
organize the existing courts. It did not introduce
English law to the SS.
 Additional Recorder appointed for Singapore.
Court had 2 divisions : one having jurisdiction
over Penang and the other having jurisdiction
over Singapore & Malacca.
SECTION 6 OF
CIVIL LAW
ORDINANCE 1878
Section 6 of Civil Law Ordinance 1878
 Final step in reception of English law in SS where
English commercial law was formally introduced
into SS.
 The provision reads:

In all questions.. which arise in Malacca, Penang, Sabah


and Sarawak with respect to law of partnerships,
corporations, banks & banking, principal & agents, carriers
by land & sea, marine insurance, life & fire insurance and
mercantile law generally, the law to be administered shall
be the same as would be administered in England…,
unless other provision is/shall be made by any written law.”
(currently re-enacted in Sec. 5(2) of Civil Law Act 1956 &
still applicable)
Some questions…
 How English law was applied in SS ?
 What are the effects of Civil Law
Ordinance 1878 ?
 What were the purposes of the three
COJs ?
 What are the cases that have to be
remembered ?
RECEPTION OF
ENGLISH LAW IN
MALAY STATES
FEDERATED UNFEDERATED
MALAY MALAY
STATES STATES

RECEPTION
OF ENGLISH
LAW IN
MALAY STATES
THE LAW B4 BRITISH INTERVENTION
 Adat Perpatih (in most area of N9+Naning) and
Adat Temenggung (in other states). Most of it
unwritten.
 Muslim law (at first adopted in purely religious
matters) gradually developed to other matters.
Muslim law of marriage and divorce was adopted
by both adat. Some Islamic influence also existed
in Adat Temenggung relating to criminal matters.
 While the law governing property and succession
was Malay customary law. No Islamic influence.
 Thus, at the time of British intervention in Malay
States, the law applicable were Malay customary
law + Islamic law.
 Law applicable in Malay States was
summarized in the case of SHEIKH ABDUL
LATIF v. SHAIK ELIAS BUX that b4 the 1st
treaty between British and Sultan, the only
law applicable to the Malays was
Mohammedan laws which were modified
by local customs. Thus, the law at that time
were Islamic law + Malay customs.
 In RAMAH v. LATON the court held that
Muslim law was not foreign law but the
local law and the law of land in Malay
States.
THE LAW DURING BRITISH INTERVENTION
 Customary laws + Islamic law applied.
 Early days of British – faced many problems. Had
to deal with slavery matters, forced labour and
land tenure. Eg 1: in N9 tenure matters were
governed by Customary Tenure Enactment 1909.
It provided restriction on dealings with ancestral
lands. It also distinguished bet. “customary” and
“non-customary” lands.
 Perak accepted British authority in 1874,
Selangor in 1875, Pahang in 1888 and N9 in
1889. British introduced Residential system
where each ruler had to accept British
Resident’s advice in all matters except
relating to Malay customs & religion.
 1895 : the 4 states united to form Federated
Malay States under administration of a
Resident-General.
 Johore (differed from FMS) accepted British
protection in 1914. By that time, it was a fully
organized state with written constitution,
constitutional ruler and complete
machinery of administration.
 While Kedah, Perlis, Terengganu & Kelantan
were freed from Siamese influence under Anglo-
Siamese Treaty 1909 and agreed to have British
Advisers.
 Justice was dispensed by civil servants not
necessarily legally trained. Thus – administration
of law (including decided cases) was often
criticized.
FEDERATED MALAY STATES :
 B4 1896 : appeals in each FMS laid with Resident’s
Court with final appeal to Sultan-in-Council.
Magistrates followed Indian law & procedures.
Eg. in Selangor, all cases have to be determined
according to Straits Settlements Penal Code &
Evidence Ordinance and Indian Civil Proc. Code,
Specific Relief Act & Court Fees Act but subject
to local law + established customs.
 After 1896 : Resident’s Court & Sultan-in-Council
were abolished & replaced by Judicial
Commissioner as final court of appeal..
 Adatcriminal law was replaced by a penal
code based on Indian model ie. Criminal
Procedure Code and Penal Code. Contract
enactments based on Indian Contract Act was
passed.
 Also
existed several local codes eg. Labour
Code, Mining Code, Land Enactments, etc.
 The 4 states (FMS) were only protectorates and
never become English territory. They are not
British colonies but sovereign states. Thus the
prevailing law in FMS was Malay customary law
(with influence of Muslim law).
 No statutory reception of English law in
FMS until 1937. Under FMS Civil Law
Enactment 1937, application of common
law & equity as administered in England
at the commencement of this Enactment
(other than any modifications of such law
/ any such rules enacted by statute) shall
be in force.
 However, English law did apply within FMS
before 1937 to a surprising extent.
Sometimes there was an over reliance on
English law. For example, refer to case of :
LEONARD v. NACHIAPPA CHETTY where judge
had to remind counsel to take local law into
consideration. B4 applying English cases,
counsel has to examine local law and
ascertain in what respect it resembles /
differs from English law.
In HAJI ABDUL RAHMAN v. MOHAMED
HASSAN the Privy Council reminded the
judges where they have been too much
swayed by the doctrines of English equity.
They did not pay enough attention to the
fact that they were dealing with a totally
different land law in FMS which contained in
a codifying enactment.
In fact, English rules of equity was applied
by courts. For example :
i. IN RE YAP KWAN SENG’S WILL the court
held that rule against perpetuities applied
in Selangor.
ii. MOTOR EMPORIUM v. ARUMUGAM that
although English rules of equity have no
application in FMS, Sec.49 of Courts
Enactment (Selangor) gives the Supreme
Court the widest jurisdiction in all civil
cases where it may apply English rules of
equity by reason that it is based on
principle of natural justice.
English law of torts was also applied through
courts decision :
i. MOHAMED GUNNY v. VADWANG KUTI
provides that although no code of civil
wrong had ever been passed, the court had
always followed the law of England in
matters of tort.
ii. GOVERNMENT OF PERAK v. ADAMS held
similar view.
 Thus, the Civil Law Enactment 1937 (provided for
application of English common law & equity in
FMS) did not bring any big changes in the
situation. It merely gave to the courts a statutory
authority to do what they had already been
doing b4 the passing of the enactment. This
enactment was extended to UMFS by Civil Law
(Extension) Ordinance 1951 after joining into
Federation of Malaya.
UNFEDERATED MALAY STATES
 Also protectorates.
 Unlike FMS, UFMS never had statutory
reception of English law though in 1951
FMS Civil Law Enactment was extended
to UFMS.
 Similar to FMS, there was unofficial
reception of English law through 1.
legislation based on English models. 2.
decisions of courts (English trained bench
& bar).
 Although FMS Civil Law Enactment
extended to UFMS by Civil Law (Extension)
Ordinance 1951, no change – with
regards to application of English law until
1956.
 1956 : both legislation were replaced by
Civil Law Ordinance 1956.
It did not effect application of personal
law of various religions and races. Muslims
had enactments for administration of
Islamic law.
SOVEREIGNTY OF
MALAY RULERS /
MALAY STATES
 FMS – Residential System : Rulers to obtain
Resident’s advice in all matters except in
religious & customary matters.
 British Residents gave advice to set up courts. B4
1896 – appeals in FMS went to Resident’s Court
with final appeal to Sultan-in-Council. After 1896
– Judicial Commissioner’s Regulations & Orders
in Council came into force : abolished
Resident’s Court & Sultan-in-Council. Introduced
Judicial Commissioner as final court of appeal.
Thus Sultan had lost power in judiciary.
 UFMS – British expanded influences & power after
English-Siamese Treaty 1909. Appointed British
Adviser to each state.
 Unlike SS – Malay States were theoretically
independent under their respective Rulers. They
had sovereignty – entitled to immunity from legal
proceedings – recognised as independent
states.
 Malay States possessed sovereign status during
British period – British protectorates - placed
under protection of England – never been
colonies (either ceded or settled) like Straits
Settlements
 Duff Development v The Government of Kelantan
& Anor : English court had no jurisdiction over
Kelantan state. The certificate from Colonial
Office stated that Kelantan was an independent
state & Sultan was a sovereign monarch.
Kelantan has
immunity from execution of its property,
unless there has been a waiver.
 Pahang Consolidated Co. Ltd. v The State
of Pahang : Pahang was constituent
member of the four sovereign FMS. Thus
no suit / proceeding could be made
against state of Pahang.
 Mighell v Sultan of Johore : English courts
have no jurisdiction over Sultan coz he
was independent foreign sovereign, unless
he agreed to be tried.
Although Sultan had been residing in England &
entered into contract, it did not mean that he
agreed to be tried by the court/ made him liable
to be sued for breach of contract. The certificate
from Colonial Office on the status of Sultan was
conclusive & binding on court.
Some questions…
 How English law become applicable in
Malay States? In what ways?
 What are the effects of British
administration / application of English law
to the Malay States ?
 What was the status of Malay Rulers
during the period?
RECEPTION OF
ENGLISH LAW IN
SABAH & SARAWAK
SARAWAK
 1841 : James Brooke appointed as Rajah/Governor.
Marked the beginning of Brooke’s family in Sarawak
for more than a century.
 Brooke’s problems in early days :1. to restore law &
order 2. to provide for proper administration 3. to
suppress piracy.
 Brooke’s actions : 1. promulgated a set of 8 laws
published in 1843 providing punishment for crimes
like murder, robbery etc. and ensuring freedom of
trade & labour. 2. set up administrative machinery
based on principle of respect for customs of local
people + frequent consultation with indigenous
chiefs.
 Thus, Brooke had brought the 1st practice
of English law.
 Unwritten law consists mostly of laws &
customs of races indigenous to Sarawak.
In KHO LENG GUAN v. KHO ENG GUAN it
was held that the unwritten laws were
Mohammedan, Dayak + other native
customs concerning eg. marriage and
inheritance, adultery etc as understood
by Malays and Dayaks.
 Some native customs had been codified.
Eg. codifications under Native Customary
Laws Ordinance – enacted in 1955 –
providing amendment of codes of native
customs which had been approved by
Rajah. Resulted : Undang-Undang Melayu
(the only codification of Muslim law +
Malay custom) and Tusun Tunggu.
 Chinese : Rajah constituted Chinese
Court in Kuching for deciding cases of
marriage, divorce, property acc to
Chinese customs.
Chinese customary law never been
administered as part of native custom.
1919 : no Magistrate was appointed after
the date. Assumed the court was
abolished. Under Courts Ordinance 1951
HC has jurisdiction to grant divorce to
persons married acc to Chinese custom.
 Laws of Sarawak at first took the form of
Orders issued by Rajah. The law derived
mostly from legislation of Singapore &
Federation of Malaya. Thus, indirectly from
Indian & UK laws.
 Indian Penal Code applied by Courts Order
1922. However, in 1934 Penal Code was
enacted.
 Several Orders issued by Rajah eg. Order P-6
(Partnership), Order 0-2 (Oaths & Affirmations),
etc.
 1928 : Order L-4 (Law of Sarawak) providing
a general rule in the absence of specific
legislation. Regarded as 1st statutory
reception of English law in Sarawak.

Sec.2 of the Order reads : “The law of


England in so far as it is not modified by
Order and other enactments issued by His
Highness the Raja of Sarawak or with his
authority, and in so far as it is applicable to
Sarawak having regard to native customs
and local conditions, shall be the law of
Sarawak”.
In LIU KUI TZE v. LEE SHAK LIAN the court held that
under the 1928 Order L-4 (Law of Sarawak),
English law has to be applied to Sarawak in so far
as it is not modified by local statutes and subject
to native customs & local conditions prevailing in
Sarawak. This Order recognized and was the
authority to apply Chinese customary law in such
matter as marriage & divorce. In fact, the
Resident’s Courts did grant divorces to persons
married under Chinese custom.
 Reception of English law was formalized by
Sarawak Application of Law Ordinance
1949. Provides that common law of England
& doctrines of equity together with statutes
of general application, as administered/in
force in England at the commencement of
the Ordinance, shall be the law in force in
Sarawak with proviso that those laws shall
only be applied so far as the circumstances
of Sarawak and its inhabitants permit.
Purpose of Ordinance : to make better
provision for application of English common
law, equity and statutes in Sarawak. Sec. 3
allowed English statutes (passed in England
after the passing of the Ordinance) to be
KHO LENG • Orders and other written laws
GUAN v. enacted by/with authority of His
Highness the Rajah.
KHO ENG • English law in so far as it is not
GUAN held modified by the law comprised in (1)
: the legal and so far as it is applicable to
Sarawak, having regard to native
sources of customs & local conditions.
law of • Certain laws & customs of races
indigenous to Sarawak including
Sarawak Islamic law and other native
were three laws/customs in so far as they are
reasonable.
fold :
 The3rd source of law above includes Islamic law,
Dayak custom, other customs concerning
marriage & inheritance. Customs of other races
are also followed to some extent. Issue : whether
certain custom of Chinese is admitted as part of
the law of Sarawak.
In CHAN BEE NEO v. EE SIOK CHOW the
court said that the effect of Law of
Sarawak Ordinance is that the law of
England (so far as it is not modified by
Sarawak Ordinances and so far as it is
applicable to native customs & local
conditions), is the law of Sarawak. Thus,
native law & custom will be respected
and in proper case must be applied. The
term “native law & custom” means
custom of natives of Sarawak & they
must belong to one of races considered
indigenous to the Colony & enumerated
in the Schedule to the Interpretation
Ordinance.
 Since Chinese were not indigenous to Sarawak
thus, Chinese customary law was not “native
custom”.
 Section 2 of Interpretation & General Clauses
Ordinance 1933 limits the term “native” to cover
only those races which are prescribed in the
schedule which does not include Chinese.
 S.M.MAHADAR v. CHEE – The Malay Undang-
Undang of Sarawak must be applied to settle
disputes amongst Muslims of Sarawak concerning
status of a child. English law was not applicable.
 Previously
SABAH
known as North Borneo. 1881 :
British North Borneo (Chartered) Co. was
formed by Royal Charter to take over
administration of Sabah as a result of
series of treaties bet. Brunei Sultans &
partnership of Overbeck and Dent.
 1888 : By virtue of agreement – Sabah &
Sarawak became British protectorates.
Both remained under private
administration until ceded to British Crown
in 1946 when they became Crown
colonies.
 At the time the Company ruled Sabah –
there was a body of customs by which the
headman of each village administered
justice. British felt that those native
customs should be codified.
 Thus, Mr. Wooley carried out the 1st
collection in a series of Native Affairs
Bulletin by setting out in detail certain
features of customary laws of Dusun,
Murut & Kwijan.
 The co. was required to abolish slavery,
administer justice ( with due regard to native
custom) and not to interfere with religion of
inhabitants.
 No statutory reception of English law until
relatively late. Civil Law Ordinance
introduced in 1938. It provided for the
application of common law, equity & statutes
of general application.
 Reception of English law was formalized by
North Borneo Application of Laws Ordinance
1951.
 Other sources of written laws are similar to
Sarawak which derived mostly from legislation in
force in SS and Malay States based on India &
UK. Eg: Penal Codes & Criminal Procedure
Codes.
 Court system was reorganized by Sarawak,
Sabah and Brunei (Courts) Order in Council 1951.
Provisions made for setting up Supreme Court of
Sarawak, Sabah and Brunei comprising COA
and HC. Supreme Court came to an end in 1963
when Sabah & Sarawak became part of
Malaysia.
 Thus, concluded that English law was introduced
in Sabah through legislation and judiciary.
INDEPENDENCE &
ITS
CONSEQUENCES

MAJLIS MENANDATANGANI PERJANJIAN KEMERDEKAAN


DI LANCASTER HOUSE, LONDON PADA 1956
JAPANESE INVASION

 Landed in Peninsula Malaysia on 8th


December 1941, in Kuching on 31st
December 1941 and Sabah on 16th
January 1942.
 After the surrender of Japanese on 14th
August 1945, British re-established their
authority as British Military Administration.
1st April 1946 : Incorporated the SS (except
Singapore), FMS and UFMS into Malayan
Union. Singapore, Sabah & Sarawak
became a Crown colony. However MU
(reducing Malay states to colony status)
 1948 INDEPENDENCE
: Commencement of communist
insurgency called “Emergency”. Although
affected constitutional development, it did
not prevent progress towards self-
government as agreed in Federation of
Malaya Agreement 1948.
 1951 : the “quasi-ministerial” system was
introduced to prepare nominated members
of Federal Legislative Council.
 1955 : 1st federal election was held. The
alliance party of UMNO, MCA and MIC led by
Tunku Abdul Rahman won 51 of 52 seats.
Appointed as 1st Chief Minister of the
Federation.
 1956 : He led a delegation to London to
negotiate for independence.
 At London Conference – basic principles
for granting of independence agreed.
Reid Commission (independent
Constitutional Commission) appointed to
draw up constitution. Reid Commission’s
proposals (as amended) became
constitution for federation which
proclaimed its independence on 31st
August 1957.
FORMATION OF MALAYSIA
 1961 : Proposed by Tunku for a bigger
federation comprising Malaya,
Singapore, Brunei, Sabah and Sarawak.
Proposal raised doubts in Sabah &
Sarawak. Invoked protests fr. Indonesia &
Philippines.
 1962 : Cobbold Commission ( joint Anglo-
Malayan Commission) dispatched to
Borneo to ascertain the people’s view.
Majority supported the proposed
federation.
 July 1963 : Malaya, UK, Singapore, Sabah
and Sarawak signed the Malaysia
Agreement in London.
 16th September 1963 : Malaysia was
formed.
 Malaysia had difficult start – Indonesia &
Philippines continued to oppose. They
did not recognize the new federation.
Indonesia commenced Konfrantasi and
Ganyang Malaysia campaign.
 1965 : Singapore left Malaysia and
became independent republic.
GOVERNING LAWS DURING & AFTER
MALAYSIA’S FORMATION
 During formation in 1963 : laws in force – Civil
Law Ordinance 1956 (Federation of Malaya),
Sarawak Application of Laws Ordinance 1949
and Sabah Application of Laws Ordinance 1951.
 Due to the formation, need to harmonize the
laws. Civil Law Ordinance 1956 was extended to
Sabah & Sarawak by Civil Law Ordinance
(Extension) Order 1971. It came into force in all
territories on 1st April 1972. Revised as Civil Law
Act, 1956 (Revised 1972) and applicable until
now. This Act is substantially similar to the various
Ordinances it superseded.
 Application of English law throughout Malaysia is
subject to 2 limitations :
1. It is applicable only in the absence of local
statutes on the particular subjects.
2. Only part of English law that is suited to the
local conditions is to be applied.

 Thus,there are 2 limitations in reception of English


law in Malaysia ie the existence of local
legislation and suitability of English law to local
conditions.
 Courts made various attempt to
formulate criterion of suitability to local
circumstances. Eg : COJ 1926 Sir Benjamin
Malkin viewed that English law applied
was modified by considerations to how
far some of its particular provisions &
enactments are suitable to the
circumstances of the Colony and with
due respect to the manners, usages and
religions of the different races.

However, in IN THE GOODS OF ABDULLAH


his decision in providing that the
alienation of a Muslim of the whole of his
property by will as valid was contrary to
 In REGINA v. WILLANS the administration
of justice should be adopted (so far as
circumstances admit) to the religions,
manners and customs of inhabitants. The
judges stated that the questions to be
asked was whether the English Act was
applicable to the situation of the SS ie
whether or not it was exclusively local in
its object & machinery and whether or
not injustice would arise from enforcing it.
 In ONG CHENG NEO v. YEAP CHEAH NEO the
Privy Council stated that statutes relating to
matters and exigencies peculiar to local
conditions of particular Colony do not became
part of its law although the general law of
England may be introduced into it.
 Thus, modifications of English law in favour of
local customs do not reach the level of a
compact body of well ascertained rules &
decisions. The words “as far as circumstances
will permit” should leave some scope for the
discretion of court in the application of English
law to the various circumstances.
 The local circumstances proviso in
Section 3, Civil Law Act, 1956 is not
entirely negative in character ie it does
not merely excludes unsuitable English
law but it also justifies the modification of
part of English law which is applied. This
power to modify is assumed to include
power to exercise discretion as to which
sections of English statutes are to be
regarded as inapplicable.
 On independence – all existing laws of
Federation of Malaya established under
Federation of Malaya Agreement 1948
continued in force ( with some
 Article162(1) of Constitution : the law shall
(until repealed by the authority having
power to do so under the Constitution)
continue in force on and after
Independence Day, with such
modifications as may be made under the
article and subject to any amendments
made by federal / state law. If there was a
conflict bet. existing law and constitution,
the existing law has to be modified to
accord with constitution. Refer to
SURINDER SINGH v. GOVERNMENT OF
FEDERATION OF MALAYA (1962) 28 MLJ
169.