Malaysian Legal System: History

Nurul Asyikeen Abdul Jabar

 Early stage of human civilization/ Prehistoric
Malaysia
Paleolithic age lived in caves, mainly activity was collecting forest product and
hunting, started using stone tools, tools were simple and crude,
nomad

Mesolithic age Lived in caves and also along rivers and lakes, starting farming,
used more refined stone tools, able to make earthenware

Neolithic age Used more sophisticated stone tools, started rearing livestock,
started communicating with communities in other places,
started creating objects and using accessories

Metal age Population grew, developed residential areas in wide open land
near rivers, more orderly and sedentary lifestyle, practice social
custom
Three main groups of aboriginal tribes in The interior costal jungles of
Peninsular Malaya

Negritoes Least organized, lived in Can be found in Punishment:-

tribal nomadic societies and Perak, Kedah and
always moved from one
place to another.
Each tribe was headed by a
chief, usually the eldest
member of community and
he had full power over his
subjects. He is also a
medicine man as well as
judge for all.
They are hunters and
depended too much on
forest product either to build
their houses or for foods.
Normally fines will
Kelantan be imposed for
theft of blow pipe
or murder.
Cheating: fine. If
refused to pay, the
culprit would get a
thorough good
scolding from all
members of the
tribe
Senoi •Headed by penghulu. He is also Can be found Punishment:-
medicine man or known as Pawang in Perak, Murder: family of the
who normally organized the Negeri victims will determine
traditional medicine and a ceremony Sembilan, on what type of
called Ngenggulung Pahang and punishment the
Selangor offender would be
•For economic development, they executed.
used slash and burn techniques to Dispute concerning
clear the land. They depended on women: fined or
agriculture activities and most of sentenced to pay
them cooperated collectively compensation.

•Penghulu will be inherited by on his

death by his eldest son or anyone
who was eligible.

•Penghulu had full power in Civil and

Criminal offences except murder cases
•They practiced a sort of contract in
supplying food for a specified period for
one particular family.

•They exchange food for one month

period with loincloth.

•The land also was believed to be leased

out. The debtor who was unable to pay
was fined by working for the creditor and
during such period, the debtor and his
family were supplied with food.

•The tribe did not recognize the individual

property among them.
They believed that a big tree or stone
possessed a great spirit. Sun was a bad
spirit because it produced hot weather
and caused trouble to human. Moon is a
good object because it gave light to
humans during night time.
Proto-Malay They have their own political Can be found in The penalty for
system. Man plays important Selangor, Negeri most offences was
role in politic and leadership. Sembilan, a fine.
Each tribe headed by Batin. Melaka, Perak For incorrigible
Batin will be a middle man if and Johor thieves and
there is tribe dispute and adulterers, the
marriage. He is also a execution will be in
medicine man called as form of impaling or
bomoh and leader of special drowning or
occasion. exposure to the
They focused on agricultural sun.
and solely relied on forest
products.
 Parameswara
• A Hindu prince of Palembang came to Melaka
from Temasek when Majapahit and Siam
government hunting him after he killed
Temagi. He watched a scenario whereby his
dog had been kicked off by a mouse deer and
he was impressed. Then he called the place
Melaka when he knew the tree that he was
leaning under it called Melaka tree.
Hinduism influence to Parameswara’s administration

• Politic – monarchy system

• Social – language e.g Paduka, Raja
• Culture – food, henna, bersanding
The administrative and legal system of
Malacca

bendahara

penghulu bendahari

temenggong

laksamana
• Followed by:-
• 8 major chiefs - seri
• 16 minor chiefs - raja
• 32 Penghulu

• Law:
• Hukum Kanun Melaka
• Undang-undang Laut Melaka
• 1. To ensure peace and harmony in the
colonies
• 2. To collect taxes in “kawasan pemakanan”
and submit them to the chief higher than
them
• 3. Provide labourers and army for Sultan
• 4. celebrate Eid with sultan
 Coming of Islam
• Few theories:
Theory 1 - Traders Theory 2 - Marriage

Arab - common marriage

China diplomatic marriage
India

• Modified certain provision in HKM and UULM

to suit with Islam.
 Reasons for the glory of Malacca
• Excellent rulers
– Parameswara has been described as a King who was
clever and he always though ahead.
– Laws were codified as part of efficient legal and
administrative machinery for the long-term plan for
foreign traders
•   Malacca – a vassal state of China
– In 1403, Parameswara obtained protection from China.
So, Malacca gained the assurance of protection and
respectability
– Malacca was thus safe from Siamese and this made the
traders and merchants comfortable to come to
Malacca.
• A strategic place
– Possess a host of natural geographical and nautical
advantages to facilitate the coming of traders from
East and West.
– Central port along the Straits
• A great Entryport – A meeting place of the
East and West
– Suitable port of the Chinese and Indian traders to
meet and exchange their goods
• Assurance for the safety of Traders
• Efficient Administration
– Introduction of Syahbandar
• To oversee the affairs of the particular group of
traders.
• To manage the market place and the warehouse
• Maintain and check on weights, measures and coinage
• Adjudicate in disputes between the ship’s captain and
the merchants
• Facilities at the port.
 Reasons for the downfall of Malacca

• Internal factors:
– Inefficient Bendahara – Tun Mutahir
– Weak administration of Sultan Mahmud shah
– Corruption
– Malacca’s trading decline. – Taxes are very high.
– Disunity
• External factors:
– The foreign traders help to the Portuguese
– The states under Malacca separated
– The strength of the Portuguese army
– The efficiency of the Portuguese army
 Colonization period
Portuguese Dutch
Factors for the occupation of Reasons for the occupation of Dutch
Portuguese
• Venice and the monopoly of the • The trade embargo in Europe
Eastern Goods • Lisbon was closed to Dutch ships
• The Fall of Constantinople
• The search for Prester John
• Portugal – a strong Sea Power
• Prince Henry- the navigator
 British
• Factors which led into British intervention in Malay States:
• Economic interest – the instability of the economic
situation in 19th Century has opened a wide opportunity
for the British to interfere in Malay states in order to
ensure their economic interest was not affected.
• The development of industrial revolution in Europe within
19th Century – tin is important.
• The opening of Suez Canal in 1869 – shorten their
journey.
• Rivalry and competition among other Europeans countries
• Rivalry in the local government itself.
 Impact from British intervention into Malaya:

• Politic – application of English law in Malaya

• Economic – development of economic such as
train, school and hospital
• Education – people realized that education is
important
• Police force was established
 Reasons for Japanese occupation:
 

• To establish a New Great East Asia

government
• Japan faced economic problem
• The growth of Japanese and lacks of land to
be cultivated
• Japanese needs lots of natural resources such
as oil and tin.
 Impact on Japanese occupation:

• Social – Japanese invasion worsened the

relationship among the races in the country
especially Chinese and Malay. Japanese were on
the side of Malay and were against the Chinese.
• Economic – Malaya was in complete confusion.
Much of economic infrastructure were destroyed
• Politic – Japanese administration was a period of
misery for the local citizens
 Introduction of residential system:
• Effects:
• Positive:
– British protected the Malay states of Perak, N.sembilan, Pahang and
Selangor
– Development of natural resources such as tin, mine, gold etc
– Tremendous economic development and higher standard of living resulted
– The improvement of communications and the improvement of health
facilities
– Better secular education facilities introduced
– Unjust systems like debt slavery were abolished
– Political stability and security for the sultan were guaranteed
– Civil war, rebellion and succession problems were successfully stopped
– The process of urbanization rapidly developed
– Negative

• Sultan lost the power to rule their own people

• Many independent Malay chiefs lost the power, influence,
jobs and vital source of income
• Create a gap between the rulers and society
• English lifestyle becomes a tradition among rulers, chiefs
and Malay prince.
• Instability and lacks of economic growth especially in
distributing the wealth of the country.
• Most of the immigrants monopolized the economic while
the locals were left behind
• Social problems happened like Chinese gangsters riot etc
 Introduction of federation of Malay states:

• Factors
– The location of Pahang and the finance problems
in Pahang in 1890’s.
– To control the power of resident.
– Standardization, uniformities and effectiveness in
administration
– Safety factors.
– Under one federation, the resources could be
exploited, gathered and used for common interest
• Objective:

- To shift the administration to Singapore and to

increase the power of Sultan and resident.
 Impacts on Political system:
Positive effects
One system of administration was
formed for the Malay states which were
under the reign of British.
All the administration management was
centralized by the central government
situated in KL.
Brought stability in politics and
effectiveness of administration
Established police force and mukim
system
Negative effects
The centralization of power in the hand
of Resident general
Frank Swettenham was appointed as the
resident general due to his experience in
Malay States. All important decisions
were to be made in KL.
Resident had full power in controlling
the finance and under the central
government
Loss of power of rulers, resident and
state council. All of the high position
officers were appointed among British
only
 Impacts on Economics:
Positive Negative
Stability in economic growth due to many All the economic activities being
foreign investors that invested in Malay monopolized by the foreign traders and
states the local were left behind

Growth in tin and rubber development

added additional income to the central
government
 Impacts on Social:
Positive effects
Growth in population due to the process
of immigrant from china and india to work
at the tin mines.

Improvement of facilities like school, clinic

and hospital.
 British advisory systems
• Differences between Resident system and Advisory systems

RESIDENTIAL SYSTEM IN FMS BRITISH ADVISORY SYSTEM IN UFMS

British residents were appointed in perak, British advisors appointed in Kedah, Perlis,
Selangor, Negeri Sembilan and Pahang Kelantan, Terengganu and Johor

British resident on duty to advise the The duty was to give advice but was not
sultan in all matters of administration necessarily being followed.
except matters pertaining to religion and
Malay Adat.

British took over the control of Sultan remained powerful and had their
administration own control over the land in matters like
Sultan lost their power and had to follow financial, administration etc.
the Resident’s advise

The government was mainly run by the The government was mainly run by the
British and locals were not given any post Malays
 Strait Settlements
• History:
 
• Penang: the question whether Penang was ceded or settled is relatively important to determine
lex loci or law of the land in Penang. Did the English settlers bring with them the law of England
on the ground that the island was “acquired by occupation” or was the law of Kedah to be
applied to the island on the ground that the island was ceded by the Sultan to the English?

• Ong Cheng neo v Yap Cheng Neo

• Held: there was no trace of any laws having been established there before it was acquired by the
East India Company. In either view, the law of England must be taken to be the law of the land
modified by local circumstances. (Settled land)

• 1st Charter of Justice (1807): application of English law in Penang since the land was wholly
uninhabited.
 
•  2nd Charter of Justice (1826): English law has been extended into Malacca and Singapore. And the
court was named court of Judicature of Prince of Wales Island, Malacca and Singapore.

• 3rd Charter of Justice (1855) – due to rapid changes, increasing number of population and
commercial activities – the Charter enabled the reorganization of the courts systems and
additional Recorder was appointed for Singapore.
 Idea of Malayan Union
• Features:

• Made up of the nine Malay states, Penang and Malacca.

• The British governor was the chief administrator with its centre
in KL.
• The Malay rulers only advised the governor.
• The state council was retained for purposes of managing the
local government, but was still subjected to control by the
central government.
• Singapore is not included in Malayan union
• Citizenship was based on the principle of jus soli.
• Equal rights for all citizens regardless of race and origin.
 Factors which led to the failure of the union:

• Strong opposition from the Malays

– The granting the citizenship to the non-Malays
– Erosion of Malay rulers’ power and sovereignty
– The rulers were threaten and forced to sign the agreement to form the
Malayan union
• No strong support from non-Malays because they were not
interested in Malayan Union.
• Wrong timing because hostility still existed between Malay and
Chinese
• Wrong introduction – it has been set up in London without taking
into consideration circumstances in Malaya
• Opposition from former British administrators in Malaya.
 Formation of Malaya: process
After the dissolution of the Malayan Union, the British Government appointed, on 25th July 1946, a working committee to draw up a new constitution to replace that of the
Malayan Union.

The Federation of Malaya came into existence on 1st February 1948 embracing all the nine states plus the two Settlements of Malacca and Penang.

In 1949, the British Government set up an Inter- Ethnic Relations Committee for the purpose of open discussion of racial problems.
The committee played an important role because it provided the basis for problem solving through the process of consultation and discussion.

In April 1951, the British Government introduced the Member System in the Federal Legislative Council to provide local people the opportunity to be involved in the
administrative system.
Purpose: to appoint local representatives to the post of head of department in the central government.

British Government used election as a test of unity in the country with the promise that independence would only be granted if the citizens of the country were united.
December 1951: Georgetown City Council election
February 1952: Kuala Lumpur city Council election

1953, the demand for general elections decided by national conferencee organized by Dato' Onn Jaafar

27 July 1955, first General Election was held throghout Malaya.

Tunku Abdul Rahman led a team to London in February 1956 to negotiate for Malaya's independence. the British promised to grant independece on condition that a
comission be formed to outline and draw up Malaya's new constitution. British government agreed to declare independence for Malaya on 31st August 1957.
• Constitution of the Federation of Malaya:

• Lord Reid headed the Reid Commission, set up in 1956 to

draw up a constitution for independent Malaya.
• Members:
• Lord Reid (Britain)
• Sir Ivor Jennings (Britain)
• Sir William Mckell (Australia)
• B. Malik (India)
• Judge Abdul Hamid ( Pakistan)
• The Constitution, accepted and approved by the Federal
Legislative Council on 15th August 1957, came into effect
on 27 August 1957.
• The Malayan Constitution based on the concepts of
constitutional monarchy and democracy.
 Formation of Malaysia:

• Factors:

• Independence Through Unification

• Understanding for the development
• Ethnic balance and Unity
• Collective Fight against Communism
• Economic cooperation
• United in International Relations
• Reactions towards the idea:

• Singapore –
– Generally well accepted and everybody agreed to
the formation of a new country and a new
government. Lee Kuan Yew apparently the leader
of People’s Action Party (PAP) was most
interested. However, PAP received opposition
from United People’s Party (UPP). Their political
aim was to bring independence to Singapore
through some other way and using a different
ideology.
• Sabah and Sarawak-
– The reaction of the people was most encouraging.

• Britain
– The British accepted that the countries in the region merge and set up a new nation

• Brunei
– Not unanimous
– AM Azhari Leader of Brunei People Party (armed rebellion) opposed
– Sultan lost interest
– Position of Sultan in Council
– Status of Brunei
– Unresolved financial matters – oil royalty

• Malaya
– Malaya concept was generally accepted but there were also people who thought
differently
– Except for Kelantan
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