Arrival of Colonial Powers & Reception of English Law in Straits Settlements PDF

ARRIVAL OF COLONIAL POWERS (DUTCH, PORTUGUESE AND BRITISH)  The influence of Islam in Malayan legal system and Borneo legal system was reduced a er the arrival of colonial powers The colonial powers brought with them their own law and system of administering the law  the objective of com...

ARRIVAL OF COLONIAL POWERS (DUTCH, PORTUGUESE AND BRITISH)  The influence of Islam in Malayan legal system and Borneo legal system was reduced a er the arrival of colonial powers The colonial powers brought with them their own law and system of administering the law  the objective of coming to this part of the world is to obtain gold, glory and gospel The luxuries for the Europe – gold, gems, silks and spices – came from the tropics they need to secure the trade route and the source of the goods the zeal to propagate Christianity that can be seen in particular in the Portuguese and the Spaniards  The “spirit of national pride” of the European, unfortunately sought to be fulfilled by the desire to dominate others “White man’s burden” refers to the belief of European that they are superior to the non- white the responsibility (that is the burden) of bringing those who they considered as the barbarian to the fold of civilisation Some elements in the British colonial administration thought that the native from Borneo, Malaya and Sumatra need to be protected from the influence of Islam  The Dutch, the Portuguese and the British came to the Malay Archipelago in the 16th and 17th century not to trade under an equal term but to rob valuable products with finesse coerced local chie ains to enter into restrictive trading agreements with them disallow trading with others and impose fix price on local products which they sell with enormous profit in Europe This monopoly degenerate local economy and disintegrate the local authority DOCTRINE OF IMPOSITION Doctrine of Imposition Also known as doctrine of reception Principles to facilitate imperialism British perspective Colonial law and colonial judge determine colonial law is applicable in a society Important to determine whether a territory is ceded or settled ANYONE KNOWS?? This Photo by Unknown Author is licensed under CC BY-SA PEDRA BRANCA(Pulau Batu Putih) 1. what are the issues ? 2. Explain the history 2. Who has possession ? 3. What was the decisions of International court of Justice 4. Why Malaysia lost the possession?  WHAT IS CEDED TERRITORY? It was inhabited and there already existed a sovereign. Local law continues until changed by the new sovereign for example the British WHAT IS A SETTLED TERRITORY It was uninhabited, terra nullius No local law English law applies RECEPTION OF ENGLISH LAW IN STRAITS SETTLEMENTS PENANG MALACCA SINGAPORE  the British has lasting effect on the Malaysian legal system imposed English law and English court system to the Peninsular of Malaya and Borneo Melaka various colonial powers such as the Portuguese (1511) and the Dutch (1641) In 1825, England took permanent possession of Melaka and it became part of the Straits Settlements in 1826 local inhabitants lived under Islamic law modified by custom  Penang British intervention in Malaya started first with engagements between Captain Francis Light of the East India Company and the Malay Sultanate of Kedah  cession of the island of Penang in 1786 the Malay Sultanate of Kedah agreed to hand over the island to the British in return of certain payment and military assistance Kedah was hoping for assistance from the British against the aggression of the Kingdom of Siam To secure their position in Penang, Francis Light obtained in 1800 the opposite strip of land in the mainland The British paid 10,000 Spanish dollars annually to the Sultan of Kedah Singapore Temasik, - Malay Sultanate of Johor Temenggong Abdul Rahman, a senior minister - governed Singapore - Malays and Chinese - early 19th century was roughly 1,000 people Beginning in 1819, Stamford Raffles entered into a series of agreements and treaties with the Sultan of Johor and the Temenggong Stamford Raffles was eager to ensure the British has a foot in an area controlled by the Dutch  The three settlements of Melaka, Penang and Singapore were incorporated into the Straits Settlements in 1826 Crown Colony - 1867 RECEPTION OF ENGLISH LAW IN PENANG Q: whether Penang was ceded or settled? -Differences of opinion between British judges and historians Regina v. Willan Sir Benson Maxwell stated: “When British came to Penang they came as garrisons not colonisers. Therefore English law could hardly be made the lex loci thus it was only applicable to the garrison”  Sir William Hacket J. disagreed with Benson Maxwell in Fatimah v. Logan “ Since the island was virtually inhabited their general rule is that when Englishmen establish themselves in any uninhabited or barbarious country they carry with them the law and sovereign of their country” The issue came to an end in the case of Ong Cheng Neo v. Yeap Cheah Neo & Ors.  Privy Council “…..it is immaterial to consider whether…. Penang should be regarded as ceded or newly settled territory, for there is no trace of any laws having established there before it was acquired by the East Indian Company. In either view the law of England must be taken to be governing law so far as it is applicable in the circumstances of the place and modified in its application by their circumstances” Q: Whether Penang was inhabited or uninhabitaed? “…..though four Maly families were found on the Sir Benson Maxwell stated island, yet it could not be R. v. Willian that: said to be inhabited and described it was a desert island” “In 1786 Penang being a deserted and uncultivated island, uninhabited except Fatimah v. Logan Hackett J. said: by a few itinerant fishermen and without fixed institution..” Factors to rebut 1.Sejarah Melayu (Malay History) by Tun Sri Lanang stated that British came to Penang which is a large kampung occupied land for 60 years. 2.An old register of survey dated 1795 mentioned that a fairly large Malay village of about 18 acres on the south bank of Penang river. It was also stated that the island had been occupied for 90 years. Administration of Law and Order before the Introduction of 1st Charter Of Justice (COJ) -No known body of law was administered -Irregularities in the system of administration -Injustice took place (different treatment between the locals and the British) -In murder cases Ct. Martial was established consisting of not more than 5 -For petty civil cases it was handled by local headman among locals For civil cases it was only limited to 10 dollars. The  Supritendent Magistrate Second Assistant The irregularities in the system of administration leads to the period of legal choas and the introduction of 1st COJ 1807. For example the case of Aphoe and Kehim For British subjects: ⦿ A British subject who commits a wrong cannot be tried in court. Must be sent back to Bengal. ⦿ E.g. Case of James Sudd (1793) ⦿ Sudd committed murder, deported and tried in Bengal. Was found not guilty because of insufficient evidence.  Ahpoe and Kehin (1797) Guilty of adultery which was a serious offence at that time. Punishment: Heads were shaved, made to stand in public place for certain hours in a day.  st 1 Charter of Justice 1807 1. Establishment of Ct. of Judicature in Penang &Prince of Wales Island. The hierarchy was as follows. o GOVERNOR THREE COUNCELLORS JUDGE (RECORDER)  ii. The Court is to have jurisdiction and powers of the superior courts in England and several justices, judges and barons thereof” so far as several religions, manner and custom of the inhabitants will admit”. iii. It is to exercise jurisdiction as an Ecclesiastical court “so far as several religions, manner and custom of the inhabitants will admit” Q:DOES THE FIRST COJ HAS ANY EFFECT/S ii. A proper and i. English law standardized iii. It has effect on applies both in civil system of the position of and criminal administration was Islamic law established Facts: Plaintiff filed action against the Case: Kamoo v. Bassett defendant for assault, battery and false imprisonment  Principle (Kamoo v. Basett) “COJ applies retrospectively to civil injuries which have been sustained and crimes which has been committed before the Charter is to protect the native inhabitants from oppresion and injustice”  Stanley R: “It is true this was done before the COJ had been promulgated here and before this court had been established: but yet the Charter extend in terms of civil injuries which have been sustained, as well as to crimes that have been committed before the Charter”.  Fatimah v. Logan Facts: A Muslim died in Penang leaving him a will. Issue: What law must be applied to determine theb validity of the will. AG for the plaintiff argued that Muslim law must be applied. Hackett J: “ By this COJ 1807 the law of England introduced to Penang and became the lex-loci of Penang and that all those who settled have became subject to the law. Further the validity of the will must be accordance with English law” nd 2 CHARTER OF JUSTICE Granted on 27th March 1826. The main objective was the extension of the Court of Judicature’s jurisdiction to Malacca and Singapore.  nd Effects of 2 COJ i. Extension of court’s jurisdiction to Penang and Malacca and Singapore. ii.English law had been made the lex loci of Malacca and Singapore. iii.It has abrogated previous law Iv. It has affected on the position of Islamic law as the law of the land  Rodyk v. Williamson Facts: A Dutch man died leaving behind him a will to his wife. Issue: Which law to be applied? Held: In deciding the rights of a Dutch widow, her rights were to be those of a widow according to English law not Dutch law formally applied or received in Malacca. Benjamin Malkin: “The law of England had been introduced to Malacca by charter of 1826 so as to abrogate the Dutch law”  In the Goods of Abdullah Issue: Can a Muslim who died in Penang devise his entire property by means of a will? Malkin J:The law of England introduced into SS but the 2nd COJ in 1826 had superseded the previous law. Any local inhabitants of the settlements who wish to leave their property by will in accordance with their personal laws must expressly indicate their intention that their will is to be construed by those personal laws. In the absence of such express declaration, English law shall apply.  Regina v. Willans Sir Benson Maxwell said: “ The 1st COJ introduced the law of England into Penang. As far as the 2nd COJ 1826, it introduced the law of England as it existed on that date not only to Malacca and Singapore, but also to Penang as well, in so far as conditions and circumstances of the place and persons shall admit.”  rd 3 CHARTER OF JUSTICE Granted on 12th August 1855 Effect: The court was composed of 2 divisions; one having jurisdiction over Singapore and Malacca consisting of the Governor or Resident Councilor and Recorder of Singapore. The other having jurisdiction over Penang and Province Wellesly consisting of the Governor or Resident Councilor and Recorder of Penang. Regina v. Willans