Malaysian Legal System History PDF

RECITATION OF DOA BEFORE CLASS (pray according to your belief) FLEXs (Flexible education with soul) MALAYSIAN LEGAL SYSTEM Dr. Shariffah Nuridah Aishah Syed Nong FUHA, UNISZA Why history matters ?? History is important because it teaches us about the past. By learni...

RECITATION OF DOA BEFORE CLASS (pray according to your belief) FLEXs (Flexible education with soul) MALAYSIAN LEGAL SYSTEM Dr. Shariffah Nuridah Aishah Syed Nong FUHA, UNISZA Why history matters ?? History is important because it teaches us about the past. By learning the past, you come to understand the present, so that you may make educated decisions about the future..  What u will learn… 3. English law in 1. Legal System of Malay States Malacca Sultanate Fed Malay States Malacca UnFed Malay States Portuguese Dutch 4. English law in Borneo States 2. English law in Sarawak Straits Settlements Sabah Penang Malacca 5. Independence & Formation of Malaysia Singapore 1.THE LEGAL SYSTEM OF MALACCA SULTANATE  Elements of unwritten laws existed in Malaya for 18 centuries - in the Sejarah Melayu forms of words titah, book : daulat, murka, kurnia, anugerah and beta - contained legal values. Ruler was the source of law & fountain of justice - determined penalties for heavy crimes like murder, robbery and theft. He was the highest court - had 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 - played important roles - powers depend on Ruler. Sejarah Melayu book: Sometimes Ministers became more powerful than Sultan Ministers were divided into several categories of offices: Offices Powers Power was equal to PM. Acted as Bendahara Sultan’s adviser & responsible for carrying Sultan’s order. Power was equal to Chief Police. Temenggong Administered prisons & arrested criminals. Power was similar to Commander-in- Laksamana Chief. Responsible to execute the sentence passed. Ministers were divided into several categories of offices: Offices Powers The Chief Secretary of Bendahara & Penghulu Treasurer. Bendahari The harbour master. There were 4 Shahbandar Shahbandar to supervise 4 main groups of traders ie from China, Malay Archipelago, Gujerat (West India) & South East India. Governor of isolated posts who has civil Mandulika & criminal jurisdiction.  Spreading of Islam had made Malacca a Muslim kingdom under Sultan Iskandar Shah & his successors. 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 glory days - Malacca empire covered Pahang, Siak, Kampar, Rokan, Indragiri, Terengganu, Johore, Rhio-Linggi Archielago, Patani & Kedah.  1.1 MALACCA LAW DIGESTS  At the end of its heyday, there were an important digest of Hukum Kanun law known as Hukum Melaka was a hybrid (mixed) text. Kanun Melaka, which contained a mixture It composed of of Hindu law, Muslim several separate texts which were law & Malay customs. bound together as one manuscript. Its contents were not written in the same period but went through a process of continual growth.  Hukum Kanun Melaka consisted of 6 different texts namely : i. The Undang-undang Melaka ii. The Maritime Law iii. Muslim Marriage Law iv. Muslim Law of Sale & Procedure v. The Undang-Undang Negeri vi. The Undang-Undang Johor. ✓ Only Undang-undang Melaka and Maritime Law will be focused here. Basic characteristics of Undang-Undang Melaka : Has 44 chapters altogether. Was applied by all Rulers & Ministers in all lands on the customs in the dependant areas and villages of Malacca. Based on patriarchal law of Adat Temenggung and Islamic law from Syafie school of law. Provided responsibilities of Rulers & ministers, prohibitions amongst society, penalties for civil & criminal offences.  Had several sections on family law which were translated from Islamic family law. 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. Example: Section 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.  The judges had wide discretionary power to impose the most appropriate sentence. Covered a wide range of civil & criminal matters - but all were mixed up and improperly categorized. 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. Contained some aspects of Islamic law such as validity of marriage, marriage witnesses, talaq, property claim, trusteeship, performance of prayer, taking oath, etc. No clear separation between secular and religious matters. 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 istana) and royal commands (menjunjung duli). 2. Basic characteristics of Undang- Undang Laut Melaka : ✓ Comprises of 25 chapters. ✓ Contained rules + regulations relating maritime matters. Eg: rules of sea voyage and trade, jurisdiction of Admiral and penalties for criminal offences. ✓ Based on Adat Temenggung & Islamic law of Syafie school. ✓ Only one section deals with Islamic penalty. ✓ Compiled under consultation of captains from Bugis & Macassar.  CONCLUSION : 1. Both digests were compilations of Malay customary law with relics of Hindu law overlaid by Islamic law. 2. Both digests 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. Now I know that …  1.2 PORTUGUESE ADMINISTRATION IN MALACCA… The 1st European who came Occupied Malacca from to Malaysia. 1511-1641. Army was headed by Established a military & civil Alfonso de Albuquerque. administration. In civil matters : Governor Malacca was governed by a was assisted by a Council Portuguese Governor who which consisted of Ovidor had wide authority over all (Chief Justice),Viador, local people and foreigners. Bishop/his deputy and State Secretary. 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. No separation between judiciary and executive.  PORTUGUESE ADMINISTRATION Governor assisted by Council CIVIL MATTERS Council consisting of Ovidor,Viador, Bishop/Deputy Bishop & State Secretary Governor decided big cases Sentence passed by Ovidor was subject CRIMINAL 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  Bendahara - appointed to deal with matters of foreign Asiatics in Malacca.  Temenggung - appointed to handle rural districts like Naning + Linggi.  Shahbandar - responsible for all Portuguese traders.  Portuguese justice was no less corrupt than Portuguese administration - words like “torture”, “dungeon” crept into Bahasa Malaysia.  Ovidor’s jurisdictions : 1. Civil : try cases involving max 200 crosado. 2. Criminal : judgment made must get confirmation from 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.  Doubtful whether the Portuguese law ever introduced to Malacca.  However, scholars in general agreed that local people continued to practise Islamic law, Malay & other 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. 1.3 DUTCH ADMINISTRATION IN MALACCA STADTHUYS CHRIST CHURCH Occupied Malacca in 1641 after Portuguese. Governed by a Governor who had supreme authority over all people in all matters. Governor was assisted by a Council – consisted of Collector, Fiscal, Mayor, Upper Merchant and Secretary. Council of Justice - to administer justice. Special Council - to manage ecclesiastical affairs. Law regulations were issued by central government in Holland, Batavia (Java) and local executive. 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.  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.  Supported by Sahrip v. Mitchell - Sir Benson Maxwell C.J : “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…” Malacca Sultanate video: https://www.youtube.com/watch?v=I4edQj1V_J4 https://www.youtube.com/watch?v=I4edQj1V_J4 (2.48 minutes) Fall of Malacca Sultanate video: https://www.youtube.com/watch?v=dtrSqo0Giqg https://www.youtube.com/watch?v=dtrSqo0Giqg (13.33 minutes) Straits settlements comprise of 3 states: PENANG MALACCA SINGAPORE 2.1 PENANG The spot where Francis Light 1st landed in Penang  British early relation with Malaysia in trading Occupation in Penang ventures became mixed – through agreement. political + commercial It was renamed as connection from 1684- “Prince of Wales 1762. Thus need to Island”. According to establish commercial port Charter of Justice 1807, when first in Straits of Malacca. occupied by British, Captain Light proposed Penang was wholly Penang. 1786-negotiations uninhabited. with Sultan Kedah for cession. Sir Benson Maxwell disagreed with COJ - 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. It 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.  Judicial hierarchy Decisions by Superintendent had consisted of 3 Magistrates had to no power to carry officials : be submitted to out death sentence Superintendent, Superintendent for without approval Magistrate & Second approval b4 it can be from Governor- Assistant. executed. 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.”  English law not applied Apply Unclear principles seperation of natural of power justice Under Bengal LEGAL No courts admin CHAOS Small cases Big cases decided by decided by local 3 officials headmen Local laws applied 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. In KAMOO v. BASSETT the court held : It was accepted that the COJ introduced the laws of England as it existed in 1807 into Penang. COJ 1807 established Court of Judicature of Prince of Wales’ Island in Penang. The court has jurisdiction as: (a) superior courts in England in deciding civil & criminal cases and (b) 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 before 1807 which were pending trial. It means that - COJ 1807 applied retrospectively to civil injuries which had been sustained & crimes which had been committed b4 the Charter 1807 came into force. Objective of the Charter 1807 was to protect local inhabitants from oppression and injustice. In ONG CHENG NEO v. YEAP CHEAH NEO the court held : “…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 according to English law. In IN THE GOODS OF ABDULLAH, 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 was also applicable to Penang (at this time, Penang, Malacca & Singapore had formed SS). It contained same provisions as COJ 1807. Purpose: to 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 : 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) It was granted on 12th August 1855 to SS (including Penang). Purpose: only to re-organize the existing courts. It did not introduce English law to the SS. Additional Recorder (judge) appointed for Singapore. Court had 2 divisions : one having jurisdiction over Penang and the other having jurisdiction over Singapore & Malacca. COJ 1855  2.2 MALACCA Here we see Malay boys wearing traditional clothes during the British colonial period.This photograph was probably taken in the 1920s. British obtained permanent possession in 1824 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 - 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) which was granted on 27th Nov 1826 to the Straits Settlements was also applicable to Malacca (at this time, Penang, Malacca & Singapore had formed SS). Contained same provisions as COJ 1807. Objective: to 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.  Position of Dutch law in Malacca : RODYK v. WILLIAMSON case provides that the law of England had been introduced by the Charter 1826 so as to supersede the law of Holland. This means that the Dutch law was abrogated and replaced by English law.  Position of other existing laws : IN THE GOODS OF ABDULLAH case stated that 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 property of a Muslim) was valid.  However, position of Malay customary law in Malacca after COJ 1826 granted had not been affected (still recognized & applied). The case of SAHRIP v. MITCHELL stated that the court recognized Malay custom whereby 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 the land to him. CHARTER OF JUSTICE 1855 (COJ 1855) was granted on 12th August 1855 to SS (including Malacca). Purpose : 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. SINGAPORE Statute of Stamford Raffles at his landing site by the river  1819 - Stamford Raffles arrived. As the 1st Resident, he administered justice with assistance of Sultan & He framed a number of Regulations inter-alia Temenggong of Johore. 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.  English-trained administrators Magistrates Magistrates had wide LEGAL had no discretionary CHAOS formal powers training English regulations were 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) It was granted on 12th August 1855 to SS including Singapore. Purpose: only to re-organize the existing courts. It did not introduce English law to the SS. Additional Recorder appointed for Singapore. Thus now the court had 2 divisions : one division having jurisdiction over Penang and the other division 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 is 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, it is re-enacted in Sec. 5(2) of Civil Law Act 1956) Now I know that …  Test yourself… What were the How English law effects of Civil Law was applied in SS ? Ordinance 1878 ? What were the What are the cases purposes of the that have to be three COJs ? remembered ? 3. RECEPTION OF ENGLISH LAW IN MALAY STATES Red : SS (Straits Settlements) Yellow : FMS (Federated Malay States) Blue : UFMS (Unfederated Malay States)  Adat Perpatih (in most area of N9+Naning) and Adat Temenggung THE LAW (in other states). Most of it were BEFORE unwritten. BRITISH  Muslim law (at first adopted in purely religious matters) gradually INTERVENTION developed to other matters. Muslim law of marriage and divorce was adopted by both adat. Some Islamic influence also existed Thus, at the time of British intervention in Adat Temenggung relating to in Malay States, the criminal matters. law applicable were  While the law governing property Malay customary and succession was Malay law + Islamic law. customary law - no Islamic influence.  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. Law applicable in Malay States was summarized in cases: SHEIKH ABDUL LATIF v. SHAIK ELIAS BUX : Before 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 applicable to Muslims were Islamic law + Malay customs. RAMAH v. LATON : Muslim law was not foreign law but the local law and the law of land in Malay States. APPLICABLE 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. Example: N9 tenure matters were governed by Customary Tenure Enactment 1909 - provided restriction on dealings with ancestral lands - also distinguished between “customary” and “non- customary” lands. Perak accepted British authority in 1874  Selangor in 1875  Pahang in 1888  N9 in 1889.  British introduced Residential system - 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 (FMS) under administration of a Resident-General. Johore (different 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. 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 went to Resident’s Court with final appeal to Sultan-in-Council.  Magistrates followed Indian law & procedures.  Example: All cases in Selangor have to be determined according to SS Penal Code, SS Evidence Ordinance, Indian Civil Procedure Code, Specific Relief Act & Court Fees Act but subject to local law + established customs.  Adat criminal law was replaced by a penal code based on Indian model - 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).  1937: Statutory reception of English law in FMS. 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 cases of : LEONARD v. NACHIAPPA CHETTY: the 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. 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: 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.  Re Yap Kwan Seng’s Will  Facts : testator in his will stated that his houses & land be held in trust forever for family ancestral worship & burial ground acc to Chinese custom.  Issue : whether such trust was valid?  Held : Since the trust could not be public, religious or charitable, it was void ab initio because contrary to rule against perpetuities. This rule was well - suited to the needs & conditions of FMS and should be applied. A trust for ancestral worship was not public, religious or charitable use. (Salleh Buang pg 98)  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. In dealing with tort cases, the courts have always turned for guidance to English common law.  Thus, the Civil Law Enactment 1937 which 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 (UFMS)  Also British protectorates & not colonies.  Different from 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 (a) legislation based on English models (b) decisions of courts- through English trained judges & lawyers.  Bunga mas (golden flowers) presented to Siam as a tribute by Kedah during the period of Siamese suzerainty over the state.  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 / STATES  FMS under the 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. (Salleh Buang pg 50)  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. (Salleh Buang pg 52)  Mighell v Sultan of Johore : English courts have no jurisdiction over Sultan coz he was independent foreign sovereign, unless he agreed to be tried (continue to next pg) (Salleh Buang pg 49) 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. Now I know that …  Test yourself…  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?  4. 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. Section 2 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”.  Under 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 LIU KUI TZE v. LEE Sarawak. This Order recognized SHAK LIAN: 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 received.  RECEPTION OF ENGLISH LAW IN SABAH AND SARAWAK KHO LENG Orders and other written laws enacted GUAN v. KHO by/with authority of His Highness the Rajah. ENG GUAN English law in so far as it is not modified held : the legal by the law comprised in (1) and so far as it is applicable to Sarawak, having regard sources of to native customs & local conditions. law of Certain laws & customs of races indigenous to Sarawak including Islamic Sarawak were law and other native laws/customs in so three fold : far as they are reasonable.  The 3rd 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 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.  SABAH  Previously 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 Thus, Mr. Wooley Company ruled carried out the Sabah – there 1st collection in a was a body of series of Native customs by which Affairs Bulletin by the headman of setting out in each village detail certain administered features of justice. British felt customary laws that those native of Dusun, Murut customs should & Kwijan. be codified. 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. Now I know that …  How English law was applied in Borneo states ?  What are the effects of the application of English law to Sabah & Sarawak? 5. 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. JAPANESE SOLDIERS CYCLING IN MALAYA IN 1941  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, Malayan Union (reducing Malay states to colony status) invoked fierce Malay opposition. MU was replaced by Federation of Malaya established on 1st February 1948.  INDEPENDENCE  1948 : 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. Perjanjian Persekutuan Tanah Melayu set the powers of the federal and state governments. Financial matters must be handled by the respective states. The Sultan was given full power on religious issues and Malay customs. Foreign policy and defence continued to be administered by the British government.  1951 1955 1956 “Quasi-ministerial” 1st federal election Tunku led delegation system was was held. to London to introduced to Alliance party of negotiate for prepare nominated UMNO, MCA and independence. members of Federal MIC led by Tunku At London Legislative Council. Abdul Rahman won Conference, basic 51 of 52 seats. principles for Tunku was appointed granting of as 1st Chief Minister independence of the Federation. agreed. Reid Commission was appointed to draw up constitution. Reid Commission’s proposals became constitution for the Federation which proclaimed its independence on 31st August 1957. DELEGATION FOR INDEPENDENCE IN 1956  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. Dato’ Donald Stephens (left) (Chief Minister of Sabah) declaring the forming of the Federation of Malaysia at Padang Merdeka, Jesselton, Kota kinabalu on 16 September 1963. Together with him is the Deputy Minister of Malaya Tun Abdul Razak (right) and Tun Mustapha Harun (second right).  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 Islamic rules of inheritance.  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 amendments/ adaptation/repeal).  Article 162(1) of Fed 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 fed constitution, the existing law has to be modified to accord with constitution. Refer SURINDER SINGH v. GOVERNMENT OF FEDERATION OF MALAYA (1962) 28 MLJ 169. FIRST GENERAL ELECTION IN 1955 Now I know that … END OF TOPIC