MALAYSIAN LEGAL SYSTEM Legal history STRAITS SETTLEMENTS PART2

LEGAL HISTORY- STRAITS SETTLEMENTS PART 2

The 2nd Royal Charter of Justice

Malacca

A powerful Malay kingdom until 1511 Under Portuguese rule 1511-1641 Under Dutch rule 1641-1795 1795 – British was given temporary

possession of Malacca by Dutch 1818 – repossessed by Dutch 1824 – permanent possession by British

(Anglo-Dutch Treaty 1824) 1826 – became part of Straits

Settlements colony.

Singapore

Was part of Johor 1819 – Sir Stamford Raffles established

Singapore as a trading post. Singapore then was largely

uninhabited. There were about 150 Malay fishermen under the authority of the Temenggong who was an official of the Johor Sultanate. There were also some Chinese inhabitants.

Treaty between Sir Stamford Raffles (EIC) and Sultan of Johor for British to possess Singapore

1824 – British acquired permanent possession of Singapore.

By the treaty of 19 November 1824, the Sultan of Johore and Temenggong agreed to ‘cede in full sovereignty and property to the Honourable the English East India Company, their heirs and successors forever, the Island of Singapore …’

2nd Royal Charter of Justice 1826 Granted by King George IV on 27 Nov 1826

To extend provisions of 1st RCJ to cover Malacca and Singapore

Established a new Court of Judicature for Penang, Malacca and Singapore.

The court was renamed “Court of Judicature Prince of Wales Island, Malacca and Singapore”.

Effect of the 2nd RCJ

The Charter introduced the General Law of England (as it existed in 1826) into the Straits Settlements i.e. Penang, Malacca and Singapore.

Effect on Penang

Regina v Willans Issue: whether a statute passed in England in

1824 was applicable in Penang

Maxwell R: Whatever law the second Charter introduced into Malacca, was introduced into every part of the settlement; and as it has been decided that the law of England as it stood in 1826 was brought by it into Malacca, I am of the opinion that the same law became, by the same means the law of Penang.

Effect on Malacca and Singapore

Rodyk v Williamson Malkin R held that with the

introduction of the Charter, it supersedes Dutch law and the law introduced was English law.

Rodyk v Williamson (1834)

The introduction of the King’s Charter into the Settlements had introduced the existing law of England and had abrogated any law previously existing.

Dutch law was ignored.

Choa Choon Neo v Spottiswoode Court ignored Chinese customary

law on the making of a devise giving property for charity.

Court held that the devise is not charitable (applying English law).

“It is clear that in England [such devise] would be void”.

The 3rd Royal Charter of Justice

The 3rd Royal Charter of Justice 1855

Granted in 1855.

To restructure the administration of justice

Before 3rd RCJ, there was only 1 Recorder handling cases in the Straits Settlements who visited Malacca and Singapore twice a year.

After 3rd RCJ, 2 Recorders were appointed; For Penang: McCausland as Recorder and assited by a

Registrar. For Malacca & Singapore: Maxwell as Recorder and

assisted by a Registrar.

Court structure in 1867

Privy Council Supreme Court of Straits Settlements

(abolished the Court of Judicature of Penang, Singapore and Malacca)

Court of Quarter Session (criminal cases only)

Recorders of the former courts became Judges Recorder for Penang became Judge of Penang Recorder for Malacca and Singapore became the

Chief Justice of the Straits Settlements

Courts Ordinance 1878

(i) the Supreme Court of the Straits Settlement; (ii)Courts of Requests at each of the Settlements; (iii)Courts of two Magistrates, at each of the Settlements; (iv) Magistrates’ Court, at each of the Settlements, (v) Coroners’ Courts, at each of the Settlements; and (iv)Justices of the Peace

Civil Law Ordinance 1878

Came into force on 1st January 1879

Section 6 of CLO allows for continuous reception of English commercial law into the Straits Settlements.

Thus, enabling the court to apply English commercial law.

Local circumstances and modification of English Law

Local circumstances and modification of English Law

The Courts of Judicature established in the Straits Settlements were to administer the principles of common law and equity which were then in force in England 'as far as local circumstances will admit'.

Application of English Law must be subject to local circumstances and conditions.

There is a need for modification – cannot be accepted in totality.

Chulas v Kolson

Maxwell R:

It has been repeatedly laid down as the doctrine of our law that its rules

are not applicable to such races when intolerable injustice and

oppression would be the consequence of their application.

Choa Choon Neo v Spottiswoode Maxwell R:

that law is subject, in its application to the various alien races established here, to such

modifications as are necessary to prevent it from operating unjustly and oppressively

on them. Thus, in questions of marriage and divorce, it

would be impossible to apply our law to Mohammedans, Hindus and Buddhists, without

the most absurd and intolerable consequence, and it is therefore held inapplicable to them.

Yeap Cheah Neo v Ong Cheng Neo

Privy Council said: In applying this general principle it has

been held that statutes relating to matters and exigencies peculiar to the local conditions of England, and which are not adapted to the circumstances of the colony, do not become a part of its law, although the general law of England maybe introduced into it

Suitability of English Law in the Straits Settlements

Royal Charter of Justice 1807 “so far as the local circumstance will

admit” “so far as local conditions and

inhabitants will admit” “so far as the several religions,

manner and customs of the inhabitants will admit”

Such modifications were primarily in family law and related subject matters such as marriage, divorce, adoption and succession.

For example, Chinese polygamous marriages were recognised so as to allow secondary wives and their children to be provided for under the Statutes of Distributions.

E.g. The Six Widows Case (1908) Cheang Thye Pin v Tan Ah Loy (1920) Khoo Hooi Leong v Khoo Chong Yeok [1930] AC

346

Cases where local circumstances were recognised

Sahrip v Mitchell – Malay custom on acquiring ownership of land was recognised.

Chulas v Kolson – it was recognised that a married Muslim woman had the capacity to enter into a contract in her own name.

The Six Widows Case (1908) – recognised polygamy among the Chinese.

Cheang Thye Pin v Tan Ah Loy (1920) Khoo Hooi Leong v Khoo Chong Yeok [1930]

AC 346

Case where local circumstances were disregarded

In the Goods of Abdullah Fatimah v Logan Ong Cheng Neo v Yeap Cheah Neo Choa Choon Neo v Spottiswoode

QUESTIONS

QUESTION 1

Explain the significance of the Charter of Justice, 1855 in the transformation of the administration of justice in the Straits Settlements.

QUESTION 2

As Malacca and Singapore were a ‘ceded’ and not a ‘settled’ British colony, the laws of the local inhabitants shall continue to be enforced in the above territories unless modified by the new sovereign.

  With reference to decided cases, discuss

the extent of the application of the unmodified local laws during the British administration of the above two colonies.

QUESTION 3

With regard to the reception of English law into Penang vide the Charter of Justice 1807, analyse critically the court’s decision in the following cases:

  Kamoo v Thomas Turner Bassett (1808) 1 Ky. 1;

Regina v Willans (1858) 3 Ky. 16;  Ong Cheng Neo v Yeap Cheah Neo & Ors (1872)

1 Ky. 326 (PC).

QUESTION 4

It was observed from the analysis of the cases in the Straits Settlements that there was a general reluctance to accommodate local circumstances and the needs of the local inhabitants though judges repeatedly proclaimed the policy of modifying the application of English law to prevent injustice and oppression.

Comment the above statement in light of decided cases.

QUESTION 5

Explain the reasons for the justification for the introduction of the First Charter of Justice 1807 to Penang

QUESTION 6

Do you agree with the argument that the introduction of English Law in the Straits Settlements had reversed totally the application of local law among its inhabitants and that English law was applicable in all matters ?