LEGAL HISTORY-- THE MALAY STATES Part 1

Intro

While the Straits Settlements were colonies under direct British rule, the rest of the Malay States were ruled by Sultans who were embroiled in various succession disputes in their respective states.  In the tin-rich state of Perak, succession disputes became intertwined with disputes between Chinese secret societies for possession of the rich tin deposits.   

Malay States

Federated Malay State -- Perak, Selangor, Negeri Sembilan

& Pahang

Unfederated Malay States -- Perlis, Kedah, Kelantan,

Terengganu & Johor

Malay States were Sovereign States

Cases: Mighell v Sultan of Johor The Pahang Consolidated Co Ltd v

The State of Pahang Duff Development Ltd v Gov of

Kelantan Anchom binte Lampong v PP

Mighell v Sultan of Johor

Breach of promise to marry Action was filed in a district court in

London Action was struck out because the

defendant was a ruler of an independent state, and therefore immune from legal proceedings.

The Pahang Consolidated Co Ltd v The State of Pahang

Resp. leased out a large piece of land for tin mining for 77 years.

In 1931, a law was enacted which adversely affected their tin mining rights.

Appl. Argued that they are not to be affected by the new law and are entitled to damages from Resp.

Duff Development Ltd. V Gov of Kelantan

Privy Council acknowledged Kelantan as a sovereign State

What was the law applicable in the Malay States before British intervention?

Shaik Abdul Latif v Shaik Elias Bux

Edmonds JC:Before the first treaty [the Pangkor

Treaty 1874] the population of these State [FMS] consisted almost solely of

Mohammedan Malays with a large industrial and mining Chinese

community in their midst.The only laws at that time applicable

to Malays was Mohammedan modified by local custom

Ramah v Laton

Thorne J said to the effect that Muslim law is not foreign law, it is the law of the land and the local law is a matter of which the court must take judicial notice.

British intervention into the Federated Malay States

British intervention: The Residential System

British intervention in these disputes consolidated British political power in the Malay states.

Treaties were entered into, whereby, in return for British protection, it was agreed that the Sultan “receive and provide a suitable residence for a British officer, to be called a Resident, who shall be accredited to his court, and whose advice must be asked and acted upon all questions other than those touching upon Malay religion and custom.”

Perak

1873: Death of Raja Ali (Sultan of Perak)

Who will become the new Sultan? Raja Abdullah or Raja Ismail?

Raja Abdullah became Sultan with the help of the British.

In return, a British Resident was appointed -- JWW Birch.

Selangor

Many problems Civil war in Klang Piracy 1875: British forced Sultan Abdul

Samad to sign an agreement which included the appointment of a British Resident – JG Davidson

Pahang

1888: A British shopkeeper was murdered near the Sultan’s palace.

British used this issue to compel the Sultan to accept a British Resident – JP Rodger

Negeri Sembilan

1872: Dato Kelana Sendeng dies The state was divided into two and

ruled by two Malay Chiefs: Dato Kelana Sayed Abd Rahman, and Dato Bandar Kulop Tunggal British suppoerted Dato Kelana

Sayed Abd Rahman 1889: A British Resident was

appointed – Martin Lister.

Formation of the FMS 1895

With the signing of the Treaty of Federation 1895, four states – Perak, Selangor, Negeri Sembilan and Pahang became “Protected States” or more commonly known as the Federated Malay States (FMS).

British Residents came under the Resident General who was made accountable to the Governor of the Straits Settlements.

Informal Reception of English Law

Informal Reception

The Residential System By appointing a British Resident in

each State

Resident?

Advisor to the Sultan on all State matters except matters pertaining to custom of the Malays and religion.

As advisors, the Residents introduced many British Indian statutes into the FMS.

E.g. Penal Code, Contracts Ordinance, Criminal Procedure Code, Civil procedure Code

Courts and appointment of judges

Courts were established and judges were appointed

Terrel CJ, Mill CJ, Woodward JC, Thorne J, Edmonds JC

Gov of Perak v Adam

A tort case involving unlawful obstruction of land belonging to plaintiff.

Woodward JC: “In dealing with cases of tort, this

court has always turned for guidance, as a fundamental principle, to English decisions”.

Motor Emporium v Arumugam

Terrel CJ: “The courts of the FMS have on

many occasions acted on equitable principles, not because English rules of equity apply but because such rules happen to conform to the principles of natural justice”.

Mohamed Gunny v Vadvang Kuti

Tort Court enforced English principles.

Haji Abdul Rahman v Mohamed Hassan

Loan transaction, involved a piece of land as security.

On appeal to Privy Council, Lord Dunedin:

“The learned judge…has been too much swayed by the doctrine of English equity and not paid sufficient attention to the fact that they were here dealing with a totally different land law…”

Leonard v Nachiappy Chetty Reay CJ: “Before reliance can be placed on English

decisions, particularly decision on points of procedure, it is necessary in the first instance to examine carefully our local law and to ascertain what it is and in what respects it resembles or differs from the English law. This seems a self evident proposition, but it is nevertheless too often over-looked by counsel.’

Formal Reception of English Law

Formal reception

English law was formally introduced into FMS in 1937 by virtue of the Civil Law Enactment 1937.

The 1937 Civil Law Enactment

Section 2: “Save so far as other provision has

been made or may hereafter be made by any written law in force in the Federated Malay States, the common law of England, and the rules of equity, as administered in England at the commencement of this Enactment [12 March 1937] shall be in force in the FMS”

Proviso: Provided always that the said

common law and rules of equity shall be in force in the FMS so far only as the circumstances of the FMS and its inhabitants permit and subject to such qualifications as local circumstances render necessary.

Effect of CLE 1937

English common law and rules of equity become the governing law in civil, commercial, criminal matters replacing custom and religious law.

Local laws (religious and customary law) was limited to personal matters i.e. family matters and inheritance.