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LEGAL HISTORY-- THE MALAY STATES Part 2
British intervention into the Unfederated Malay States
Unfederated Malay States (UFMS)
Comprised five British protected states:
Perlis Kedah Kelantan Terengganu Johor
Anglo-Siamese Secret Convention 1897 (Confidential Treaty)
Signed in April 1897 British acknowledged Siam’s control
over Perlis, Kedah, Kelantan & Terengganu.
It was agreed that Siam will not let these states go to any foreign powers without first informing the British.
The Bangkok Treaty 1909
Perlis, Kedah, Kelantan & Terengganu came under British protection.
British Advisors were appointed in each State.
Before British intervention… The law administered was Islamic law. Many of the Johor laws were imported
from the middle east and enforced in the courts of Johor.
The constitution of Johor (1895) and Terengganu (1911) mentioned Islam as the religion of the States.
Kelantan strongly practised Islamic law between 1837 to 1886.
Malay customary laws were also practised.
Informal reception of English Law
British Advisors were appointed Courts were established Judges were appointed British Indian Statutes applied
In contrast with the Federated Malay States, the Unfederated Malay States enjoyed greater autonomy as they were not legally obliged to follow the advice of the British.
But in most circumstances the advice will be followed because the Rulers felt indebted to the British.
Formal reception of English Law
1951 Civil Law (Extension) Ordinance
This Ordinance provides that section 2 of the Civil Law Enactment 1937 is hereby extended to apply to the states of Johor, Kedah, Perlis, Kelantan and Terengganu.
Goh Eng Seong v Tay Keng Seow [1936] MLJ 50
The English land law of fixtures was held to apply to Johor
It was stated that courts in Johor should adopt the practice of English law of fixtures which applies to the Straits Settlements and FMS
LEGAL HISTORY-- THE BORNEO STATES
The Borneo States
Consist of: Sarawak North Borneo (Sabah)
Both were part of Brunei
Sarawak
1839: James Brooke came to Sarawak.
There were internal problems. 1840: Raja Muda Hashim offered him
to become Governor of Sarawak if he is able to overcome the problems in Sarawak.
He managed to overcome the problems
1841: James Brooke became the first British Governor of Sarawak
Sarawak under the White Rajahs
The White Rajahs:
1841-1868: James Brooke 1868-1917: Charles Brooke 1917-1941: Vyner Brooke
Restoration of law and order
Promulgated laws in the form of Orders, notices, proclamations, directions (informal laws).
Promulgated a set of eight laws on criminal matters, trade, labour, collection of State revenue (these laws were codified and named as “Ondong-Ondong”)
Proper administration of native custom: The second Rajah established a Council Negeri
whose function was to identify native custom which are suitable to be codified into law.
Codification of laws: The third Rajah codified the laws into: Orders 1863-1913: decrees issued by the
Rajahs between 1863-1913 Green Book: orders issued from 1927-1933 Red Book: all State orders enacted on and after
1 July 1927
Reception of English Law in Sarawak
Formal reception: Order L-4 1928 (or the Law of Sarawak Ordinance 1928)
“The law of England in so far as it is not modified by orders or other
enactments issues by His Highness the Rajah of Sarawak or with his
advise, and in so far as it is applicable to Sarawak, having regard
to the native customs and local conditions, shall be the law of
Sarawak”.
Sarawak Application of Law Ordinance 1949
Abolished Order L-4 of 1928
Application of Law Ordinance 1949:
“The common law of England, doctrine of equity together with
statutes of general application, as administered or in force in England
at the commencement of this Ordinance, shall be enforced in
Sarawak”.
Kho Leng Guan v Kho Eng Guan The court noted that the laws of Sarawak are
threefold:1. Orders and written laws enacted by or with
the authority of the Rajahs;2. English law so far as it is not modified by
Orders or written laws, and in so far as it is applicable to Sarawak, having regard to native custom and local conditions;
3. Customary law of the indigenous of Sarawak, which includes Mohammaden law and other native law in so far as it is reasonable.
Chan Bee Neo v Ee Siok Choo Issue: whether Chinese customary law was
enforceable in Sarawak. Hedges CJ:
“the customs of the natives of Sarawak, and the natives of Sarawak must belong to one of the races considered indigenous to
the colony and enumerated in the schedule to the Interpretation Ordinance. The Chines
are not indigenous to this country and Chinese customary law is not “native
law”.”
However, Chinese customary law of succession had long been recognised by Sarawak courts even though the Chinese were not regarded as ‘native’ to Sarawak.
Chinese customary laws were applicable so long as they are recognised by legislation but no further.
North Borneo (Sabah)
Was administered by the Sultans of Brunei and Sulu.
The British North Borneo Chartered Company was granted concessions to much of North Borneo in 1865.
1881: came under the administration of the North Borneo Company.
“In the administration of justice by the company to the people of Borneo…careful regard shall always be had to the customs and laws of the class or tribe or native to
which the parties respectively belong, especially with respect to holding,
possession or transfer and disposition of land and goods, and testate or intestate
succession thereto, and marriage, divorce and legitimacy and other rights of property
and personal rights”.
Reception of English law in Sabah
Informal reception: Introduction of courts, appointment
of judges, enactment of laws. Between 1881 to 1902 some 250
laws were enacted in Sabah. E.g. the Native Rights to Land
Proclamation 1889, the Village Administration Proclamation, the Abolition of Poll Tax Proclamation 1902.
Formal reception:Civil Law Ordinance 1938 (similar
to Order L-4 of Sarawak)
The 1938 Ordinance was abolished in 1951 and replaced by the Application of Law Ordinance 1951 (similar to the Application of Law Ordinance 1949 of Sarawak).
--THE END FOR LEGAL HISTORY--
SUMMARY
FMS: Civil Law Enactment 1937 UFMS: Civil Law (Extension) Ordinance
1951These two were abolished upon the establishment of the Federation of Malaya, and replaced by the Civil Law Ordinance 1956.
Sarawak: Application of Law Ordinance 1949
Sabah: Application of Law Ordinance 1951
QUESTIONS
QUESTION 1
"The reply of the Colonial Office ... states that Kelantan is an independent State in the Malay Peninsula and that the Sultan is the sovereign ruler, that His Majesty’s Government does not exercise or claim any rights of sovereignty or jurisdiction over Kelantan, and that the Sultan makes laws, dispenses justice through Courts and, gene rally speaking, exercises without question the usual attributes of sovereignty...."
Duff Development Ltd v Govt of Kelantan & Anor
[1924] AC 797 Comment on the significance of the above judgment in
determining the applicable law in the Malay States.
QUESTION 2
With the appointment of British Residents and Advisors in the Federated and Unfederated Malay States, respectively, legislations were enacted for the establishment of courts, the appointment of English trained judges and the importation of the British Indian statutes into the above States. In many cases, judges and lawyers, having no firm grasp of Islamic law, had enforced the English common law, in the absence of statutory provisions. The primary aim of these measures was to facilitate British trade aside from the exploitation of natural resources of these States. The cumulative effect of the above measures was the marginalization of Islamic law to the realm of personal law.
Discuss.
QUESTION 3
It must be noted that the existence of the Residents and Advisers did not affect in theory the sovereignty of the Sultans but in practice it was the Residents and Advisers that played the central role in governing the state.
Explain the above statement in relation to the position of Malay States and the impact of British colonization on the laws in those states
QUESTION 4
Explain why English law is not the territorial law for the Malay States even after the office of British Resident or Advisor was introduced in those states. In this regards, comment critically the decision of Government of Perak v. A.R Adams [1914] 2 FMSLR 144 and in Re The Will of Yap Kwan Seng [1924] 4 FMSLR 313.