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LEGAL HISTORY -- THE MALAY STATES Part 2

MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

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Page 1: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

LEGAL HISTORY-- THE MALAY STATES Part 2

Page 2: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

British intervention into the Unfederated Malay States

Page 3: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

Unfederated Malay States (UFMS)

Comprised five British protected states:

Perlis Kedah Kelantan Terengganu Johor

Page 4: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

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.

Page 5: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

The Bangkok Treaty 1909

Perlis, Kedah, Kelantan & Terengganu came under British protection.

British Advisors were appointed in each State.

Page 6: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

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.

Page 7: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

Informal reception of English Law

Page 8: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

British Advisors were appointed Courts were established Judges were appointed British Indian Statutes applied

Page 9: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

 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.

Page 10: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

Formal reception of English Law

Page 11: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

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.

Page 12: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

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

Page 13: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

LEGAL HISTORY-- THE BORNEO STATES

Page 14: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

The Borneo States

Consist of: Sarawak North Borneo (Sabah)

Both were part of Brunei

Page 15: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

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

Page 16: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

Sarawak under the White Rajahs

The White Rajahs:

1841-1868: James Brooke 1868-1917: Charles Brooke 1917-1941: Vyner Brooke

Page 17: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

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”)

Page 18: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

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

Page 19: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

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”.

Page 20: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

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”.

Page 21: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

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.

Page 22: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

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”.”

Page 23: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

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.

Page 24: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

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.

Page 25: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

“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”.

Page 26: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

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.

Page 27: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

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).

Page 28: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

--THE END FOR LEGAL HISTORY--

Page 29: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

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

Page 30: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2
Page 31: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

QUESTIONS

Page 32: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

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.

Page 33: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

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.

Page 34: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

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

Page 35: MALAYSIAN LEGAL SYSTEM Legal History THE MALAY STATES Part 2

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.