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MALAYSIAN LEGAL SYSTEM Legal history STRAITS SETTLEMENTS PART2
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MALAYSIAN LEGAL SYSTEM Legal history STRAITS SETTLEMENTS PART2

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  • 1.        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.
  • 2.    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.
  • 3.    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 …’
  • 4.  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”. 
  • 5.  The Charter introduced the General Law of England (as it existed in 1826) into the Straits Settlements i.e. Penang, Malacca and Singapore.
  • 6.   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.
  • 7.   Rodyk v Williamson Malkin R held that with the introduction of the Charter, it supersedes Dutch law and the law introduced was English law.
  • 8.  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.
  • 9.     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”.
  • 10.  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.
  • 11.     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
  • 12. (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
  • 13.  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.
  • 14.  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.
  • 15.  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. 
  • 16.  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. 
  • 17. 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
  • 18.     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”
  • 19.  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 
  • 20.      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
  • 21.     In the Goods of Abdullah Fatimah v Logan Ong Cheng Neo v Yeap Cheah Neo Choa Choon Neo v Spottiswoode
  • 22.  Explain the significance of the Charter of Justice, 1855 in the transformation of the administration of justice in the Straits Settlements.
  • 23.  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.
  • 24.  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).
  • 25.   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.
  • 26.  Explain the reasons for the justification for the introduction of the First Charter of Justice 1807 to Penang
  • 27.  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 ?