4.
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.
5.
Perlis, Kedah, Kelantan & Terengganu came
under British protection.
British Advisors were appointed in each
State.
6.
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.
7.
8.
British Advisors were appointed
Courts were established
Judges were appointed
British Indian Statutes applied
9.
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.
10.
11.
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.
12.
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
15.
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
17.
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”)
18. 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
19.
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”.
20.
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”.
21. 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.
22. 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”.”
23.
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.
24.
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.
25. “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”.
26.
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.
27.
Formal reception:
Civil Law Ordinance 1938 (similar to Order L4 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).
28.
29. FMS: Civil Law Enactment 1937
UFMS: Civil Law (Extension) Ordinance 1951
These 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
30.
31.
32.
"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.
33. 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.
34.
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
35.
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.
