malaysia legal history

1. MALAYSIAN LEGAL
HISTORY
Topic 1
Ref: Wu Min Aun (2005) The Malaysian Legal System (Chapter 1)

2. Lecture outline
◦ Introduction
◦ Malaysia up to 1824
◦ The Straits Settlement & the introduction of English Law
◦ The Malay States
◦ Sabah & Sarawak

3. Past influences that make up the
legal system
Pre-Malacca Sultanate:
early settlers
Malacca Sultanate & the
coming of Islam
Other influences
(Srivijaya, Majapahit –
Buddhism, Hindu)
Portuguese & Dutch
periods
Malaysia up
to 1824

4. Malacca Sultanate: Admin of Law
BENDAHARA
TEMENGGUNG
SYAHBANDAR
Welfare of foreigners
residing in the State
•Apprehending
criminals
•Maintaining prisons
•Keeping peace
•Administer law
•Exercise both
political & judicial
function

5. Malacca Sultanate: the law
Undang-Undang
Melaka
(Hukum Kanun
Melaka)
Cover criminal & civil matters
Some aspects of Islamic law
Undang-Undang Laut
Melaka
Rules & regulations to be observed
at sea.

6. Malacca: Portuguese & Dutch
PORTUGUESE DUTCH
•1511 – 1641
•Magistrate: settle civil
dispute & try criminal cases
•Presumed: Portuguese law
•1641–1795 & 1801-1807
•Magistrate: settle civil
dispute & try criminal cases
•Presumed: Dutch law
Portuguese & Dutch laws made relatively little impact on the Malaysian
contemporary legal system.

7. BRITISH COLONIZATION &
INFLUENCE ON THE LEGAL
SYSTEM

9. The Straits Settlement:
How British secured them?
PENANG
1786
Francis Light obtained Penang fr Sultan of
Kedah on assurance to protect Kedah against
Siam
SINGAPORE
1819
1819: Stamford Raffles recognised the elder son
of Sultan Mahmud as the rightful Sultan in
exchange of permission to establish factories.
1824: treaty – S’pore ceded to British by Johor.
MALACCA
1824
Acquired from Dutch in exchange of Bencoolen
by Anglo-Dutch Treaty

10. PENANG & INTRODUCTION
OF ENGLISH LAW
1786 - 1807

11. SUPERINTENDENT
MAGISTRATE
SECOND
ASSISTANT
LOCAL HEADMEN
•Francis Light: first
•Authority: “To preserve good order
as well as you can”
•Jurisdiction over inhabitant only
NOT British subjects
•No power to carry death sentence
•Deal with petty cases among local
inhabitants
•Keep registers of marriage, birth,
slaves & sales of land & houses
Try more important / serious cases
Decisions had to be approved by SI
The judicial hierarchy in
Penang: 1786 – 1807

12. FORMAL INTRODUCTION OF
ENGLISH LAW IN PENANG
ROYAL CHARTER OF JUSTICE 1807
•Established: The Court of Judicature of Prince of
Wales’ Island
•Jurisdiction: civil, criminal & ecclesiastical matters.
•Interpreted by courts as introducing the Law of
England as it stood in 1807 subject to local conditions
& circumstances. (Kamoo v Basset 1808; Ong Cheng Neo v Yeap Cheah Neo
[1872]

13. SINGAPORE: 1819-1824
• The law applied: British law subject to local
circumstances
• 12 magistrates (British merchants): were appointed in
1823 to try petty civil & criminal cases
• Caused legal confusion: lack of knowledge of local law
& custom

14. MALACCA:
•Law applied at the time of transfer of Malacca from Dutch to British (1824):
•Malay customary law
•Islamic law
•Customary law of other non-Malay inhabitants
•Certain Dutch laws
•There were uncertainties as to the extent of British law to be applied in
Malacca

15. ROYAL CHARTER OF JUSTICE 1826
•Following the establishment of the Straits Settlements
•The RCJ1826 established: The Court of Judicature of
Prince of Wales’ Island, Singapore & Malacca
•Jurisdiction: civil, criminal & ecclesiastical matters.
•Governing law: Law of England as it stood in 1826 subject
to local conditions.
•One professional judge (“Recorder”) assisted by lay
judges

16. ROYAL CHARTER OF JUSTICE
1855
◦ Re organisation of whole court system
◦ Additional Recorder 4 all the states
◦ Separate registrar appointed for each of 2
divisions of court.

17. Further change in the judiciary:
after 1867
◦ Recorder of S’pore – Chief Justice of SS
◦ Penang Recorder – Judge of Penang
◦ Appointment of Law Officers of the Crown
◦ Attorney General
◦ Solicitor General
◦ In 1868: the Court of Judicature was abolished
◦ Replaced by Supreme Court of the SS

18. Further change: 1873
◦ Supreme Court: 4 judges:
◦ Chief Justice
◦ Judge of Penang
◦ Senior Puisne Judge
◦ Junior Puisne Judge
◦ The Court of Quarter Sessions
◦ criminal court
◦ Presided over by Senior & Junior Puisne Judges in
S’pore & Penang respectively
◦ Court of Appeal

19. THE MALAY STATES & THE
INTRODUCTION OF ENGLISH
LAW

20. Malay States: political hierarchy &
the law ◦ Islamic law modified by
Malay customary practices
(adat)
◦ Adat Temenggung
◦ Adat Perpateh
E.g. Digests of laws
1.Ninety-Nine Laws of Perak
2.Pahang Digests 1596
SULTAN
CHIEF DISTRICTS
VILLAGE HEADMEN
CONSTABLE

21. Intro of English Law to Malay States
RESIDENTIAL SYSTEM
PERAK
SELANGOR PAHANG
N SEMBILAN
1888
Federated Malay States
1895

22. Federated Malay States
High Commissioner of Federation
(Governor of Straits Settlements)
Resident-General
4 Residents
Sultan
The advice had to be asked & acted upon in
all matters of admin & revenue
except Malay religion & custom

23. Other Malay States
◦ Johor, Kedah, Perlis, Kelantan, Terengganu:
◦ British Adviser to each state
◦ Higher level of autonomy compared to FMS.

24. The British rule over Malay States
◦ Theoretically independent & ruled by their
sovereigns (Sultan)
◦ Governing laws:
◦ Malay: Customary laws & Islamic laws
◦ Non-Malay: own personal laws & English law
(British subjects)
◦ English law imported through:
◦ Direct legislation
◦ Legal profession

25. Formal introduction of English
law to Malay States
Civil Law
Enactment 1937
Civil Law (Extension)
Ordinance 1951
Federated Malay States Other Malay States
CIVIL LAW ORDINANCE 1956

26. Other
sections of
the
populations
• Practised their own laws – recognised by
the British admin
• Kepala (headman) – to settle disputes
• 1874: Chinese Affairs officers
• 1893: Recognition of Chinese Law (Perak
Order in Council)
• !926: FMS Distribution Enactment
Chinese
• Originally labourers in plantations &
public service
• Affairs under Malayan Controller of
Labour
• Governed by their own laws
Indian
• ‘Original people’ – the earliest settlers
• Governed by their laws
• Under protection of the British
government prior to independence
Orang Asli (Aboriginal peoples)

27. Sabah & Sarawak
◦ Initially under private colonial rules
◦ White Rajahs – began with James Brooke installed as Governor in 1841 by
Raja Muda Hashim in exchange of assistance in suppressing the uprising
against Pengiran Mahkota.
◦ James introduced the Code of Law in 1842 but retained the custom of local
people.
◦ 1888: Britain declared protectorate over Brunei, Sabah & Sarawak
◦ Formal reception of English law (with regard to native laws):
◦ Law of Sarawak Ordinance 1928
◦ Sabah Civil law Ordinance 1938
◦ 1946: Sabah & Sarawak were ceded to the Crown – colony.
◦ 1951: Supreme Court of Sarawak, North Borneo & Brunei was established –
including the Court of Appeal & High Court.

28. Population & the legal pluralism
https://www.ehm.my/publications/articles/malayas-early-20th-century-population-change