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MALAYSIAN LEGAL SYSTEM Legal history THE MALAY STATES PART 1
1.
2.
While the Straits Settlements were colonies
under direct British rule, the rest of the Malay
States were ruled by Sultans who were
embroiled in various succession disputes in
their respective states. In the tin-rich state of
Perak, succession disputes became
intertwined with disputes between Chinese
secret societies for possession of the rich tin
deposits.
3.
Federated Malay State
-- Perak, Selangor, Negeri Sembilan & Pahang
Unfederated Malay States
-- Perlis, Kedah, Kelantan, Terengganu &
Johor
4.
Cases:
Mighell v Sultan of Johor
The Pahang Consolidated Co Ltd v The State of
Pahang
Duff Development Ltd v Gov of Kelantan
Anchom binte Lampong v PP
5.
Breach of promise to marry
Action was filed in a district court in London
Action was struck out because the defendant
was a ruler of an independent state, and
therefore immune from legal proceedings.
6.
Resp. leased out a large piece of land for tin
mining for 77 years.
In 1931, a law was enacted which adversely
affected their tin mining rights.
Appl. Argued that they are not to be affected
by the new law and are entitled to damages
from Resp.
9. Edmonds JC:
Before the first treaty [the Pangkor Treaty 1874]
the population of these State [FMS] consisted
almost solely of Mohammedan Malays with a
large industrial and mining Chinese community
in their midst.
The only laws at that time applicable to Malays
was Mohammedan modified by local custom
10.
Thorne J said to the effect that Muslim law is
not foreign law, it is the law of the land and
the local law is a matter of which the court
must take judicial notice.
11.
12.
British intervention in these disputes
consolidated British political power in the Malay
states.
Treaties were entered into, whereby, in return
for British protection, it was agreed that the
Sultan “receive and provide a suitable residence
for a British officer, to be called a Resident, who
shall be accredited to his court, and whose
advice must be asked and acted upon all
questions other than those touching upon
Malay religion and custom.”
13.
1873: Death of Raja Ali (Sultan of Perak)
Who will become the new Sultan? Raja
Abdullah or Raja Ismail?
Raja Abdullah became Sultan with the help of
the British.
In return, a British Resident was appointed -JWW Birch.
14.
Many problems
Civil war in Klang
Piracy
1875: British forced Sultan Abdul Samad to
sign an agreement which included the
appointment of a British Resident – JG
Davidson
15.
1888: A British shopkeeper was murdered
near the Sultan’s palace.
British used this issue to compel the Sultan to
accept a British Resident – JP Rodger
16.
1872: Dato Kelana Sendeng dies
The state was divided into two and ruled by
two Malay Chiefs:
Dato Kelana Sayed Abd Rahman, and
Dato Bandar Kulop Tunggal
British suppoerted Dato Kelana Sayed Abd
Rahman
1889: A British Resident was appointed –
Martin Lister.
17.
With the signing of the Treaty of Federation
1895, four states – Perak, Selangor, Negeri
Sembilan and Pahang became “Protected
States” or more commonly known as the
Federated Malay States (FMS).
British Residents came under the Resident
General who was made accountable to the
Governor of the Straits Settlements.
20.
Advisor to the Sultan on all State matters
except matters pertaining to custom of the
Malays and religion.
As advisors, the Residents introduced many
British Indian statutes into the FMS.
E.g. Penal Code, Contracts Ordinance,
Criminal Procedure Code, Civil procedure
Code
22.
A tort case involving unlawful obstruction of
land belonging to plaintiff.
Woodward JC:
“In dealing with cases of tort, this court has
always turned for guidance, as a fundamental
principle, to English decisions”.
23.
Terrel CJ:
“The courts of the FMS have on many
occasions acted on equitable principles, not
because English rules of equity apply but
because such rules happen to conform to the
principles of natural justice”.
25.
Loan transaction, involved a piece of land as
security.
On appeal to Privy Council, Lord Dunedin:
“The learned judge…has been too much
swayed by the doctrine of English equity and
not paid sufficient attention to the fact that
they were here dealing with a totally different
land law…”
26.
Reay CJ:
“Before reliance can be placed on English
decisions, particularly decision on points of
procedure, it is necessary in the first instance
to examine carefully our local law and to
ascertain what it is and in what respects it
resembles or differs from the English law.
This seems a self evident proposition, but it is
nevertheless too often over-looked by
counsel.’
27.
28.
English law was formally introduced into FMS
in 1937 by virtue of the Civil Law Enactment
1937.
29.
Section 2:
“Save so far as other provision has been
made or may hereafter be made by any
written law in force in the Federated Malay
States, the common law of England, and the
rules of equity, as administered in England at
the commencement of this Enactment [12
March 1937] shall be in force in the FMS”
30.
Proviso:
Provided always that the said common law
and rules of equity shall be in force in the FMS
so far only as the circumstances of the FMS
and its inhabitants permit and subject to
such qualifications as local circumstances
render necessary.
31.
English common law and rules of equity
become the governing law in civil,
commercial, criminal matters replacing
custom and religious law.
Local laws (religious and customary law) was
limited to personal matters i.e. family
matters and inheritance.
