Introduction of English Law into the Malay States

Federated Malay States

  • Independent/sovereign states with proper legal systems.

  • British intervention driven by:

    • Political reasons: Establishing supremacy.

    • Economic reasons: Industrial revolution, raw materials (sugar, tea, spices, rubber).

Perak

  • 1874: Raja Ali's death, succession dispute between Raja Abdullah and Raja Ismail.

  • Raja Abdullah sought British help. British helped Raja Abdullah.

  • British intervention led to the Pangkor Treaty.

    • Raja Abdullah made Sultan.

    • JWW Birch appointed as the first British resident.

Selangor

  • Internal problems, civil war in Klang, piracy.

  • Sultan Abdul Samad forced to sign an agreement for a British resident.

  • 1875: J.G. Davidson appointed as the first British resident of Selangor.

Pahang

  • 1888: Murder of British shopkeeper Go Hui.

  • British compelled Sultan to accept a British resident.

  • J.P. Roger appointed as the first British resident in Pahang.

Negeri Sembilan

  • 1872: Datuk Lena Klaerner Sending's death, state divided.

  • Internal clashes in Sungai Ujong related to tax collection.

  • British supported Datuk Kelana Said, and Martin Lister was appointed as the British resident in Negeri Sembilan in 1889.

Federated Malay States Formation

  • 1895: Perak, Selangor, Negeri Sembilan, and Pahang grouped together.

  • Residents from each state under the control of the resident general.

  • Resident general accountable to the governor of the Strait Settlement.

Introduction of English Law

  • Two modes: Informal reception and formal reception.

Informal Reception

*British Residence
*Restore peace, establish law and order.
*Develop state resources for exploitation and utilization.
*Set up system for controlling and collecting state revenues

  • British Residents:

    • Task: To restore peace and establish law and order.

    • Task: Develop resources of the state, exploit and utilize wealth.

    • Task: to Systemize controlling and collecting state revenues.
      *Adviser to the Sultan on all state matters except Malay custom and religion.
      *J.W.W. Birch Murdered because he interfered with Malay religion and customs.

    • Adviser to the Sultan on all state matters except Malay customs and religion.

  • Adoption of British Indian statutes:

    • Penal Code: Introduced in India, brought to the Strait Settlement, then to Perak.

    • Contracts Ordinance, Criminal Procedure Code, Civil Procedure Code, Evidence Ordinance: Introduced by British in India, brought into the strict settlements and then into the federated medistics.

  • Customary landlord law replaced with the Torrens system:

    • Registration is a prerequisite to claim ownership of land.

    • Case of Sharip v. Mitchell: Malay customary law replaced by the Torrens system.

  • Courts were introduced.

  • Judges were appointed (Carroll CJ, Bell CJ, Woodward JC, Thorne J, Edmond JC, Ray JC).

Cases from Federated Malay States

  • Government of Perak v. Adam:

    • Case involving tort, unlawful obstruction of land.

    • Judge Woodward JC: Court turned to English decisions for guidance.

    • Leading cases in tort law are from the UK (civil wrongs, e.g., defamation, trespass).

  • Mottar v. Horrocks:

    • Case involving execution of judgment with prohibition order.

    • Darial CJ: Courts acted on equitable principles, confirming principles of natural justice.

    • Equitable principles are universal and not only catered for the society in UK, but also can be enforced somewhere else.

  • Muhammad Ghani v. Wadhwa Gouthi:

    • Case dealing with tort, court enforced English rules/principles.

  • Haji Abdul Rahman v. Mohamed Hassan:

    • Case involving loan transaction in 1895 with land mortgaged as security.

    • If the loan is paid completely within six months land will go back to the debtor.

Mortgage≠ChargeMortgage \neq Charge

  • Privy Council allowed the application because the creditor did not obtain legal right but contractual right.

    • Lord Dunedin criticized the lower court for relying on English law and not the local law (Torrens system).

  • Leonel v. Nachiappa:

    • Ray CJ noted that counsel relied chiefly on English law and were unfamiliar with local law.

    • The judge advised to identify the local law before relying on English law and comparing them.

Formal Reception

  • Civil Law Enactment 1937: *Section 2: Common law of England and rules of equity as administered in England at the commencement of this enactment, that is 12/1937, shall be enforced in the Federated Malay States

    • Section 2: Subject to local statutes, common law of England and rules of equity enforced in Federated Malay States.

    • Law applicable: common law and rules of equity.

    • The word “shall be enforced” means that the law is binding

    • Proviso: Common law and equity enforced only as far as suitable to local circumstances, inhabitants, religion, custom.

      • The common law and rules of equity will be enforced in the Federated Malay States only as far as they are suitable to the local circumstances considering also the the inhabitants, religion, custom, and so Sorry

Common Law v. Rules of Equity

  • Common law: *Judgment law. Enforced through doctrine of stare decisis

    • Judgment law enforced through stare decisis.

    • Principle from Donoghue v. Stevenson: Manufacturer owes a duty to ensure goods are safe.

  • Rules of equity: *Developed by the court of chancery

    • Developed by the Court of Chancery.

    • Not as rigid as common law courts.

    • Guided by principles of natural justice and fairness.

    • Prepared to give any remedy deemed necessary (e.g., injunctions, specific performance).

  • In our civil current law civil law act section three subsection two when there is conflict between common law and equity on the same matter, equity shall prevail.

Court Enactment 1905

*Hierarchy of courts introduced effective 1905

  • Hierarchy of courts:

    • Privy Council (London).

    • Supreme Court of the Federated Malay States.

    • Magistrate Court (First Class and Second Class).

    • Court of Kadi and Assistant Kadi (family matters involving Muslims).

    • Panghulu's Court.
      *1948 Ordinance replaced the court enactment
      *Kadi court removed and placed with the state jurisdiction

The Unfederated Malay States

*padeliska daklantan tantamganu johol

  • Reasons for intervention make sure Siam to remain independent, not to expand its territories into Malay states.

  • Fear of Burma's expansion into Siam France into Indochina. Germans had attempted to occupy Langkawi, United States interned nano. All this was in fact a threat to the British appearance or presence in the Federated Malay State.

  • Anglo Siamese secret convention or Confidential Treaty 1897 acknowledge or recognize Syam's control over Fadlis Kadak Lantan Ternganu.
    *Syam will not let any of these states to any four other foreign powers without first notifying the British.

  • 1909: Anglo-Siam Treaty (Bangkok Treaty) brought Perlis, Kedah, Kelantan, and Terengganu under British control.
    *Four states wanted development similar to federated states

  • Advisers were appointed:
    Perlis- Mito Frost
    *Gadda-W. G. Maxwell
    *Kalantan-G. S. Manson
    *Trinidad-W. I. Conley

    • Johor joined in 1914, WJF Williamson appointed as adviser.
      In the federated malaise, it was British resident. In the unfederated malaise, it was adviser
      *British recognized that the states had autonomy and absolute power
      *The job of the advisor was only consultant non-Binding

  • Laws applicable before British: Islamic law, customary law.

Introduction of English Law

  • Informal reception: Adviser's advice (non-binding), courts introduced, judges appointed, British Indian statutes extended.
    *Courts were introduced.
    *The court structure was similar to the Federated Malay States
    *Judges were appointed and British Indian statutes, which was introduced into the federated malistics, was extended to also cover the unfederated malistics or enforced also the unfederated malistics.

  • Formal reception:
    *Civil Law Extension Ordinance 1951 section 2 of the civil law enactment 1937, was extended also to cover the Infederated Malay States, namely Johok, Perdapo, Lisklenten, Terengganu.

    • Civil Law Extension Ordinance 1951 extended Section 2 of Civil Law Enactment 1937 to Johor, Kedah, Perlis, Kelantan, Terengganu.

Case: Unfederated Melay State

*Gov and Siong against Tai Keng Siew
*Involving English land law on fixture, applicable in Johor
*Should adopt practice of English law on fixture

*Gov and Siong against Tai Keng Siew: Case involving English land law on fixture, applicable in Johor.