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The Influence of English Law in Malaysia Legal System

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Arifin Bil Ikhtiar

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Transcript of The Influence of English Law in Malaysia Legal System

Influence of English Law in Malaysia Legal System

Arifin Bahtiar/ G1225297

The Straits Settlements
The British period began with the occupation of Penang in 1786; Singapore 1819; Melaka 1824

The Straits Settlements were the collection of four distinct colonies, each acquired for its naval and commercial possibilities and opportunities. The respective settlements were Penang (1786), Malacca (1795), Singapore (1819) and finally Labuan (1907).

They each allowed for commercial and naval shipping to take advantage of the rich spice and trading opportunities in the area. They were in no way contiguous, rather they were linked by the sea lanes as they converged on this natural choke point. They were initially controlled by the English East India Company before being transferred to the Crown.

The English East India Company had long been desperate to try and muscle into the commercial territories dominated by the Dutch East India Company. Throughout the Seventeenth and much of the Eighteenth Century the English had been successfully kept at bay. However, the success of their Indian colonies and the relative decline of the Dutch Company meant that the English were again keen to muscle their way into the lucrative spice islands.

Captain Francis Light identified the port of Penang as being a suitable harbour for ships interested in trading in the area from 1786. By 1791 an agreement had been signed with the Sultan of Kedah and the island was dubbed Prince of Wales Island and ceded to the British. In 1800, more land was added to the territory from the mainland. This port would become the starting point of what grow into the Straits settlements. The all but deserted island soon attracted migrant workers from neighbouring Malaya, Burma, China and India to take advantage of the opportunities for loading and unloading the ships with their valuable cargoes.

The port of Malacca would be seized by the Royal Navy thanks to the disruption caused by the Napoleonic and Revolutionary Wars. The Dutch were usurped by the French early on in the war and the British felt little option but to seize Dutch overseas territories in order to forestall them falling into French hands. When the war ended, the Dutch asked for the colony to be returned (along with others) but the issue was only finally settled in 1824 with the Anglo-Dutch Treaty of London which formally swapped it for Benkulen on the island of Sumatra.

Singapore was a colony built from scratch by Sir Thomas Stamford Raffles on behalf of the East India Company. He had long been searching for a suitable port only to be thwarted by the local rulers, often with Dutch encouragement to do so. In 1819, Raffles sidestepped the intransigent Dutch backed ruler of Abdul Rahman over the island of Singapore and installed Rahman's brother, Hussein, in his place in order to accept and legitimate his purchase of the land there. The Dutch protested vehemently on behalf of their client, but the London directors of the East India Company chose to look the other way and Raffles got the port that he so desperately wanted.

These three separate commercial posts would form the foundation of the Straits Settlements. They officially came into being in 1826 largely as a result of the Anglo-Dutch Treaty which recognised British pre-eminence in the North and West of the archipelego and Dutch to the South and East. Originally, Penang was designated as the primary settlement, but this was soon transferred to Singapore in 1832 as it became clear that Singapore was becoming the more important trading entrepot.

In 1833, the East India Company was stripped of its monopoly of the trade from China. This seriously reduced Company interest in running the settlements as the settlements did not have a large enough population of farmers and landowners to extract taxation from. The settlements would pass to the governor-general of India in 1851 which itself was transferred to British rule as a result of the 1857 Mutiny. In 1867, the settlements were formally turned into a Crown Colony to be administered from the Colonial Office in London.

Labuan was added to the straits settlements much later. It had been ceded to the British in 1846 by the Sultan of Brunei in order to help suppress piracy in the area. It was later passed to North Borneo for administration before being moved to the Straits Settlements in 1907.

All parts of the Straits settlements were occupied by the Japanese in World War Two. When the war finished the Straits Settlements were broken up as various arrangements were made to link these colonies with the Malayan States.
Malay States
Straits Settlements
Borneo States
Malay States
Conclusion
Course Outline
1. Introduction of English Common Law
2. Reception of English Law in Malaysia
3. Manner of receiving English law; Present day in Malaysia
4. Application of English Law
5. Conclusion
English Law is part of Malaysian Law
Manner of receiving English law; Present day in Malaysia
English law has been received in Malaysia both,
a. Expressly, as provided in Section 3 (1) of the Civil Law Act 1956;
b. Impliedly, when the court decides cases according to "justice and right".

General Application of English Law
; Section 3 (1) of the Civil Law Act 1956 provides:

Save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia, the Court shall:

a) in West Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on 7th day of April 1956

b) in Sabah, apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on 1st day of December 1951

c) in Sarawak, apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on 12th day December 1949

Introduction of English Common Law
Definition of English Law;

In Article 160 of the federal Constitution includes 'the common law in so far as it is in operation in the federation or any part thereof'.

Section 3, Civil Law Act (CLA) 1956 (Revised 1972) ' the common law of England and the rules of equity and in prescribed circumstances, English statutes.

The application of the English common law and rules of equity (and in Sabah and Sarawak, English statutes of general application) in Malaysia is conditional, i.e. it is subject to three conditions:

a) absence of local statutes/legislation covering the same matter;
b) cut off-dates; and
c) suited to local circumstances.

As the reception of English law in the Malay States,R.J.Wilkinson said;
“There can be no doubt that Moslem Law would have ended by becoming the law of Malaya had not British law stepped in to check it”.

Malay adat is applied to the Malays. The non-Malays were governed by their personal laws or if they were British subjects,EnglishLaw. These Laws continued to apply,subject to modifications made by specific legislation,until the formal reception of the English Law.The formation of the Federated Malay States showed that the Ruler of the states started to accept the British intervention in Malaysia.Section 2(1) of the Civil Law Enactment 1937,give the permission to accept of the English law provided that the inhabiatants permit and subject to such qualifications as local circumstances render necessary.

The Unfederated malay States started to accept the English Law when the English Law formally received and applied by the virtue of Civil Law(Extension) Ordinance 1951 but indirectly the Unfederated Malay States had accepted the English Law before those dates as mentioned by Edmonds J.C. in Shaik Abdul LatifBux v Shaik Alias Bux;

“The British treaties with the Ruler of these States merely provided that the advice of the British administrators should be followed and in accordance with such advice Courts have been established by Enactment,British judges appointed,and a British administration established..”.

Common law and the rulers of equity were applied in the Straits Settlement by virtue of the three Charters of Justice. The Charters,however,did not not apply to the Malay States.
With the introduction of the Residential System in Perak by virtue of the terms stated under Pangkor treaty 1874,the Malay Sultans were forced to establish the English-style courts and the English judges were appointed.With such a judicial “apparatus”inplace,it was therefore only a matter of time that the common law and equity are applied.The Civil Law Enactment No.3 of 1937 had been enacted,and this was the first step towards the enforcement of the English Legal System in the Malay States.The application of the said ordinance was only for the Federated Malay States,but on 31 December 1951,it was extended to Penang and Malacca.

English Law was introduced informally and indirectly through the Residential System in two ways:
• The Enactment,on the advice of the British administrators,of a number of specific legislation modelled on Indian Legislation which,inturn,was based on the English Law.
• The decision of the courts established by the British administrators.The higher rank of the judiciary were mostly filled by English or English-trained judges who naturally turned to English Law whenever they were unable to find any local law to apply to new situations,particularly of a commercial character ,caused by the very fact of British influences.

Common Law
The Common Law is the body of rules developed by the old common law courts which had applied in England before the Norman Conquest in 1066
The common law is the unwritten or unenacted law of England; The law based solely on decisions of the courts

Equity

Discretionary system of justice when faced with petitions alleging injustice suffered at Common Law; Precepts of Fairness and conscience
Reception of English Law in Malaysia
The story of the development of Malaysian law after the arrival of the British
Straits Settlements
Malay States
Borneo States
Straits Settlement
Malaya States
Borneo States
Sarawak
The formal reception of English law took place in Sarawak only in 1928 when the Law of Sarawak Ordinance of that year provided the statutory authority on the source of law to be applied by courts. It stated that the Law of England, in so far as it was not modified by Orders of the Rajah (i.e. Brooke) and so far as it was applicable having regard to native customs, was to be the law of Sarawak.

North Borneo/Sabah
The legislative introduction of English law came in 1938 through the Civil Law Ordinance 1938. It provisions, though more elaborate, were substantially similar to those of the Sarawak Ordinance, the major difference being that the modifications to English law by local customary laws were explicitly limited: namely, only to the extent that such customary laws were not 'inhumane, unconscionable or contrary to public policy'.
As in the Malay States, the legislation in North Borneo States merely formalized the factual situation. Long before such legislation sanctioned the general reception of English law, principles of English law and equity had been assimilated, informally and indirectly, through the same means as in the FMS.

Sarawak and North Borneo under Colonial Office
In 1946 (ie, after the end of the Pacific War), North Borneo and Sarawak were ceded to the Crown (ie, brought under the direct control of the British Colonial Office in London).

English law was received afresh and in larger measure Sarawak and North Borneo in 1949 and 1951 respectively. Section 2 of the Sarawak Application of Laws Ordinance 1949 and of the North Borneo Application of Laws Ordinance 1951 provided for the reception of common law and doctrines of equity, together with statutes of general application, as administered in England at the time of the respective Ordinances.

The reception of English law in both states was only to the extent permitted by local circumstances and customs and subject, further, to such qualifications as local circumstances and native customs rendered necessary.

The British administration also reorganized the court systems in these states by enacting Sarawak, North Borneo and Brunei Courts) Order in Council, 1951. Under this Order, the Supreme Court of Sarawak and North Borneo (and Brunei) comprising the Court of Appeal and High Court were established. The Supreme Court existed until 1963 when North Borneo (renamed Sabah) and Sarawak became part of the enlarged Federation renamed Malaysia.
English law (common law and rules of equity) forms one of the sources of "unwritten" law in Malaysia.

This is in virtue of Article 160 (2) of the Federal Constitution defines the word "law" to include "the common law in so far as it is in operation in the Federation or any part thereof". Due to a qualification in this definition, it means that English law (in general) is not always received in Malaysia.

English common law means a body of general rules made common to the whole of England and Wales by the old common law courts. In this sense, English common law is said to be that law which is unwritten (i.e. not enacted) and is solely rooted in the decisions of the courts of the land.

English rules of equity means the body of principles and rules developed and applied by the English Courts of Chancery. Rules of equity were developed in order to restore and mitigate the defects and harshness of the common law.

Borneo States
Straits Settlements

After transfer of Straits Settlements to Colonial Office, Legislative Council of the SS was formed. It was authorized to enact legislation for the settlement with effect from 4 February 1867. Examples – Evidence Ordinance 1893 and Penal Code 1871, which came into force in 1872. Civil Law Ordinance 1878 empowered Supreme Court of SS to administer common law and principles of equity concurrently, and provided for the latter to prevail in the event of conflict. Ordinance also provided for considerable body of English legislation to operate on continuing basis in commercial matters.

Malay States

The Residency/Protectorate system also led to the introduction of legislation on the advice of the Residents, which was modeled on English law, or in some cases, on Indian law.

Hence, on British Residents' 'advice', Malay sultans in FMS enacted numerous laws which adopted Indian codification of principles of English law.

Penal Code of SS (based on Indian penal Code) first adopted in Perak by Order in Council of 28 June 1884; later in other FMS states; eventually incorporated in Revised Edition of the laws of the FMS, 1936, as Chapter 45.
Evidence Ordinance of SS (based on Indian Evidence Act) first adopted in Selangor by Courts Regulation of 1893 and in Perak by Order in Council No 9 of 1894; then other states in FMS; eventually incorporated in Revised Edition in 1936 as Chapter 10;
Contracts Act of India – originally adopted in Selangor by Selangor Courts Regulation, 1893; subsequently by enactments in Perak, Selangor and Negeri Sembilan in 1899 and in Pahang in 1900. Eventually incorporated in Revised Edition in 1936 as chapter 36.
Criminal Procedure Code of India – adopted and enacted in various Malay States in FMS in 1900 – eventually incorporated in Revised Edition of 1936 as Chapter 6.
Land Enactments were introduced in various states between 1897 and 1903 – these introduced the Torrens System of registration of title.

2014
2015
The English common law was introduced into the colonies by two methods:

With respect to settled colonies, the colonists carried with them only so much ofthe English law as was applicable to their own situation and the condition of theinfant colony. The date of the establishment of the colony was the date of reception.

For conquered territories, the colonists retained the existing legal system only inso far as it was not repugnant to natural justice. The existing system was retained until such time as other arrangements could be made for English law to be introduced.

RECEPTION OF ENGLISH STATUTORY LAW

During the colonial era the UK was considered an imperial parliament which had the power to enact laws for its colonies via statute. This law was imposed in three main ways:
• by express extension by the UK Parliament of particular statutes to apply generally to all territories or to a named territory. These Acts usually concerned constitutional matters and the administration of the territories
• incorporation by reference in the colonial legislation. This could be specific, relating to a particular Act, or general, relating to a body of law, for example, jurisdiction in probate divorce could be incorporated by the following words

"Proceedings shall be subject to this ordinance and to the rules of court exercised by the court in conformity with the law and practice from time to time in force in England";

• incorporation by repetition: this was the most common method. Here, a particular English statute was simply repeated verbatim and enacted by the local legislature.

PRE-CONDITIONS FOR THE APPLICATION OF ENGLISH LAW
Absence of local statutes/legislation

The authority of condition (a) above is the qualification contained in the opening words of Section 3 (1) – "Save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia …"

Under the CLA, therefore, English law is referred to only as a means to fill in gaps in the local system

Cut off-dates

In Yong Joo Lin v Fung Poi Fong (1941) MLJ Rep.54, Terrell Ag. CJ said: "Principles of English law have for many years been accepted in the Federated Malay States where no other provisions [sic] has been made by statute…"

Suited to Local Circumstances

English law is applicable only to the extent permitted by local circumstances and inhabitants, and subject to qualifications necessitated by local circumstances. This qualification is contained in Section 3 (1)(b) of the Civil Law Act 1956, where it states:
"Provided always that the said common law, rules of equity and statutes of general application shall be applied so far only as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary".


MALAYSIAN ATTITUDES TO RECEPTION – STATIC OR CREATIVE?
There have been discussions and debates on the reception of law in Malaysia on the relevant dates of reception and their significance. However, while this is important, it is suggested here that the more significant issue should be the attitude of Malaysian judges and legislatures to the doctrine of reception itself. The first emphasises the historical accuracy of the law and legal system, while the second is more concerned with taking that historical foundation and moulding it into a viable law and legal system for the future.
What effect does the doctrine of reception have on Malaysian law and legal system? The controversial issue in relation to the reception of law is deciding to what extent independent Malaysian legal systems are bound to follow common law legal principles as defined by English judges. This begs the following question. What exactly did Malaysian legal system receive, or what was imposed upon it? Is it the common law as a legal tradition and a mental attitude, or is it a set of binding legal principles and legislative interpretations which only have validity as defined by English common law judges? Clearly, the first construct will give to Malaysian legal system a certain flexibility to define Malaysian jurisprudence according to its own image and likeness, ie, the potential to create an indigenous jurisprudence which conforms to the characteristics of the common law legal tradition but which may differ in detail. On the other hand, conforming to the idea that Malaysian judges are bound to follow law as expressed by their English counterparts imports a definite rigidity to Malaysian legal system.
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