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Background of Malaysian Legal System
Transcript of Background of Malaysian Legal System
Malaysia or originally Malaya has experienced approximately 500 years of colonial period.
After the fall of the Malacca Sultanate in 1500, the Portuguese has ruled the state and the strait.
The Portugese was then defeated by the Dutch with colloboration of the survivals of Malacca Sultanate heirs, the Johor Empire in 1641
Malaya in the Colonial Era
The British first came in 1789 when Francis Light was said to has found the Penang Island
Under certain treaty, the Sultan of Kedah has granted the claim of Penang Island to the British.
Malaya in Colonial Era
In 1819, Stamford Raffles was claimed to has found the Singapore.
Under certain treaty, Stamford Raffles managed to cede Singapore.
Malaysa in Colonial Era
The endorsement of The Anglo-Dutch Treaty 1824 has made the British entitled to all the Straits Settlements
The Dutch was 'transferred' to the south part of the Malay Archipelago, mainly Indonesia.
The Reception of English Law
When the British resided in Penang, the first English law and court system has been introduced
The Court of Judicature of Prince of Wale's Island in 1807
This was then extended to Singapore and Malacca in 1826
Now that you have know the nature of laws of this country, lets go back before the colonial era.......
What would be the laws of the people at that time?
During the Malacca Sultanate era ...
Brief History of Malaya in Colonial Era
The Emergence of British and Its Laws
Background of Malaysian Legal System
The First Colonial Law- The Common Law
Civil Law Ordinance 1878
Civil Law Enactment 1937 (FMS)
Civil Law (Extension) Ordinance 1951 (UFMS)
Civil Law Ordinance 1956 (Malaysia)
20 years after the founding of the Island, the English law came in the form of a Royal Charter of Justice 1807.
The CHARTER established the Court of Judicature of Prince Wales' Island to exercise the jurisdiction in all civil, criminal and ecclesiastical matters. It was interpreted as introducing the law of England that stood an 1807 to Penang.
Here arises the issue of Penang as ceded or settled land?
According to the English law, if a colony is ceded then the existing law remained until it was expressly chaged by England. on the other hand, in a settled colony considered uninhabited, i.e. no prior settlement, then there is a legal void, and automatically transforming the English law as the law of the colony.
This is issue was adequately discussed in Kamoo v Bassett (1808) 1 Ky 1, reaffirmed in Ong Cheng Neo v Yeap Cheah Neo & Ors (1872) 1 Ky 326. This was however reversed in a celebrated Australian case, Mabo case (1992) 175 CLR 1, on the right of indigenous people.
When Singapore was `founded', it was barely inhabited by a few Malays and Chinese. By June 1819, it was reported that the population grew by 5,000 people, mostly Chinese traders, i.e. for business opportunities.
Legal chaos arose when the newly appointed magistrates by Raffles were all trained in English law with little knowledge and exposure on the local customs.
The integration of English law in Malacca was made formal through the Charter of Justice 1826, where a new court called The court of Judicature of Prince of Wales' Island, Penang and Malacca was established.
In R v Williams (1858) 3 Ky 16, Maxwell R said,
".. whatever law the Second Charter introduced in Malacca... and as it has been decided the law of England as it stood in 1826, .. by the same means, the law of Penang"
The Third Charter of Justice 1855, was incorporated to strengthen the existing court system i.e. to reorganise the system, e.g. the appointment of the second Recorder (e.g. Sir Richard McCausland and Sir Peter Maxwell), with additional changes to administration of the Strait Settlements in 1867.
This Court of Judicature was eventually abolished and replaced by a new court, called the Supreme Court of the Strait Settlements in 1868.
Now, if the English people did not land their luxurious vessels on our shore, would it be any better? or worse?