TABLE OF CONTENTS

Introduction................................................................................................................................2

Development of English Law in Malay States...........................................................................3

Development of English Law in Federated Malay States..........................................................3

Development of English Law in Unfederated Malay States......................................................4

Development of English Law in Strait Settlements...................................................................5

Conclusion..................................................................................................................................8

Bibliography.............................................................................................................................11

1
Introduction

English law is defined as the common law of England and the rules of equity based
1
solely on courts’ decisions. In 1824, East India Company possessed three settlements in

Malay Peninsula, namely Penang, Malacca and Singapore collectively known as the Strait

Settlements to unite the British trading post in Malay Peninsula for business purposes. By

treaties with Malay rulers, British’s influence in the Malaya prevailed and formed Federated

Malay States consisting of Perak, Selangor, Pahang and Negeri Sembilan. Meanwhile,

Kedah, Perlis, Kelantan, Terengganu and Johore formed Unfederated Malay States. The

Malay states refer to both Federated Malay States (FMS) and Unfederated Malay States

(UMS). The question now is, how did English develop in Malay states and its’ differences

with Strait Settlements?

Development of English Law in Malay States

Before British’s intervention, Malay states were governed by adat law based on as

Moslem law that is varied by local custom.2 Malay States relied on Adat Perpatih and Adat

Temenggong in most areas of Negeri Sembilan as well as Malacca and other parts of

Peninsula respectively with local variations in unwritten form. 3 Islamic law was adopted in

religious affairs, law of marriage and divorce as well as criminal matters. The laws of

property and succession however didn’t show much Muslim influence. Malays, non-Malays

and British were governed by Malay adat law consisting of customary law and Muslim law,

personal law and English law respectively.4 Those Malay states were of sovereign states

meaning they could not have been ceded nor settled. The Malay states were theoretically

1
Civil Law Act 1956 (Act 67)
2
Wan Arfah Hamzah and Ramy Bulan (2002), An Introduction to the Malaysian Legal System, Shah Alam: Fajar
Bakti, pg107
3
Ahmad Ibrahim & Ahilemah Joned (1995), The Malaysian Legal System, Kuala Lumpur: Dewan Bahasa dan
Pustaka, pg20
4
Ong Cheng Neo v Yap Kwan Seng (1897) 1 SSLR

2
independent and their legal status had been accepted. However, English law was still imposed

into legal systems of Malay states through different mechanisms.

Development of English Law in Federated Malay States

English law was introduced informally into FMS by Residential System. In 1874, a

British agent was sent to Perak under the Pangkor Treaty and British officers were sent to

Selangor. Negeri Sembilan and Pahang came under British protection in 1889 and 1887

respectively. The FMS’ rulers were compelled to sign a treaty with British to get protection

for their states and assistance to settle a dispute. Then, a Resident will be appointed in these

states in which the ruler is to confide in them for all matters except for the ones that deal with

Islamic religion and customary values. Perak was the first state to gain J.W.W Birch as their

resident. Federal Council and High Commissioner were introduced and came into force. For

instance, this was evidenced in case of Shaikh Abd. Latif v. Shaikh Alias Bux 5, in

accordance to the following of the advice from the Residents, British administration of law

was implemented. Courts of justice with British structure were established, English-trained

and educated judges that would apply English law whenever they cannot find any local law to

be applied in certain situations and use English principles of equity to make their decisions

were appointed. Generally, law would be of British enactments. Thus, British had a huge

impact of the development of Malay states’ legal systems. Through the Residential System,

English law was also introduced informally by enactment. A number of specific legislation

modelled on Indian legislation was based on English law.6 For example, Contracts (Malay

States) Ordinance 1950 was modelled on the Indian Contracts Act 1872. 7 English Law was

introduced formally into FMS by Civil Law Enactment 1937. This enactment gave statutory

recognition of application of English law by the courts in Malay states even before the

5
[(1915) 1 FMSLR 204]
6

7
No 14 of 1950 and FMS Cap 45 repectively

3
enactment was passed by Federated Malay States Federal Council. Section2(1) of Civil Law

Enactment stated that common law and rules of equity shall be in force in FMS so far only as

the circumstances of FMS and its inhabitants permit and subject to such qualifications as

local circumstances under necessary. 8

Development of English Law in Unfederated Malay States

Before British’s intervention, Siamese claimed sovereignty over Perlis, Kelantan, Terengganu

and Perlis. Then, Siamese transferred to British the rights of administration and control these

states by Anglo-Siamese Treaty of 1909 where British could possess these states. Informally,

British introduced English law by the Adviser System. British would assign a British Adviser

to all the mentioned states. These Advisers comprised British individuals whose intentions

were to inject English influence into the local legal system. For instance, British assigned a
9
British Adviser to Perlis in 1930, Kedah in 1923, Kelantan and Terengganu in 1910.

Although the rulers were not legally obligated to take into account of British’s advices, but in

majority situations they still do so because they feel indebted to British. This was evidenced

in the case of Mohammad Ganny v. Vadveng Kuti10, although no codes of civil wrong has

been passed, the court in the country always follow the law of England in cases of tort.

Furthermore, English law was introduced formally into UMS when the FMS enactment was

extended to them by the Civil Law (Extension) Ordinance 1951. This is shown in the case of
11
Government of Perak v. A.R. Adams where common law was used against British

principle of natural justice. The UMS showed a strong form of nationalism and resilience to

not conform to the authority of British. Thus, they enjoyed greater autonomy over their

region and law as compared to the FMS.

8
Civil Law Enactment 1937
9
Wu Min Aun (2005), The Malaysian Legal System, Petaling Jaya: Pearson, pg 21
10
[1933] 7 F.M.S.L.R 170
11
[1914] 2 F.M.S.L.R. 144

4
Development of English Law in Strait Settlements

A question arose whether Penang was considered as a ceded or settled state to

determine the law for the territory. If the newly acquired territory is terra nullius, discovered
12
and settled by British, English law is applicable and become the lex loci. However, if the

territory was already occupied, is acquired by British by cession or conquest, the law

previously existing continues to be in force until changed by British. 13 Penang was neither

ceded nor settled because clearly illustrated in the case of Fatimah v Logan14, Penang was

merely an uninhabited island except for a few nomadic fishermen. However, this matter was

decided academic in the case of Ong Cheah Neo V Yap Cheah Neo 15, the judge held that

regardless whether Penang was ceded or settled, the law of England is necessarily to be

referred as the only governing law. There was no official body of laws and justice was

administered following the conscience of administrators during the first two decades of
16
British occupation. In the absence of any known body of law, the magistrate applied the

principles of natural justice. Courts at that time exercised principles of natural justice and
17
trivial civil cases were solved by their headman or captain. Prejudice was clearly shown

when European offenders were left in complete impunity and exempted from punishment

except for murderers that will be sent to India for trial whereas non-European offenders other

than murderers were directed to be punished not accordance with English law but by

imprisonment or other common forms of punishment. For instance, in Ahpoe v Kehin18, it

was stated a couple guilty of adultery was punished with shaving their heads and stand in

public for certain hours every day. Due to legal chaos, the first Charter of Justice was granted

to Penang by King George III in 1807. This Charter established a Court of Judicature to

12
Regina v Willans [1858] 3Ky 16
13
Campbell v Hall [1774] 98 ER 1045
14
[1871] 1Ky 255
15
[1872] 1Ky 326
16
Fatimah & Ors v Logal & Ors [187] 1Ky 255
17
Regina v Willians (1858) 3 Ky 16
18
Unreported decision of 1797

5
exercise the jurisdiction of England’s superior courts to the extent that circumstances will

admit and jurisdiction as an ecclesiastical court as far as the religions, manner and customs of

inhabitants will admit. In the case of Kamoo v Thomas Bassett,19 First Charter of Justice

applied retrospectively to civil injuries and criminal cases even before its establishment to

give protection to the native inhabitants. First Charter of Justice was granted to solve the legal

dispute in Penang before 1807 and although it did not expressly introduced law of England,

the provisions were interpreted to have introduced law of England into Penang.

The possession of Malacca by British in 1795 and Dutch in 1818 did not focus much in

reorganising or reforming Malacca’s administration until Anglo-Dutch treaty 1824, when

British took permanent possession Malacca did British finally decided to administer

permanent legal system. The Second Royal Charter of Justice introduced English law to

Malacca after Malacca became part of Strait Settlements. Law of England was introduced

into the settlements by the virtue of the King’s Charter except in certain cases where it

superseded and abrogated any law previously existing. Sir Benjamin Malkin held that in the

Second Charter of the Justice, English law is to supersede Dutch law. It introduced English

Law subjected to modification according to local conditions and modifications as are

necessary to prevent injustice. The Second Charter of Justice was granted to extend the usage

of Law of England to these newly incorporated Strait Settlements in 1826.

Singapore was ceded to British after Stamford Raffles negotiated a series of

agreements with Temenggung Abdul Rahman and Sultan Hussain Mahomed Shah in 1819.

He managed to acquire the right to establish a factory in Singapore. A magistrate was

established under the instruction of Stamford Raffles. Penghulus and Captains were

appointed to provide assistance in matters of native law among the Asiatic races but

Europeans who were under the jurisdiction of the court at Calcutta were immune from legal

19
(1808) 1 Ky 1

6
process. Thus, legal chaos occurred and they urgently requested for a Charter of Justice. This

was only granted after Singapore became part of Strait Settlements did it get full benefit of a

regular law administration as provided for in the Second Charter of Justice in 1826 that

extended the jurisdiction of the Court of Judicature of Prince of Wales’ Island (Penang) to
20
Singapore and Malacca to expose the Settlements to law of England . The provisions in the

Third Charter of Justice did not repeal The Second Charter of Justice but to restructure Court

of Judicature that was established by the Second Charter of Justice. It developed a division of

the court with a Recorder for Singapore and extended the power of Recorder of Penang to

Province Wellesley. Registrars were appointed for each division. Conclusion, The Third

Charter of Justice was then granted in 1855 to reorganise the existing courts structure. 21

20
N.J. Kyshe, supra n. 11.
21
R v Willans [1858] 3 Ky 16

7
 Conclusion

A similarity between introduction of English law within the Strait Settlements and

Malay states was that case law and legislation were both utilized in implementing the law.

For instance, they copied Indian Penal Code 1860 for the Penal Code. 22

However, differences do exist. Strait Settlements were either ceded or settled by

British. Thus, British had the authority to implement any law in these territories according to

their wishes. However, the Malay states are neither previously owned or occupied and newly

settled by the British nor are they ceded to the British. They are only considered as states

under protection of British. This is the difference in the introduction and application of

English law in the Straits Settlements and Malay States. Since the Malay States were not

British territories, English law could not be imposed through simply by the common law

principle of reception or directly implement their own laws. Thus, English law could only be

introduced voluntarily by the legislation enacted by the Malay states themselves.23

In the Malay States, it had to be enacted through the willingness of the local leaders

adhering to advice of the Residents and Advisers. This meant that legislation had to be

enacted indirectly compared to the Strait Settlements that had its’ legislation enacted directly.

With the signing of the Pangkor Treaty in 1874, the British were directly expanding

their power and authority over the Malay Peninsula. Perak, Selangor, Pahang and Negeri

Sembilan formed the Federated Malay States in 1895. Meanwhile, the other Malay states that

fell under the control of the English stayed out of the federation and were known as the

Unfederated Malay States. However, the Malay States were considered to be independent and

the Malay Rulers were sovereign although the former were somehow protected by the British.

22
Wan Arfah Hamzah and Ramy Bulan (2002), An Introduction to the Malaysia Legal System, Shah Alam, Fajar
Bakti, pg109
23
Ibid pg108

8
 This was approved in the case of Mighell v Sultan of Johore24 where the court held

that the English court has no jurisdiction over the Sultan who was an independent foreign

sovereign unless he consented to submit to the jurisdiction of the English courts. Such a

submission could not take place until the jurisdiction had been invoked. The intervention of

English into Malay states had caused British to directly or indirectly interfere with Muslim

law and its administration. This spread of British influence also indirectly favoured the

introduction of English law. English law was introduced informally and indirectly through

the decisions of the Courts comprised of the British Administrators. A huge mass of rules of

common law and equity were adopted because they were deemed to conform to the principles

of natural justice due to their reliance of English law. 25

Regarding to equitable principles, in the case of Motor Emporium v Arumugam26, the

judge cited that the Courts of Federated Malay States had many occasions acted on equitable

principles because such rules happened to conform to the principles of natural justice but not

because of English rule of equity was to be applied. The concept for rules of common law

and equity were just and universal, thus it was applicable.

Another difference found was although English law was introduced in both Strait

Settlements and Malay States, the speed and directness of English law to be introduced

differed. Malay states took much longer time and more efforts compared to Strait Settlements

because Malay states were practically under control of British.

Although case laws were utilized to impose English law in both Malay States and Strait

Settlements, the case laws in Malay States initiated the principles of English Law such as

equity into the Malay State as opposed to the case laws in the Strait Settlements that were

merely cases that already accepted English Law and legislation.

9
 These differences share a common theme in which the Strait Settlements had English

Law directly imposed onto them whereas the Malay States were imposed on indirectly. This

is why the determination of whether a land was Terra Nullius or ceded was very important.

Bibliography

Books

10
Wan Arfah Hamzah and Ramy Bulan (2002), An Introduction to the Malaysia Legal System,

Shah Alam, Fajar Bakti

Ahmad Ibrahim & Ahilemah Joned (1995), The Malaysian Legal System, Kuala Lumpur:

Dewan Bahasa dan Pustaka

Wu Min Aun (2005), The Malaysian Legal System, Petaling Jaya: Pearson

Salleh Buang (1993). Malaysian Legal History: Cases and Materials, Selangor: Dewan

Bahasa dan Pusaka

Cases referred to

Ong Cheng Neo v Yap Kwan Seng (1897) 1 SSLR

Shaikh Abd. Latif v. Shaikh Alias Bux [(1915) 1 FMSLR 204]

Mohammad Ganny v. Vadveng Kuti [1933] 7 F.M.S.L.R 170

Government of Perak v. A.R. Adams [1914] 2 F.M.S.L.R. 144

Regina v Willans [1858] 3Ky 16

Campbell v Hall [1774] 98 ER 1045

Ong Cheah Neo V Yap Cheah Neo [1872] 1Ky 326

Fatimah & Ors v Logal & Ors [187] 1Ky 255

Kamoo v Thomas Bassett (1808) 1 Ky 1

Mighell v Sultan of Johore [1894] 1 QB 147

11
Kandasamy v. Suppiah [1919] 1 F.M.S.L.R 381

Motor Emporium v Arumugam [1933] 2 M.L.J. 276

Statutes

Civil Law Act 1956 (Act 67)

Civil Law Enactment 1937

12