Chapter 2 - Formatted

Legal History of Malaysia Chapter 2
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LEGAL HISTORY OF

MALAYSIA

2.0 INTRODUCTION
As mentioned in chapter one, every legal system has its history. It is important to
study the legal history of a state of nation because it will reveal the stages of
development of its sources of law. From time to time, administrators change and new
administrative problems arise that need to be resolved. The use of certain sources of
law could fulfil the needs of the people and the administrator. Laws from other
countries at times are referred to and adopted to fill up the lacuna of local laws. The
legal history could provide the reasons and explain why a particular law was applied
and is continuously being used. Figure 2.1 will elaborate the Structure of Chapter 2.
Legal History of Malaysia
West Malaysia East Malaysia
a) Era of Early Settlers in West a) Sarawak

Malaysia b) Sabah
b) Era of the Malaccan Sultanate
c) Era of Portuguese and Dutch
Administration
d) Era of British Colonisation
Figure 2.1 The Structure of Chapter 2
Malaysian Legal System 13

Chapter 2 Legal History of Malaysia
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LEARNING OBJECTIVES:
After studying this chapter, you should be able to:
1. understand the history of the development of the sources of law in

Malaysia
2. appreciate the development of the courts system
3. analyse the factors and events that influence the development of the
legal system of Malaysia.
2.1 LEGAL HISTORY OF WEST MALAYSIA
The Legal history of West Malaysia could be divided as follows:
• Era of the Early Settlers in West Malaysia

• Era of the Malaccan Sultanate
• Era of Portuguese and Dutch Administration
• Era of British Colonisation
2.2 ERA OF EARLY SETTLERS IN WEST MALAYSIA
It is assumed that the earliet settlers in West Malaysia were those in the Middle
Stone Ages (8000-2000 B.C.). The Negritos and the Senoi are their descendants.
They were followed by the Proto-Malays from Yunan who settled in the vicinity.
Intermarriage between the Proto-Malays and the people from Java and Sumatra
evolved into Deutero-Malays. The Malays are their decendants.
2.2.1 Negritos
The Negritos live in groups and loves to migrate. They have a chief who is the
eldest person. The chief has power over the members of the group. A
member who commits an offence such as stealing the blow pipe or run away
14 Malaysian Legal System

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with another’s wife or who kills, will be required to make payment or he will be
admonished, be tied up and beaten till he agrees to settle the payment. If
there is a disagreement between two chiefs there will be a gathering of chiefs
to settle the matter.
2.2.2 Senoi
The senoi do not migrate as frequent as the Negritos. The Senoi is headed by
a Penghulu and the post is inherited by the eldest son. If he does not have a
son the post will be given to the person he elects. The Penghulu is
empowered to deal with his people but on serious offences there is a council
of members appointed consisting of the Penghulu and other elders from the
clan. Whoever commits theft will be banished from the group. Any
misunderstanding over a woman will be settled by payment of fines. The land
of the Senoi belongs to the clan not individual and it is worked upon by the
clan. The Penghulu could however determine each area of work.
In summary, it can be concluded that the early settlers do possess a

rudimentary system of rules that governs the clan and punishment is passed
upon by the person of authority.
2.3 ERA OF THE MALACCAN SULTANATE
According to some authors of history, Malacca was founded by a Hindu prince from
the Majapahit Empire. Malacca became a famous port of call for traders from China,
India and Arabia. At first, the ruler and its people were followers of the Hindu religion
but they later embraced the religion of Islam and became Muslim. At the apex of
administration system of Malacca is the Sultan and he was assisted by four officials
called the Bendahara, Temenggung, Laksamana and Shahbandar. The Sultan was
an absolute ruler and handled all cases of treason. The Bendahara was the chief
adviser and enforcer of law. The Laksamana or Admiral was empowered to manage
diplomatic issues and war. The Shahbandar managed the affairs of the port and
safety of traders.
There are two legal texts of Malacca namely the Hukum Kanun Melaka (Laws of
Malacca) and the Undang-undang Laut Melaka (Maritime Law of Malacca). The laws

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of these legal texts are a mixture of Hindu customary law and Islamic rules. The
Malacca Code comprised of forty-four (44) articles and encompasses matters relating
to the King’s duties and restrictions imposed unto his subjects, issues relating to
family law and punishments of offences.
The Maritime Law of Malacca contains twenty-five (25) provisions on matters relating
to shipping such as duties and liabilities of the captain and his officers, the
administrative procedure of the harbour and offences relating shipping.
The influence of these legal texts in the other Malay States are evident after the
demise of the Malaccan Empire. The Pahang Digest was established in 1650. Kedah
laws in 1659 till 1784, the Johor laws in 1787 and the Ninety-nine laws of Perak in
1878.
2.4 ERA OF PORTUGUESE AND DUTCH ADMINISTRATION
Malacca was taken by the Portuguese in 1511. During the Portuguese period,
Malacca was ruled by a governor, who has control over the local residents and the
foreigners in civil matters. The governor is assisted by a council consisting of the
ovidor (chief justice), viader (mayor), bishop and a secretary of state. In military
matters the governor is assisted by the captain-general of war (Commander-in-chief)
and the sergeant-major.
Apart from that, seven magistrates were appointed annually from leading citizens to
from the Corpus de Cidade, which administered matters within the city of Malacca
and exercised civil and criminal jurisdiction over all Portuguese inhabitants. Appeal is
made to the ovider. In important cases, the governor will preside over the magisterial
court. Further appeal will be forwarded to the Higher Courts in Goa, India.
Beyond the walls of the city of Malacca, the Portuguese did not exert their influence.
The Malays and other Asian communities were left to themselves. The old system
prevailed. However head men and kapitan were apponted for each community to
maintain law and order and was under the supervision of a Malay Bendahara, who is
flanked by the Temenggung and Shahbandar.

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The Dutch took Malacca over from Portuguese in 1641. The Dutch governor was
assisted by a council, comprising of a collector, the fiscal, the mayor, the upper
merchants and a secretary. The Police council (Politie Raad) has executive powers
and the judicial matters were left to the Raad van Justice.
Ecclesiastical matters however were handled by a special committee. Regulations

were issued both by the government in Holland Batavia (Java) and also the local
government. A copy of “Groot Plakkaboek” was sent to the Malaccan governor by the
East Dutch Company to ensure uniformity of law. The local inhabitants however were
left to practice their own laws. In Sharip v. Mitchell (1877) Leic. 466, Sir Benson
Maxwell C.J. said:
“The Portuguese while they held Malacca and after them the Dutch left the
Malay custom or lex non scripta in force. That it was in force when this
settlement was ceded to the Crown appears to be beyond dispute and that
the cession left law unaltered is equally plain on general principles.”
In summary, it could be concluded that the administration of both Portuguese and

Dutch were not extensive but were specifically directed onto Malacca town.
2.5 ERA OF BRITISH COLONISATION
The era of British colonisation can be divided into the following:
• Straits Settlement
• Federation Malay States
• Unfederated Malay States
• Federation of Malaya
2.5.1 Straits Settlements
Through the treaty with the Sultan of Kedah in 1786, Penang was taken by
Francis Light for the East India Company. Singapore was obtained by
Stamford Raffles from the Sultan of Johore, through the treaty of 1819.
Malacca was obtained by the British from the Dutch East India Company via

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the Anglo-Dutch Treaty of 1824. The three settlements were amalgamated

and called the Straits Settlement in 1826.
Application of English Law
When Francis Light occupied Penang he received directives from the

Governor-General of Bengal. A few years after Penang was opened the
number of settlers increased tremendously. Light wrote to the Governor-
General on the use of law for the settlement. In his reply to Light the governor
stated that he was to ensure peace and order with punishments that was
commonly practices namely imprisonment and other forms of sentences that
is used upon the local residents who are non-British subjects. However,
English subjects were sent to Bengal for trial.
To overcome administrative problems Light appointed head of villages and

“Kapitan” for certain communities. They were to register records of marriage,
birth and death; slaves and sale of property. They too were empowered to
settle petty cases among settlers. Francis Light also introduced the
Magistrates Courts which comprises of three officials – namely the
Commander, Magistrate and the Assistant. The Chief Commander cannot
exercise death penalty without the consent of the Governor-General. Records
of proceedings also had to be delivered to Bengal for the attention of the
Governor-General.
At this juncture among cases decided were R. v. Aphoe and Kehim (1797) by
Magistrate George Caunter. Briefly, the facts were that Aphoe, a Chinese
committed adultery with a Chinese lady, Kehim. They were sentenced as
follows: their head were shaved and they were put to be viewed by the public
twice daily. The man later was banished from the settlement.
The First Charter of Justice was granted to Penang in 1807. A Court of

Judicature was set up called the Court of Judicature of the Prince of Wales
and has jurisdiction in civil, criminal and ecclesiastical matters.
In Kamoo v. Bassett (1808) 1 Ky. 1. Sir Edmund Stanley, R held that by the
Charter of Justice 1807, not only was the English Criminal Law extended to

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the Settlement of Penang but that civil injuries are also to be redressed
according to English law; even as regards offences or wrongs committed or
done before the Charter.
The Second Charter of Justice was granted to the Straits Settlement in 1826
and the Court of Judicature was renamed as the Court of Judicature of the
Prince of Wales, Singapore and Malacca. The charter aims to establish
uniformity of laws throughout the settlements. What criteria were use?
In Rodyk v. Williamson (1834) Sir Benjamin Malkin, R held that Dutch law
was abrogated in Malacca and English law applied. Sir Benjamin, Malkin K
states:
“Bound by the uniform course of authority to hold the introduction of

the King’s Charter into these Settlements, had introduced the existing
Law of England also, except in some cases where it was modified by
express provisions, and had abrogated any law previously existing”.
In the Goods of Abdullah (1835) 2 Ky Ec. 8, the court held that a Muslim
could disposes all his property by means of a will even though this was
contradictory to the teaching of Islamic law. In Salmah v. Soolong (1878) 1
Ky. 421, the court held that a Muslim woman could marry without a wali, after
allowing her to change from the Shafie sect to the Hanafi sect.
The Third Charter of Justice was granted in 1855. The main objective of the
Charter was to reorganise the court system of the settlements. A recorder
was added to serve the courts of Singapore and Malacca. The jurisdiction of
the recorder for Penang was increased to encompass Province Wellesley.
By the Government of Straits Settlements Act 29 and 30 Vic.c. 115 passed on

10th August 1866, the Straits Settlements were separated from the
government of India. The Straits Settlements was moved to the Colonial
Office in 1867.
By Letters Patent dated 4th February 1867, Her Majesty delegated to the
Legislative Council of the Straits Settlements legislative authority within the

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Colony and other powers to the Governor and the Executive Council. By
Straits Settlements Act III of 1867, the Governor of the Straits Settlements
ceased to be a Judge of the court. The Recorder of Singapore became the
Chief Justice of the Straits Settlements and the Recorder of Penang became
the Judge of Penang.
In 1868, the Court was re-constituted by Ordinance V of 1868. The Court of

Judicature of the Prince of Wales Island, Singapore and Malacca was
abolished and the Supreme Court of the Straits Settlements was established.
By section 5 of the Ordinance the court composed of two judges, namely the
Chief Justice and the Judge of Penang and the court consists of three
divisions at Singapore, Penang and Malacca.
By Ordinance V of 1873 the Supreme Court was further reconstituted. The

court consisted of the Chief Justice, the Judge at Penang, and a Senior and
Junior Puisne Judge and consists of two divisions, one at Singapore and
Malacca and the other at Penang. The number of judges however were fixed
at three.
In Choa Choon Neoh v. Spottiswoode (1869) Ky. 216, Sir Benson Maxwell,
C.J. had to consider whether the English rule against perpetuities applied to
the Colony and stated as follows:
“In this colony, so much of the law of England as was in existence

when it was imported here, and as is of general (and not merely local)
policy, and adapted to the condition and wants of the inhabitants, is
the law of the land; and further that law is subject, in its application to
the carious alien races established here, to such modifications as are
necessary to prevent it from operating unjustly and oppressively on
them. Thus in questions of marriage and divorce, it would be
impossible to apply our law to Mahomedans, Hindoos and Buddhists,
without the most absurd and intolerable consequences, and it is
therefore held inapplicable to them. Tested by these principles is the
rule of English law which prohibits perpetuities either of local policy,
unsuited to an infant settlement or inapplicable by reasons of the
harshness of its operation to the people of oriental races and creeds?

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The rule is not founded by any statute, but is a rule of common law
and it seems to me to one of a general and fundamental character, of
great economical importance, and as well fitted for a young and small
community of a great state, for both are interested in keeping property,
whether real or personal, as completely as possible an object of
commerce and a productive instrument of the community at large.”
Sir Benson Maxwell, C.J. held that the rule was applicable.
Hackett J, applied this rule in Ong Cheng Neo v. Yeap Cheah Neo and
Others (1872) 1 Ky. 32, the case proceeded to Privy Council and it was held:
“The law of England must be taken to be the governing law, far as it is

applicable to the circumstances of the place, and modified in its
application by other circumstances….In applying this general principle,
it has been held that statutes relating to matters and exigencies
peculiar to the local condition of England, and which are not adapted
to the circumstances of a particular colony, do not become a part of its
law, although the general part of England may be introduced into
it…Their Lordships think it was rightly held by Sir P. Benson, Maxwell
C.J., in the case of Choa Choon Neoh v. Spottiswode that whilst the
English Statutes relating to superstitious uses and Mortmain ought not
to be imported into the law of the Colony, the rule against Perpetuities
was to be considered a part of it. This rule which certainly has been
recognised as existing in the law of England independently of any
statute is founded upon considerations of public policy which seems to
be as applicable to the condition of such a place as Penang as to
England, viz, to prevent the mischief of making property inalienable,
unless for objects which are in some way useful or beneficial to the
community. It would be obviously be injurious to the interests of the
Island, if land convenient for the purpose of trade or for the
enlargement of a town, or port could be dedicated to a purpose which
would forever prevent such a beneficial use of it The law of England
has however, made an exception, also on grounds of public policy, in
favour of gifts for purposes useful and beneficial to the public, and
which, in a wide sense of the term, are called charitable uses; and this

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exception may properly be assumed to have passed with the rule into
the law of the Colony [see Thompson v. Shakespeare 1 deG. F & J.
399; Carne v. Long 2 deG, F&J 75]”.
The Legislative Council passed the Civil Law Ordinance IV of 1878. Under
section 6 it states:
“In all questions or issues which may hereafter arise or which may
have to be decided in this colony, with respect to the law of
partnerships, joint stock companies, corporations, banks and banking,
principals and agents, carriers by land and sea, marine insurance,
average, life and fire insurance, and with respect to mercantile law,
generally, the law to be administered shall be the same as would be
administered in England in the like case, at the corresponding period,
if such question or issue has arisen or had to decided in England
unless in any case other provision is or shall be made by any statute
now in force in this colony or hereafter to enacted.”
By virtue of this ordinance English Acts such as the Sale of Goods,

Partnership and Bills of Exchange Acts were enforced in the Colony.
In 1880, Governor of the Colony, Sir F.A. Weld, looked into the issues of land
system and recommended the introduction of the Torrens System in the
Colony. The Attorney-General was sent to Australia to study its
implementation. The Conveyancing and Law of Property Ordinance was
enacted in 1886. The Act was passed to provide that all immoveable property
situate within the jurisdiction of the court, as far as regarded the transmission
of the same on the death or intestacy of any person having a beneficial
interest therein, or by the last will of such person, should be taken to be and
have been of the nature of chattels real and not of freehold, but subject to
certain provisos in the Act.
In Choo Ang Chee v. Neo Chan Neo and Others (Six Widows) (1908) 12
S.S.L.R. 120; the court held that the Chinese could practice polygamy and
thus all widows were legally married to the deceased and their children could
inherit his property.

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In Re Maria Huberdina Hertogh (1951) 17 MLJ 164, the marriage between

Maria Hertogh and Mansur bin Abadi was annulled by the court, on ground
that under the laws of Holland permission to marry must be obtained from the
Queen of Holland and since that had not been done, the marriage was null
and void.
As a summary, English law was applied in the Straits Settlement and subject
to modifications to suit the local inhabitants and according to circumstances
render necessary.
2.5.2 Federated Malay States
Four states that had economic relations with the Straits Settlements were the
states of Perak, Selangor, Negri Sembilan and Pahang.
These states were generally ruled by Sultans and assisted by their chieftains.
In Perak, the Sultan was assisted by four great chiefs, eight major chiefs and
sixteen deputies. These offices were bestowed with local rights of taxation
and control which consolidated the official’s influence in his district. The chief
control over the neighbouring villages was maintained by the chief through
the village headmen or penghulus.
The penghulu, who has family connection with the chief, collected taxes for
the chief on a small commission. He recruited and supervised labour levies,
and informed the chief of affairs in the village and all crimes in the area. He
arbitrated in village grounds and punished small crimes with the help of other
village officers.
The economic resources of the Sultans and chiefs were mainly two sources;
services extracted from slaves, bondmen and Kerah levies and taxes on
production and trade.
Tin was the main product of the century. The tin mines located in the various
districts were under the control of the territorial chiefs. At this point of time
there was an influx of Chinese working the mines, mainly from two societies,

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namely the Ghee Hin and Hai San. These societies were constantly at war
with each other. The turbulence affected the supply of tin to traders or
merchants of the Straits Settlements who invested in the mines. These
traders who were British residents in the Straits Settlements complained to
the administrators of the Straits Settlements and urged that the British
intervene into the affairs of the Malay States. Apart from that the Malay states
were in a state of anarchy because of the fight among the princes for
succession to the throne.
In Perak for example, Raja Abdullah a prince, sought the assistance of the
British and via the Treaty of Pangkor 1874, he accepted the appointment of a
Resident, whose advice must be asked and acted upon on all questions other
than those touching Malay religion and custom. Birch, was appointed as
Resident and his death resulted in extensive intervention of the British in the
affairs of Perak.
The British also intervened into the affairs of Selangor in 1874, Negri
Sembilan (1874 – 87) and Pahang (1888). The succeeding rulers through
treaties received a Resident empowered to advise the ruler in all matters
except religion and customs. The British government wanted uniformity in the
administration of these Residents. Eventually in 1895 the residential system
was reorganised by amalgamating the four states into a federation called the
Federated Malay States. Under the agreement the Sultans remain rulers of
their state but the Resident-General, who had power over the State-Residents
was to co-ordinate their activities. The powers of the Resident-General was
not specified nor was there a council to control or advise him, although he
was technically under the authority of the High Commissioner of the Straits
Settlement.
In 1909, a Federal Council was created and consisted of the High

Commissioner, the Chief Secretary (formally called the Resident-General),
four rulers, four British Residents and four unofficial members nominated by
the High Commissioner to represent various interests. In 1925 the rulers
ceased to be members and were removed from the Council and they were
replaced by their representatives. The rulers were made members of a
special Advisory Council and endorsed all legislation enacted by the

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Legislation Council (this body was the forerunner of the Conference of

Rulers).
The British residents in each state were faced with various judicial matters.
Though they set up Magistrates courts but what laws were to be applied
then?
The British residents borrowed and applied laws of the Straits Settlements
such as the Penal Code of Straits Settlements (Ordinance IV of 1871) and the
summary Jurisdiction Ordinance (XIII of 1872).
By 1878, in Selangor Magistrates’ courts were established in Klang, Langat,

Kuala Selangor and Bernam, which were presided over by district officers,
and in Klang, by the Resident and Treasurer. The district officer can sentence
six months’ imprisonment or $100 fine in criminal cases and listen to claims
up to $50 in civil cases. Cases beyond this jurisdiction was tried by the
Resident. Capital sentences were referred to the Ruler in Council for
confirmation.
In 1882, a Chief Magistrate was appointed to Selangor and a Senior

Magistrate to Perak in 1890. The courts of justice were regulated by
instructions and orders in council, defining jurisdiction and legalising codes
and procedures.
Among legislation that were later introduced to consolidate law relating to

judicial administration were Perak Order in Council II of 1890 (17 October
1890); Selangor Regulation XI of 1893 (11 August 1893), Negri Sembilan
Order in Council I of 1893 Supplement (24 November 1893) and Sungei
Ujong Regulation X of 1894 Supplement (4 January 1895).
Under these regulations, the Residency Court, the Senior Magistrates’s

Court, courts of Magistrates of first, second and third class and penghulus
courts were established. The Residency Court consisted of the Sultan, the

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Resident, and Secretary to Government, all three or any two, or any one
separately, is competent to hold sessions.
The Senior Magistrate’s Court consisted of the Resident, the Senior

Magistrate and the Secretary to Government and any one being competent to
hold sessions.
The court of first, second and third magistrates had civil jurisdiction of $3,000,
$1,000 and $50 respectively and criminal jurisdiction of two imprisonment and
$2,000 fine; six months and $500 fine and one month and $25 fine
respectively.
Peghulus court had jurisdiction in “all suits brought by Malays and other
Asiatics” up to $25 in civil cases and $5 fine in criminal cases. Appeals lay
from courts of penghulus and magistrates of second and third class to
magistrates of the first class; from any magistrate’s court to the Senior
Magistrate and from the Lower courts to the Residency court. The final Court
of Appeal was the Sultan in Council.
Courts of Kathis and assistant Kathis were also established with powers to
impose fines of $10 and $5 respectively; and possess jurisciction in all
matters concerning. Mahomedan religion, marriage and divorce, and in all
matters regulated by Hukum Syarak as defined under the hands and seal of
his Highness the Sultan and countersigned by the British Resident.
Apart from the Straits Penal Code (IV of 1871) the Oaths Ordinance (V of
1890), the Summary Jurisdiction Ordinance (XIII of 1872) and the Evidence
Ordinance (III of 1893) were applied. The administration of justice were
heavily criticised by the Straits Settlements because of close connexion
between the executive and judiciary, the absence of legal training and the
exclusion of legal counsels from the courts.
In Leonard v. Nachiappa Chetty (1923) 4 FMSLR 265, Reay CJ. opined that
advocates relied heavily on English law and did not know much about the
local laws. The courts however before applying the English cases needs to

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look at the local situation and see whether there are similarities or differences
with English law.
In Re Yap Kwan Seng’s will (1924) 4 FMSLR 313, the court had to
considered the applicability of the Rule of perpetuities in the State of
Selangor, Sproule Ag. C.J.C. said:
“….The general law of England was never introduced or adopted here

at any time. The most that can be said was that portions of that law
were introduced by legislation which adopted, not English law, but
English principles and models for local laws….We have as a matter of
fact adopted freely in these states a great mass of English rules of law
and equity, civil and criminal laws and procedure either directly or
derivately. The latter might be said to a certain extent of our land
tenure and registration. I do not think anyone can cavil at the
proposition that these states have been consistently fain to welcome
and adopt English rules and principles of law, so far as they are
applicable to local conditions…”
English law was officially introduced into the Federated Malay States only in
1937 by the Civil Law Enactment. It did not affect any great change in the
states but it gave the courts statutory authority to do what they have been
doing long before the passing of the Enactment.
Section 2(1) of the Civil Law Enactment 1937 provides:
“Save in so far as other provision has been or may hereafter be made

by any written law in force in the Federated Malay States, the common
law in England and the rules of equity, as administered in England at
the commencement of this Enactment, other than any modifications of
such law or any such rules enacted by statute, shall be in force in the
Federated Malay States:
Provided always that the said common law and rules of equity shall be
in force in the Federated Malay States so far only as the
circumstances of the Federated Malay States and its inhabitants

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permit and subject to such qualifications as local circumstances

render necessary.”
2.5.3 Unfederated Malay States
Kelantan, Terengganu, Kedah and Perlis were given to the British under the
Anglo-Siamese Treaty of 1909. A British adviser was appointed in each state
to advise the ruler. English law was applied by the judges in their decisions.
In Duff Development v. State of Kelantan (1924) A.C. 797, where a company

entered into an agreement with the government of Kelantan to develop a
piece of land. In the agreement it was provided that in the event of any
dispute, the matter will be resolved through arbitration. The State government
did not observed the decision of the arbitrator. Action was the taken against
the ruler.
The court held that the action cannot be taken against the ruler because of
the principle of immunity.
In Pahang Consolidated Co. Ltd. v. The State of Pahang (1933) 3 MLJ 247,
Privy Council uphold the principle of sovereign immunity.
English law was officially introduced into the Unfederated Malay States by
virtue of the Civil Law Ordinance (Extension) 1951 after the Unfederated
Malay States formed part of the Federation of Malaya.
2.5.4 Federation of Malaya
The Japanese occupied the Straits Settlements, the Federated Malay States
and the Unfederated Malay States in 1941. In 1945 the Japanese were
defeated and these administrative units were placed under British Military
Administration. The proposal of forming the Malayan Union failed in 1946 but
the proposal to form the Federation of Malaya was agreed by the Malay rulers
in 1948. The Reid Commission was appointed to draft a Federal Constitution
for the Federation of Malaya. Under the concept of federation there were two

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levels of government, one being the Federal government and the other the
State government.
By the Federation of Malaya Agreement 1948 the Central Government

consisted of a British High Commissioner, an Executive Council and a
Legislative Council. The Legislative Councils had official members and
unofficial members, to be nominated by the High Commissioner.
At the state level there was a corresponding structure consisting of the Ruler,
an Executive Council and a legislative body, the Council of State, with both
official and unofficial members. The Rulers undertook to accept the advice of
the High commissioner except in matters relating to Muslim religion or the
custom of the Malays. The Federal Legislative Council could pass laws on
subjects within the field of state function, for purpose of ensuring uniformity
between states. Financially state revenue came not from taxes but the grants-
in-aid voted by the Legislative Council.
The Civil Law Ordinance (1956) was passed and under its provision Penang
and Malacca was added to the nine Malay states.
Section 3(1) provides:
“Save in so far as other provision has been made or may hereafter be

made by any written law in force in the Federation or any part thereof,
the court shall apply the common law of England and the rules of
equity as administered in England at the date of coming into force of
this Ordinance:
Provided always that the said common law and rules of equity shall be
applied so far only as the circumstances of the States comprised in
the Federation and their respective inhabitants permit and subject to
such qualifications as local circumstances render necessary.”
Section 5 provides:

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“In commercial matters the law to be administered are:
(a) If the issue arose anywhere with federation other than in

Malacca and Penang, the law to be administered ‘shall be the
same as would be administered in England in the like case at
the date of the coming into force of this Ordinance;
(b) If the issue arose in Malacca or Penang, the law to be

administered ‘shall be the same as would be administered in
England in the like case at the corresponding period’; unless in
either case other provision had been made or might have been
made by any written law.”
2.6 EAST MALAYSIA
East Malaysia refers to Sarawak and Sabah. Each state has its own legal history.
2.6.1 Sarawak
Sarawak originally was part of the Brunei Empire. It was ceded to James
Brooke who had assisted Raja Muda Hashim, in making peace among
warring tribes. James Brooke became Rajah of Sarawak in 1841 and he
introduced Kanun Ondang-ondang Lapan in 1843. Among the provisions
were penalties imposed onto offender who murder, plunder or exploit the
natives.
Brooke had appointed magistrates who were advised to apply broad

principles of justice to resolve disputes that arose among the people. Rajah
Brooke administered laws in forms of orders, notices, proclamations and
directions. James Brooke died in 1868 and by will bequeath “all that my
sovereignty of Sarawak…onto my nephew Charles Johnson Brooke, Tuan
Muda of Sarawak… and the heirs male of his body lawfully issuing and in
default… unto my nephew Stuart Johnson… and the heirs male of his body
lawfully issuing and in default of such issue I … bequeath the said

LAW 245
sovereignty and rights and privileges unto Her Majesty the Queen of England
her heirs and assign for ever…”
Charles Johnson Brooke ruled from 1868 to 1917. The Second Rajah
however established a Council Negri in 1865 which eventually became the
Legislative Council. The main function of this body was to determine the
customs that ought to be enforced as laws. Undang-undang Mahkamah
Melayu Sarawak was published in 1915 and the Muslim Wills Ordinance was
passed in 1896.
By a treaty dated 5 September 1888, Rajah Charles Brooke agreed that

Great Britain protect Sarawak but Britain have no right to interfere with the
internal governing of Sarawak. Britain however could control Sarawak foreign
relations and Sarawak should not cede the State without Great Britain’s
consent.
Rajah Vyner Brooke succeeded his father, in 1917 and his brother, Bertam
Brooke was Tuan Muda of Sarawak.
In 1922, the Rajah officially applied the Indian Penal Code and Criminal.
Procedure Code in Sarawak. He also compiled all the laws issues such as
Orders 1863-1913, by the former Rajah. The Red Book contained all state
orders issued from 1927 to 1933 including statutory law, rules, regulations
and instructions.
The application of English law was officially made under laws of Sarawak
Ordinance 1928. Section 2 provides:
“The law of England, in so far as it is not modified by Ordinances

enacted by the Governor with the advice and consent of the Council
Negri, and is so far as it is applicable to Sarawak having regard to
native customs and local conditions, shall be the law of Sarawak.”
In the case of S.M. Mahadar bin Datu Tuanku Mohamed v. Chee (1941)
S.C.R. 96, the appellant denied that he was the father of the illegitimate child.
However, section 36 of the Malay Undang-undang provided that a pregnant

LAW 245
woman’s oath that a particular man was the father of her child could not be
questioned. The court held the customary law in lieu of the bastardy laws of
England.
In Chan Bee Neo v. Ee Siok Choo (1947) S.C.R. 1 where the plaintiff sought
proof of a will which was, in whole or part, contrary of Chinese customary law.
It was held that while an administrator of the estate of a person dying in
estate may distribute in according to the recognised law or custom, an
executor of will must distribute the estate according to the will.
The two cases mentioned revealed how the court tries its best to apply the
1928 Ordinance as strictly as possible with due regard to native customs and
local conditions.
The Japanese occupied Sarawak in 1941 and Great Britain was unable to
offer protection called for under the 1888 Treaty. However, with the defeat of
the Japanese in 1946, Sarawak was ceded to the British government. In
1949, the official application of English law made under the Application of
Laws Ordinance 1949. Section 2 provides:
“Subject to the provisions of this ordinance and save in so far as other

provisions has been or may hereafter be made by any written law in
force in Sarawak, the common law of England and doctrines of equity
together with statues of general application as administered or in force
in England at the commencement of this Ordinance, shall be in force
in Sarawak.
Provided that the said common law, doctrines of equity and statutes of
general application shall be in force in Sarawak so far only as the
circumstances of Sarawak and of its inhabitants permit and subject to
such qualifications as local circumstances and native customs render
necessary.”
Section 3 provides:

LAW 245
“Without prejudice to the generality of the provisions of section 2 and

in amplification thereof, the Acts of Parliament of the United Kingdom
specified in the schedule shall, to the extent specified in the second
column of the schedule, be in force in Sarawak as from the date
specified in the third column of the schedule, with such formal
alterations and amendments as may be necessary to make the same
applicable to the circumstances of Sarawak, and in particular, subject
to the modification set forth in the fourth column of the schedule.”
Among Acts listed in the schedule were the Defamation Act 1952, Law
Reform (Miscellaneous Provisions) Act 1934, Law Reforms (Contributory
Negligence) Act 1945, Law Reform (Personal Injuries) act 1948, Law Reform
(Miscellaneous Provisions) Act 1949 and Law Reform (Enforcement of
Contracts) Act 1954. The Council Negri may be resolution amend the
schedule and add in any Act of the Imperial Parliament, whether enacted
before or after 1949.
When Sarawak became part of Malaysia the Civil Law Act (1956) (Revised
1972) was extended to Sarawak to govern the application of English common
law, equity and statutes of general application in Sarawak.
2.6.2 Sabah
In 1881, the British North Borneo Company was granted the Charter and
gave them rights to administer North Borneo. But slavery amongst the native
tribes must be discouraged, and by degrees abolished; complete religious
freedom was to be allowed and due regard be given to customary laws of the
natives, and the appointment of the Governor of the company needs the
approval of the Secretary of State. The Court of Directors appointed Sir
Williams Hood Treacher as the first governor to perform the onerous task.
Treacher set up the civil service and appointed the Commander of
Constabulary an Auditor-General, and agricultural superintendent,
mineralogical expert, a medical officer and assistant residents. The Governor
was answerable to the Court of Directions in London.

LAW 245
In 1883, an advisory council was formed to advise the government on various

matters. Representatives of native and Chinese communities were appointed
to the Council. In 1912, this Council became the Legislative Council and
proposed necessary legislation. The Company eventually adopted the
Residency and District system of local administration. The Resident was the
top civil servant and senior government officer who served many years as a
District officer. He acted as a liaison between the district officers and the
government secretary.
At first North Borneo was divided into two residencies, namely East Coast
Residency and West Coast Residency. But as more settlements were opened
it gave rise to five residencies. The local or district administration was an
integral feature of the Chartered Company rule in North Borneo.
Under the 1881 Chapter, the natives were allowed to practiced customs and
laws of the tribe with respect to the holding possession transfers and
disposition of lands, goods and succession matters, marriage, divorce,
legitimacy, and other rights of property and personal rights.
The Company made full use of the native chiefs and headmen in local
administration. In 1891, the system of village administration was established
under the Village Administration Ordinance and it empowered headmen to try
all cases involving natives, except where the crime was murder, kidnapping or
robbery.
The Company adopted legislations from British colonies such as India, Straits
Settlements and Fiji. Native customary laws were codified by G.C. Woolley,
Esq., of the North Borneo Civil Service. These codes formed the basis of
customary laws in Sabah. Among these are:
(i) Native Affairs Bulletin No. 1, Adat Timogun (1936)

(ii) Native Affairs Bulletin No. 2, Adat Tuaran (1936)
(iii) Native Affairs Bulletin No. 3, Adat Murut
(iv) Native Affairs Bulletin No. 4, Adat Dusun (1937)
(v) Native Affairs Bulletin No. 5, Adat Dusun
(vi) Native Affairs Bulletin No. 6, Adat Kwijau

LAW 245
(vii) Native Affairs Bulletin No. 7, Dusun Custom in Putatan District
The advisory Council endorsed 250 laws between 1881 to 1902. Apart from
statutes, English law was brought in by judicial decisions. The courts applied
the Penal Code, Criminal Procedure Code and the Evidence Act of India.
The official application of English law was Civil Law Ordinance 1938.
Section 2 provides:
“Gave in so far as other provision has been made or may hereafter be

made by any enactment in force in the State, the common law of
England and the rules of equity, other than any modification of such
law or any such rule enacted by statute as administered in England at
the date of the commencement of this Ordinance, shall, subject to the
provision of this Ordinance, be in force in the State.”
Section 3 states:
“The common law of England and the rules of equity as administered

in England at the date of the commencement of this Ordinance shall
be in force in the state so far as only as the circumstances render
necessary, and in the exercise of jurisdiction the Court shall have
special regard to the laws and customs of the inhabitants of the State
so far as they are not inhumane, unconscionable or contrary to public
policy.”
The Japanese invaded Sabah in 1941 and at the end of Japanese occupation
Sabah became a Crown Colony via an agreement signed on 26 June 1946
between the Chartered Company and the British and the British government.
British Military Administration rules Sabah and application of English law was
officially made via the North Borneo Applications of Laws Ordinance 1951
with provisions similar to that of Sarawak 1949 Ordinance. When Sabah
became part of Malaysia the Civil Law Act 1956 (Revised 1972) was enacted.

LAW 245
In summary the legal history of Malaysia enable us to trace the uses of

customary law, Islamic law and English law during the early days of British
colonisation and elaborate the administration of the various sources of law
during the various periods of administration.
CHECKLIST
At this point you should be able to:
9 understand the history of the development of the sources of law in Malaysia

9 appreciate the development of the courts system
9 analyse the factors and events that influence the development of the legal system of
Malaysia.
EXERCISE
(a) Discuss the modes of punishment practiced by the Negrito and Senoi.
(b) Discuss the laws applied by the Malaccan Sultanate.
(c) Trace the application of English law in West Malaysia.
(d) Trace the application of English law in the Strait Settlements.
(e) Elaborate on the application of English law in Sabah and Sarawak before 1963.
REFERENCES
To assist students in understanding the lesson reference may be made to the following
books.
(i) Wu Min Aun, Introduction to the Malaysian Legal System, 3rd Edition (Kuala Lumpur:
Heinemann) 1994, Chapter 1.
(ii) Wan Arfah hamzah and Ramy Bulan, An Introduction to the Malaysian Legal System
(Penerbit Fajar Bakti Sdn Bhd) 2003.

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Legal History of Malaysia Chapter 2

Legal History of Malaysia

West Malaysia East Malaysia

a) Era of Early Settlers in West a) Sarawak

Figure 2.1 The Structure of Chapter 2

1. understand the history of the development of the sources of law in

2.1 LEGAL HISTORY OF WEST MALAYSIA

The Legal history of West Malaysia could be divided as follows:

• Era of the Early Settlers in West Malaysia

2.2 ERA OF EARLY SETTLERS IN WEST MALAYSIA

In summary, it can be concluded that the early settlers do possess a

2.3 ERA OF THE MALACCAN SULTANATE

2.4 ERA OF PORTUGUESE AND DUTCH ADMINISTRATION

Ecclesiastical matters however were handled by a special committee. Regulations

In summary, it could be concluded that the administration of both Portuguese and

2.5 ERA OF BRITISH COLONISATION

The era of British colonisation can be divided into the following:

2.5.1 Straits Settlements

the Anglo-Dutch Treaty of 1824. The three settlements were amalgamated

Application of English Law

When Francis Light occupied Penang he received directives from the

To overcome administrative problems Light appointed head of villages and

The First Charter of Justice was granted to Penang in 1807. A Court of

“Bound by the uniform course of authority to hold the introduction of

By the Government of Straits Settlements Act 29 and 30 Vic.c. 115 passed on

In 1868, the Court was re-constituted by Ordinance V of 1868. The Court of

By Ordinance V of 1873 the Supreme Court was further reconstituted. The

“In this colony, so much of the law of England as was in existence

“The law of England must be taken to be the governing law, far as it is

By virtue of this ordinance English Acts such as the Sale of Goods,

In Re Maria Huberdina Hertogh (1951) 17 MLJ 164, the marriage between

2.5.2 Federated Malay States

In 1909, a Federal Council was created and consisted of the High

Legislation Council (this body was the forerunner of the Conference of

Application of English Law

By 1878, in Selangor Magistrates’ courts were established in Klang, Langat,

In 1882, a Chief Magistrate was appointed to Selangor and a Senior

Among legislation that were later introduced to consolidate law relating to

Under these regulations, the Residency Court, the Senior Magistrates’s

The Senior Magistrate’s Court consisted of the Resident, the Senior

“….The general law of England was never introduced or adopted here

Section 2(1) of the Civil Law Enactment 1937 provides:

“Save in so far as other provision has been or may hereafter be made

permit and subject to such qualifications as local circumstances

2.5.3 Unfederated Malay States

In Duff Development v. State of Kelantan (1924) A.C. 797, where a company

2.5.4 Federation of Malaya

By the Federation of Malaya Agreement 1948 the Central Government

Application of English Law

Section 3(1) provides:

“Save in so far as other provision has been made or may hereafter be

“In commercial matters the law to be administered are:

(a) If the issue arose anywhere with federation other than in

(b) If the issue arose in Malacca or Penang, the law to be

2.6 EAST MALAYSIA

Brooke had appointed magistrates who were advised to apply broad

By a treaty dated 5 September 1888, Rajah Charles Brooke agreed that

“The law of England, in so far as it is not modified by Ordinances

“Subject to the provisions of this ordinance and save in so far as other

“Without prejudice to the generality of the provisions of section 2 and

In 1883, an advisory council was formed to advise the government on various

(i) Native Affairs Bulletin No. 1, Adat Timogun (1936)