FIRST CHARTER OF JUSTICE

The introduction of the Charter of Justice left a big impact in the development of the legal system in Malaysia which
led to the implementation and adoption of the Law of England in the Malaysian legal system accordingly. Based on
the case of Fatimah V Logan. Per Hackett J who is the Judge stated that ‘The implementation of the Law of England
was made into this settlement immediately concerning possession taken in the name of the King of England. The laws
previously existed will be immediately ceased.

The administration of British in the Straits Settlements began when the three Charters of Justice had been introduced
from 1807 to 1855. The first statutory introduction of English Law to Malaysia was the First Charter of
Justice. English Law was introduced to Penang on 25 March 1807. The First Charters of Justice was
introduced in 1807 which was granted by the British Crown. As a result, a ‘Court of Judicature of Penang’ was
established. The court has wide jurisdiction to cover civil and criminal as well as ecclesiastical matters as far
as the local conditions and inhabitants would admit.
It outlined the law to be applied in criminal and civil cases. With regards to the criminal law, the Charter enjoined the
court to hear and determine indictments and offences, and give judgement and sentence, with the responsibility to
administer criminal justice in circumstances nearly as in England.
With regards to civil cases, there were at least two provisions in the Charter which were important. First, there
was a direction in the Charter that in civil cases, the court shall give and pass judgement and sentence according to
Justice and Right. Secondly, the Charter provided that the court shall have ecclesiastical jurisdiction and only
exercised so far as in the circumstances in which the local inhabitants permit. It establishes the Court of Judicature of
Penang which has wide jurisdiction to cover civil and criminal as well as ecclesiastical matters as far as the local
conditions and inhabitants would admit. It establishes the ‘Court of Judicature of Penang’. The court has wide
jurisdiction to cover civil and criminal as well as ecclesiastical matters as far as the local conditions and
inhabitants would admit, such as religion, manners and customs of the inhabitants.

Sir Ralph Rice, the English Judge interpreted the above provisions by saying that the criminal law was the
only part of the law of England, which was in force in Penang, and in all civil matters, justice was to be
administered among the native population in accordance with their respective laws and customs.

However, two subsequent decisions of two English judges, Recorder Maxwell and Recorder Malkin, put
paid to the ‘enlightened’ opinion of Sir Ralph Rice. Their judgments changed the ‘climate’ of the Malaysian
legal system into British-based legal system until nowadays.

The introduction of the Charter had influenced several cases in Penang. One of the cases is Kamoo v
Thomas Bassett where the Chapter of Justice applied retrospectively to civil injuries which were sustained and
crimes which were committed before the charter came into force. In this case, it is clear that the Charter produced
retrospective effect. The second consequence incurred was that there was a formal application of English
Law and ignorance of Islamic Law.
Next is the case of Re Goods of Abdullah. The issue is whether a Muslim who died in Penang could dispose
his entire property by means of a will and what laws were to be applied. It was established that under Islamic law a
Muslim can devise 1/3 of his property to non- beneficiaries. The judge held that by virtue of 1st Charter in 1807, a
Muslim might by will transfer his own property even though it is contrary to the Islamic law. The religions and
customs of the local inhabitants were recognized as exceptions to the general application of English Law.
In the case of Fatimah v Logan, the deceased in his will mentioned a particular land in Penang that was to be
for waqf and kendoories. This issue was what law to be applied to determine the validity of the will. It was held by the
Charter 1807, the law of England became the law of the land all who settled there became subject to the law.
During 1795, British took over possession of Melaka from the Dutch. The reoccupation of Melaka by the
Dutch in 1818 did not bring any changes either, because they did not care much about Melaka as they only cared
about their own country and their stay was understood to be temporary. During their occupation, the British did not
pay much attention to the reorganization of the Melaka administration . Only when as a result of the Anglo Treaty of
1824, the English took eternal possession of Melaka in 1825 and they planned to initiate the normal administration of
law. In 1826, when Melaka joined the agreement, a Royal Charter of Justice prolonged the authority to Malacca and
Singapore, thus presenting the British law into these agreements.
SECOND CHARTER OF JUSTICE
In 1826, the Straits Settlements was incorporated with Penang, Singapore and Melaka under the
control of British India. In the same year, the Second Charter of Justice was granted by the British
Parliament on the petition of East India Company (hereinafter referred to as “EIC”) into the Straits
Settlements on 27 November 1826. As a result, a new ‘Court of Judicature of Prince of Wales’ Island,
Singapore and Melaka’ was established.

The Second Charter of Justice was introduced in Melaka as a result of the Anglo-Dutch Treaty 1824 when the
British took permanent possession of Melaka in 1825. Malacca and Singapore were united together with Penang,
forming the Straits Settlements on November 27, 1826 .The objective is to extend the jurisdiction of the Court of
Judicature of Penang to Singapore and Melaka. The new court was named as the Court of Judicature of the Prince of
Wales Island, Singapore and Melaka. The Second Charter of Justice reiterated the content of the First Charter
of Justice with minor amendments and extended its application to Singapore and Melaka. The effect of the
Second Charter of Justice was addressed by Sir Benjamin Malkin in the Melaka case of Rodyk v Williamson where
it was stated that the Charter had introduced the law of England as it stood in 1826 so as to supersede Dutch law in
Melaka. In this case, a Dutchman passed away and left his property and the issue was whether the Dutch law or the
English law should be applied to settle the matter. Therefore, the Dutch law was superseded by the Charter. The
Charter was aimed to broaden the jurisdiction of the Court of Judicature of Penang to Singapore and Melaka.
Singapore and Melaka were named the Court of Judicature of the Prince of Wales Island as the new court. The
introduction of the law of England means that any previous existing law will be abrogated.

In 1833, the Governor-General of India was empowered to legislate for the Straits Settlements with the
reorganization of the EIC’s possessions by the British Parliament. During this period, the local business
community was dissatisfied with the inadequate judicial framework which meted out justice infrequently
and poorly.

In fact, the First and Second Charter of Justice did not introduce English law in its entirety, whereby the
local community was allowed to a certain degree to continue to follow and practice their religion, customs,
usages and habits. Moreover, the third Recorder of Penang, Sir Ralph Rice, observed that the effect of the
First Charter of Justice was the introduction of English law only for criminal matters, whereas in civil
matters the inhabitants continued to be governed by their respective laws and Customs. Therefore, the Third
Charter of Justice was introduced with the intention to restructure the administration of justice.
THIRD CHARTER OF JUSTICE
The Third Charter of Justice was granted on August 12, 1855 due to rapid changes, increasing the number
of population and commercial activities. The British authority in the Straits Settlements had introduced the Court of
Admiralty which was divided into two divisions. One having jurisdiction over Singapore and Malacca consisting of a
Governor or Resident Counselor and Recorder of Singapore. The other having jurisdiction over Penang consisting of
Governor or Resident Counselor and Recorder of Penang.The Court of Judicature of Prince of Wales Island, Melaka
and Singapore was dismissed by the Resident Counsellor. Then, the Court of Judicature was replaced and renewed by
the Supreme Court of Straits Settlements.
The effects of the Charters of Justice on the Islamic Law is that the status of Islamic law was slightly
affected. The tendency of the British to apply English law to the local inhabitants invites many critics and arguments
because some of Muslim matters were held in accordance of English law and against Islamic law itself. This can been
seen in various cases involving Muslim personal matters in Straits Settlements such as succession, will, validity of
marriage and so on.

Sir Richard Bolton McCausland was appointed as the Recorder for Penang whereas Sir Peter Benson
Maxwell was appointed for Melaka and Singapore. However, the Third Charter did not improve the state of
affairs and the period that followed witnessed further restructuring of the courts, which was necessary after
handover of the Straits Settlements by the East India Company to the Colonial Office in London in 1867. In
1868, the Court of Judicature of the Prince of Wales Island, Singapore and Malacca was abolished and
replaced by the Supreme Court of the Straits Settlements with some further reconstructions. The most
notable development was the establishment of the new court known as the ‘Supreme Court of the Straits
Settlements”, with the Recorders reappointed as judges.

This was due to the strategic Location of the Malay Peninsular. Due to its strategic position between the
Indian Ocean and the South China Sea, Malaysia (then Malaya) has long been the meeting place for traders
and travelers from West and East. Malaya, somewhat romantically referred to as the meeting point between
the East and the West, lies between the Straits of Malacca and South China Sea. Traders from the West have
no other choice but to travel along the narrow straits to avoid the torrential monsoons in Indian Ocean.
Another reason is the natural richness of SouthEast Asia, supplying everything from the tin required for the
industrial revolution in Britain to spices desperately needed to preserve meat during the winter months.
Hence its history is one of continual interaction with foreign powers and influences.

The second reason is economic interest. According to Prof. Dr. Khoo Kay Kim, the intervention of the
British in the Malay States was because of the economic opportunity for them to manipulate the natural
resources such as tin and rubber. The Industrial Revolution in the European countries led them to explore the
new frontier to develop their countries well. By monopolizing the natural resources, they could actually gain
a lot of benefit in their economic area.

The opening of the Suez Canal in 1869. This opportunity had been manipulated by the British to sail to the
East very fast. By this opening, they could strengthen their position in the East and slow down the other
European power here.

The change of the political scenario In British. In 1873, the Conservative Party under the leadership of
Disraeli had changed the non-interference policy towards the interference policy in the Malay States for
their political and economic mileage. They started to appoint their own leaders in the Straits Settlements and
the Malay States for the assurance of the power in administering the States. They were involved in several
agreements such as Pangkor Treaty 1874 and other agreements with the respective Malay States in the way
to conquer the administration of the States. The Civil War between the thrones gave them a good chance for
interference.

The development of the Industrial Revolution in Europe In the 19th Century. Tin was one of the vital
sources in the industrial activities for Tin Corporation in Britain. British were afraid the other rival European
countries like America would monopolize the source. Britain needed more new sources to develop their
factory products and this even more conflicted when the interest of merchandise between them and China
was affected in 1833.
Effort by Sir Andrew Clarke. While being a Governor in the Strait Settlements, he changed a lot of policies.
On 20th January 1874, he signed the Pangkor Treaty with Sultan Abdullah and that was the beginning of the
British intervention in the Malay States.

Other European powers. British wanted to end up the other European power such as the Dutch in the Malay
Archipelago. As such, they acquired Penang (1786) and Singapore (1819) in order to widen their power in
the Malay States.

Furthermore, British were trying to maintain peace and taking advantage of dynastic quarrels. They
persuaded the Malay rulers to accept British “Residents” as advisors. Before World War II, the native states
under the British influence were classified as federated or non-federated. The main difference between the
two groups was that British control was somewhat looser in the non- federated states. The Federated Malay
states were Perak, Selangor, Negeri Sembilan, and Pahang. The non-federated states were Johor and the four
northern states, which were acquired by the British from Siam in 1909. At the top of the British system of
rule was a high commissioner, who was also governor of the Straits Settlements.

The war in Naning and Sungai Ujong. It occurred after the fall of Melaka in 1641. The ‘open door’ for the
British to interfere with the administration started when a conflict occurred between Dol Said and the British
garrison ended up with the British able to eliminate their enemies through several wars and treaties with the
Penghulu. Sir Robert Fullerton (Governor) and WT Lewis (the assistant Resident Counselor of Melaka) had
abolished the Penghulu post and Naning was administered under a British Officer. In 1860 at Sungai Ujong,
Governor Cavenagh had interfered in order to stop the headman of Rembau from collecting taxes and
revenues from British merchants.

Britain’s ambitions to acquire Siam’s Malay Vassals (Patani, Kedah, Perlis, Kelantan, and Terengganu),
resulted in the Anglo-Siamese treaty of 1909, by which Bangkok relinquished authority over all the northern
Malay states except Patani in return for diplomatic privileges. Johor remained independent until 1914, but its
incorporation into British Malaya was simply a matter of time because its economy was so closely tied to
financial interests in Singapore. In 1919, when Terengganu finally accepted a British adviser, the entire
peninsula, consisting of the Straits Settlements, the Federated Malay States, and the Unfederated Malay
States, came under colonial control.

In the case of Re Maria Huberdina Hertogh, the facts of the case is that Maria Hertogh who was brought up
as a Muslim called Natrah. During that time, Maria’s father, a Dutch citizen, was a prisoner of war. After the war, the
father commenced proceedings in the High Court in Singapore seeking Maria’s custody, but the proceedings were
held to be a nullity. Maria was then married to Mansur bin Adabi in Singapore. After that the father resumed
proceedings, this time asking for declaration, inter alia, that the marriage was invalid that he, as Maria’s father, be
given custody of the child. The court held that since Maria was under 16 years of age during the purported marriage,
the marriage was not valid because according to her lex domicili (i.e. the law of Holland), the consent of the Queen of
Holland was a precondition for its validity. As the consent had not been obtained, the marriage was void and that
being so custody was awarded to the father.
In the case of Hawa v Daud, marriage and divorce was held valid although the courts experienced difficulty
in deciding suits which involved rules from various schools of Islamic law.

There were serious limitations upon the court’s jurisdiction which existed by virtue of the Charter.
The court refused to apply any jurisdictions based on Islamic Law and follow civil side to recognize suit for
restitution of conjugal rights as mentioned in the case of Syeikh Madar v Jaharrah and suits involving the
validity of Muslim divorce as held in the case Adolomeh Kakah v Lebby Dian.

In term of determining the age of majority for marriage as held in Noordin v Syeikh
Mohd Neah Nordin, Islamic law was referred to English Law; however, In the case of Mong v Daing Mokkah,
the court held that a Muslim woman was entitled to bring an action in the civil court for damages for breach of
promise to marry. The principle of English law was expressly applied to prevent injustice.
 In the case of Nafsiah v Abdul Majid, the plaintiff alleged that the defendant promised that he would marry
her. This promise was subsequently reduced into writing. The plaintiff also alleged that she was seduced by the
defendant and became pregnant and a child was born., The defendant raised the question of jurisdiction of the High
Court to hear the case. The defendant also denied ever having made any promise to marry her and ever seduced her.
He also denied that he was the father of the child. He also said that the written document of promise to marry the
plaintiff was void ab initio because he was forced to sign the documents under duress. The court held that the Court of
Judicature Act 1964 prevailed over any other written law other than the Federal Constitution, and expressly bestowed
upon the High Court jurisdiction to claims for damages arising out of breach of promise to marry and such jurisdiction
was not excluded merely because the parties are Muslims.
In the present day of Malaysia, the status of Islamic Law was getting more and more affected by the
colonization of the British to the land. The tendency of British to apply English Law rather than Islamic Law to the
local inhabitants forces many arguments because some Muslim were held accordance with English Law and against
Islamic Law itself. People were afraid of Shariah courts because it has jurisdiction over both the civil and criminal
matters. The jurisdiction of Syariah courts in criminal cases only to Muslims and relating to offences were restricted
under the Shariah Courts (Criminal Jurisdiction) Act 1965 in the present day of Malaysia. For example, gambling,
non-payment of zakah, adultery, khalwat, fornication, ill-treatment of wife, intoxication, disobedience of wife, and
disrespect for Ramadan. However, the court insisted that Islamic Law is very important to Malaysia because it is a
part of the people and their religion.
Conclusively, it has evolved over time and the law has remained applicable to the Malays before the colonial
masters and even after they have left. Treating Islamic law as a foreign law is therefore unacceptable and banned
forever.