MALAYSIAN LEGAL HISTORY

Chapter 1
Ref: Wu Min Aun, Chap. 1
 Lecture outline
 Introduction
 Malaysia up to 1824
 The Straits Settlement & the Introduction
of English Law
 The Malay States
 Sabah & Sarawak
 Introduction
 3 significant period of events shaping the
Malaysia’s contemporary legal system:

Malacca Sultanate 15th C

Spread of Islam to SEA

British colonial rule Fr end of

18th C
 Malaysia up to 1824
 Pre-Malacca Sultanate: earliest Malaysians
 Malacca Sultanate
 Portuguese & Dutch periods
 Earliest Malaysians
FIRST INHABITANTS

BORNEO
35K years ago
Stone age PENINSULAR MALAYSIA
Middle Stone age
8000 – 2000bc
 •Arrived: Middle Stone Age
•Ancestors present Negritoes & Senoi
NEGRITOES •Nomadic tribes
SENOI

•Arrived: 2500 – 1500BC

PROTO-MALAYS •From Southern China
•Ancestors of present Dayaks in
(Orang Melayu Asli) Borneo

•Arrived in 300 BC
DEUTRO-MALAYS •From Yunnan (southwest China)
•Ancestors of present Malays &
other related group
 NEGRITOES
 Headed By elders.
 He was a Medicine man.
 Have similar position in his tribe.
 Type of Offences:
 Stealing blowpipes.
 Running away with other person’s wife.

 Killing.

 Cheating.
 Continue…
 Example of Punishment:
 Cheating.

 By Poor: people of the tribe would yell, shout

and scream at the person angrily.

 By Rich: pay fine or the person would be tied

at a tree until he/she agree to pay.
 SENOI
 Headed by Penghulu.

 He has power to solve civil or criminal

cases (except murder).
 Continue…
Offences Punishments
Murder Killed by victim’s family
Steal Expel from the tribe
Fight over Fine
woman
 Continue…
 Land Possession:
 Land does not belong to anybody.
 They worked together and share benefits
from the land.
 Head of the tribe has power to divide land
among his people.
 The land could be inherited by family
members.
 Melayu-Deutro
 Ancestors of present Malay.
 More advanced than the previous tribe.
 Headed by Batin.
 Assisted by jinang, penghulu balai, jukrah
and panglima.
 Laws of the tribe are administered by
Batin and elders (the old men in the
tribe).
 Continue…
 Melayu-Deutro are divided into many
clans.
 Each clans have their own laws.
 Offences are punished with fines.
 Fines are paid with Chinese saucer (piring
china).
 Example of offences and its punishments:
 Continue…
 Murder in the same clan = killed by the
victim’s family.
 If murdered by other clan = pay with 100
pieces of chinese saucer.
 Other influences
KINGDOM OF FUNAN •exerted their influences in
INDOCHINA SEA
HINDU – 1ST C
•Hindu & Buddhist tenets:
fused with animistic
SRIVIJAYA
practices
SUMATRA
BUDDHIST – 7TH C •integral part of indigenous
culture
MAJAPAHIT
BUDDHIST – 14TH C •Followed with influence of
Islam 14th C
 Malacca Sultanate
 AD 1400: established as important port.
 Direct impact: spread of Islam by Indian
traders & Arabs.
 Islam absorbed into the Malay culture
mixed with Hindu custom and animistic
tradition.
 Malacca Sultanate
 Law administered - combination of:
 Islamic law &
 Adat Temenggung

The legal rules were shaped by 3 main influences:

1. Early non-indegenous Hindu / Buddhist tradition
2. Islam
3. Indigenous adat
 Malacca Sultanate
Undang-Undang •Covercriminal & civil matters
Melaka •Some aspects of Islamic law

(Hukum Kanun
Melaka)

Undang-Undang Rules & regulations to be observed

Laut Melaka at sea.
Malacca Sultanate: Admin of Law
•Administer law
BENDAHARA •Exercise both
political & judicial
function

TEMENGGUNG •Apprehending
criminals
•Maintaining prisons
•Keeping peace

SYAHBANDAR
Welfare of foreigners
residing in the State
 Malacca: Portuguese & Dutch
PORTUGUESE DUTCH
•1511 – 1641 •1641–1795 & 1801-1807

•Magistrate: settle civil •Magistrate: settle civil

dispute & try criminal cases dispute & try criminal cases

•Presumed: Portuguese law •Presumed: Dutch law

Portuguese & Dutch laws made relatively little impact on the Malaysian
contemporary legal system.
 The Straits Settlement:
How British secured them?

PENANG Francis Light obtained Penang fr Sultan of Kedah

1786 on assurance to protect Kedah against Siam

SINGAPORE 1819: Stamford Raffles recognised the elder son

1819 of Sultan Mahmud as the rightful Sultan in
exchange of permission to establish factories.

1824: treaty – S’pore ceded to British by Johor.

MALACCA Acquired from Dutch in exchange of Bencoolen
1824 by Anglo-Dutch Treaty
 Penang

Singapore Malacca

Straits Settlement

1826
 Administration of law & order in
Penang
 The judicial hierarchy in Penang: 1786 –
1807.
 •Francis Light: first
•Authority: “To preserve good order
SUPERINTENDENT as well as you can”
•Jurisdiction over inhabitant only
NOT British subjects
•No power to carry death sentence

MAGISTRATE
Try more important / serious cases
Decisions had to be approved by SI
SECOND
ASSISTANT

•Deal with petty cases among

local inhabitants
LOCAL HEADMEN •Keep registers of marriage, birth,
slaves & sales of land & houses
 FORMAL INTRODUCTION OF
ENGLISH LAW IN PENANG

ROYAL CHARTER OF JUSTICE 1807

•Established: The Court of Judicature of Prince of

Wales’ Island
•Jurisdiction: civil, criminal & ecclesiastical matters.
•Governing law: Law of England as it stood in 1807
subject to local conditions & circumstances.
 Kamoo v Basset 1808:
 The Charter was taken as introducing to
Penang the law of England as it stood in 1807
subject to local condition

 Affirmed by:
 Ong Cheng Neo v Yeap Cheah Neo [1872]
 Singapore: admin of law
 The law applied: British law subject to
local circumstances
 Caused legal confusion: lack of knowledge
of local law & custom
 12 magistrates (British merchants): to try
petty civil & criminal cases
 Malacca: admin of law
• Law applied at the time of transfer of Malacca
from Dutch to British (1824):
• Malay customary law
• Islamic law
• Customary law of other non-Malay inhabitants
• Certain Dutch laws

• There was uncertainties as to the extent of

British law to be applied in Malacca
 ROYAL CHARTER OF JUSTICE 1826

•Established: The Court of Judicature of Prince of Wales’

Island, Singapore & Malacca

•Jurisdiction: civil, criminal & ecclesiastical matters.

•Governing law: Law of England as it stood in 1826 subject

to local conditions.
•One professional judge (“Recorder”) assisted by lay
judges
 ROYAL CHARTER OF
JUSTICE 1855
 Re organisation of whole court system
 Additional Recorder 4 all the states
 Separate registrar appointed for each of 2
divisions of court.
 Further change in the judiciary:
after 1867
 Recorder of S’pore – Chief Justice of SS
 Penang Recorder – Judge of Penang

 Appointment of Law Officers of the Crown

 Attorney General
 Solicitor General

 Court of Judicature abolished – Supreme Court

of the SS
 Further change: 1873
 Supreme Court: 4 judges:
 Chief Justice
 Judge of Penang
 Senior Puisne Judge
 Junior Puisne Judge

 The Court of Quarter Sessions

 criminal court
 Presided over by Senior & Junior Puisne Judges in
S’pore & Penang respectively

 Court of Appeal
Malay States: political hierarchy

SULTAN

CHIEF DISTRICTS

VILLAGE HEADMEN

CONSTABLE
 Malay States: the law applied
 Islamic law
 Customary law (adat)
 Adat Temenggung
 Adat Perpateh

Digests of laws compiled:

1. Ninety-Nine Laws of Perak
2. Pahang Digests 1596
Intro of English Law to Malay States

RESIDENTIAL SYSTEM
1888

PERAK N SEMBILAN

SELANGOR PAHANG

Federated Malay States

1895
 Federated Malay States
High Commissioner of Federation
(Governor of Straits Settlements)

Resident-General

4 Residents

The advice had to be asked & acted upon in Sultan

all matters of admin & revenue
exc Malay religion & custom
 Unfederated Malay States
 Johor:
 written constitution (1895)
 British Resident - 1914
 Kedah, Perlis, Kelantan, Terengganu:
 Anglo-Siamese Treaty of 1909
 British Adviser
 Sovereignty of Malay States
vis-à-vis
the Straits Settlement
 Mighell v Sultan of Johor [1894]
 Duff Development Co Ltd v Govt of
Kelantan [1924]
 Pahang Consolidated Co Ltd v The State of
Pahang
 The British rule over Malay States

 Theoretically independent & ruled by their

sovereigns
 Governing laws:
 Malay: Customary laws & Islamic laws
 Non-Malay: own personal laws & English law (British
subjects)
 English law imported through:
 Direct legislation
 Legal profession
Formal introduction of English law
to Malay States
Civil Law Civil Law (Extension)
Enactment 1937 Ordinance 1951

Federated Malay States Unfederated Malay States

CIVIL LAW ORDINANCE 1956