I Will Follow You
As some of you may be aware of, Malaysia was once a colony of the British. Malaya gained its independence on 31st August 1957, and Malaysia was formed when Sabah and Sarawak joined on 16th September 1963. What many are not aware of is how the law of England and Wales has influenced the law in Malaysia and this article attempts to shed some light on the matter.
The gradual development of Constitution and Law in Malaysia is seen from the history of the Straits Settlements (Penang, Malacca, and Singapore). The Straits Settlements progressed from being originally an appendage of the British East India Company to becoming the leading Crown colony. The Straits Settlements were transferred to the care of the Secretary of State for the Colonies by an Order by the Council in 1st April 1867.
The island of Penang was the first territory to be acquisitioned by the British in Malaysia. Captain Francis Light, for the East India Company, obtained a cession of the island from the Sultan of Kedah in 1786. Thus began the era of British colonialism in Malaysia.
The introduction of the Royal Charter of Justice of 1807 is the most significant event in the Malaysian legal history, marking the beginning of the statutory introduction of English law into the country. The Charter established ‘The Court of Judicature of Prince of Wales Island’ (as Penang was then known) to exercise jurisdiction in all jurisdiction in all civil, criminal and ecclesiastical matters. It was interpreted by the courts as introducing to Penang the law of England as it stood in 1807 in so far as it was suitable to local conditions and circumstances. That interpretation was made in Kamoo v Bassett (1808) and was subsequently affirmed by the Privy Council in Ong Cheng Neo v Yeap Cheah Neo & Ors (1872) 1 Ky, where it was held that English law could be taken to the governing law so far as it was applicable to the circumstances of the place and modified in its application by these circumstances.
In 1826, the three settlements of Malacca, Penang and Singapore were incorporated into the Straits Settlement. The Charter of 1826, known as the Second Charter, extended the jurisdiction of the Court of Judicature of Prince of Wales Island (Penang) to Singapore and Malacca. The Second Charter contained the same provisions as the First Charter, and was considered to have introduced the law of England as it stood in 1826 into the Straits Settlements. When the Second Charter was granted and applied in Singapore and Malacca, it was equally applied to Penang. A new court called ‘The Court of Judicature of Prince of Wales Island, Singapore and Malacca’ was created by the Second Charter and English law was applied subject to local conditions. The application of English law in the Straits Settlements was subject to such modifications of the various races as were necessary to prevent it from operating unjustly or oppressively. Where civil law is concerned, Penang and Malacca are now with the rest of the Federation, governed by section 3 of the Civil Law Act 1956 which introduced the Common Law of England and Rules of Equity as administered in England on 9 April 1956.
Through a series of treaties and by 1888, the British control of the Malay states of Perak, Selangor, Pahang and Negeri Sembilan was firmly established whereby the rulers of these states agreed to accept the advice of the British via the British Residents.
The Penal Code of the Straits Settlements based on the Indian Penal Code was first adopted by Perak by Order in council of 28th June 1884 and later by other states. The Evidence Ordinance of the Straits Settlements based on the Indian Evidence Act was first adopted by Selangor by the Courts Regulation of 1893 and then by other states. The Criminal Procedure Code of India was adopted and enacted in the various Malay States constituting the Federated Malay States in 1900 and eventually incorporated in the Revised Edition of 1936 as Chapter 6. The Civil Law Enactment 1937 gave statutory authority for the introduction of English Common Law and Rules of Equity to the Federated Malay States. In 1951 the Enactment was extended to the other Malay States and in 1956, the Civil Law Act introduced English law to the entire Federation of Malaya.
Sabah and Sarawak are referred to as the Borneo States. In 1841, James Brooke became the ruler of Sarawak. In 1843, eight laws were prepared, printed and published in Malay as a first step by James Brooke. Sabah and Sarawak were protectorates from 1888 to 1946, and therefore there could have been no common law reception of English law before 1946 and in both territories there was no statutory reception until relatively late.
Sarawak was the first, with the Order L-4 (Laws of Sarawak) 1928, section 2 of which provides:
‘The Law of England, in so far as it is modified by Ordinance enacted by the Governor with the advice and consent of the Council Negeri, and in so far as it is applicable to Sarawak having regard to native customs and local conditions, shall be the law of Sarawak.’
Sabah followed the Civil Law Ordinance of 1938, which made the following rather more complicated provision:
‘Save in so far as other provision has been mad 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 provisions of this Ordinance, be in force in the state. The common law of England and the rules of equity administered in England at the date of the commencement of this Ordinance be in force in the State so far as only the circumstances render necessary; and in the exercise of jurisdiction, all courts shall have special regard to the laws and customs of the inhabitants of the State so far as they are not inhuman, unconscionable or contrary to public policy.’
The written law of the Borneo States derived largely from legislation in force in Singapore and the Federation and therefore indirectly from the written laws in India and the United Kingdom. The Indian Penal code was applied in Sarawak by the Courts Order 1922, and continued in force by Order No. 1-1 (Interpretation) 1933, before the Penal Code was enacted in 1934. The North Borneo Penal Code dates from 1959 while Sarawak adopted the Civil Procedure Code in the same year. The reception of English law in the Borneo States was then formalised by the Sarawak Application of Law Ordinance 1949 and the North Borneo Application of Law Ordinance 1951.
The emergence and development of common law and the rules of equity in the English context have impacted countries that employ the common law system, including India, Singapore and Malaysia. The transplantation of the common law in England and the rules of Equity into Malaysia was not completed overnight, but was rather a process that spanned the length of many years.
Source:
The gradual development of Constitution and Law in Malaysia is seen from the history of the Straits Settlements (Penang, Malacca, and Singapore). The Straits Settlements progressed from being originally an appendage of the British East India Company to becoming the leading Crown colony. The Straits Settlements were transferred to the care of the Secretary of State for the Colonies by an Order by the Council in 1st April 1867.
The island of Penang was the first territory to be acquisitioned by the British in Malaysia. Captain Francis Light, for the East India Company, obtained a cession of the island from the Sultan of Kedah in 1786. Thus began the era of British colonialism in Malaysia.
The introduction of the Royal Charter of Justice of 1807 is the most significant event in the Malaysian legal history, marking the beginning of the statutory introduction of English law into the country. The Charter established ‘The Court of Judicature of Prince of Wales Island’ (as Penang was then known) to exercise jurisdiction in all jurisdiction in all civil, criminal and ecclesiastical matters. It was interpreted by the courts as introducing to Penang the law of England as it stood in 1807 in so far as it was suitable to local conditions and circumstances. That interpretation was made in Kamoo v Bassett (1808) and was subsequently affirmed by the Privy Council in Ong Cheng Neo v Yeap Cheah Neo & Ors (1872) 1 Ky, where it was held that English law could be taken to the governing law so far as it was applicable to the circumstances of the place and modified in its application by these circumstances.
In 1826, the three settlements of Malacca, Penang and Singapore were incorporated into the Straits Settlement. The Charter of 1826, known as the Second Charter, extended the jurisdiction of the Court of Judicature of Prince of Wales Island (Penang) to Singapore and Malacca. The Second Charter contained the same provisions as the First Charter, and was considered to have introduced the law of England as it stood in 1826 into the Straits Settlements. When the Second Charter was granted and applied in Singapore and Malacca, it was equally applied to Penang. A new court called ‘The Court of Judicature of Prince of Wales Island, Singapore and Malacca’ was created by the Second Charter and English law was applied subject to local conditions. The application of English law in the Straits Settlements was subject to such modifications of the various races as were necessary to prevent it from operating unjustly or oppressively. Where civil law is concerned, Penang and Malacca are now with the rest of the Federation, governed by section 3 of the Civil Law Act 1956 which introduced the Common Law of England and Rules of Equity as administered in England on 9 April 1956.
Through a series of treaties and by 1888, the British control of the Malay states of Perak, Selangor, Pahang and Negeri Sembilan was firmly established whereby the rulers of these states agreed to accept the advice of the British via the British Residents.
The Penal Code of the Straits Settlements based on the Indian Penal Code was first adopted by Perak by Order in council of 28th June 1884 and later by other states. The Evidence Ordinance of the Straits Settlements based on the Indian Evidence Act was first adopted by Selangor by the Courts Regulation of 1893 and then by other states. The Criminal Procedure Code of India was adopted and enacted in the various Malay States constituting the Federated Malay States in 1900 and eventually incorporated in the Revised Edition of 1936 as Chapter 6. The Civil Law Enactment 1937 gave statutory authority for the introduction of English Common Law and Rules of Equity to the Federated Malay States. In 1951 the Enactment was extended to the other Malay States and in 1956, the Civil Law Act introduced English law to the entire Federation of Malaya.
Sabah and Sarawak are referred to as the Borneo States. In 1841, James Brooke became the ruler of Sarawak. In 1843, eight laws were prepared, printed and published in Malay as a first step by James Brooke. Sabah and Sarawak were protectorates from 1888 to 1946, and therefore there could have been no common law reception of English law before 1946 and in both territories there was no statutory reception until relatively late.
Sarawak was the first, with the Order L-4 (Laws of Sarawak) 1928, section 2 of which provides:
‘The Law of England, in so far as it is modified by Ordinance enacted by the Governor with the advice and consent of the Council Negeri, and in so far as it is applicable to Sarawak having regard to native customs and local conditions, shall be the law of Sarawak.’
Sabah followed the Civil Law Ordinance of 1938, which made the following rather more complicated provision:
‘Save in so far as other provision has been mad 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 provisions of this Ordinance, be in force in the state. The common law of England and the rules of equity administered in England at the date of the commencement of this Ordinance be in force in the State so far as only the circumstances render necessary; and in the exercise of jurisdiction, all courts shall have special regard to the laws and customs of the inhabitants of the State so far as they are not inhuman, unconscionable or contrary to public policy.’
The written law of the Borneo States derived largely from legislation in force in Singapore and the Federation and therefore indirectly from the written laws in India and the United Kingdom. The Indian Penal code was applied in Sarawak by the Courts Order 1922, and continued in force by Order No. 1-1 (Interpretation) 1933, before the Penal Code was enacted in 1934. The North Borneo Penal Code dates from 1959 while Sarawak adopted the Civil Procedure Code in the same year. The reception of English law in the Borneo States was then formalised by the Sarawak Application of Law Ordinance 1949 and the North Borneo Application of Law Ordinance 1951.
The emergence and development of common law and the rules of equity in the English context have impacted countries that employ the common law system, including India, Singapore and Malaysia. The transplantation of the common law in England and the rules of Equity into Malaysia was not completed overnight, but was rather a process that spanned the length of many years.
Source:
Rau & Kumar, General Principles of the Malaysian Legal System, International Law Book Services.
Labels: law, legal research, the UK
posted by aaronparan at 1:22 AM
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