Professional Documents
Culture Documents
Introduction
Malaysian legal history has been determined by events spanning a period of some
six hundred years. Of these, three major periods were largely responsible for shaping the
current Malaysia system. The first was the founding of the Malacca Sultanate at the
beginning of the 15th century; second was the spread of Islam in the indigenous culture;
and finally, and perhaps the most significant in modern Malaysia, was British colonial
rule which brought with it constitutional government and the common law system.
Before the British came, the pre existing law comprises Malay adat (customary)
law and the customary laws of the various communities. Malay adat law was the basic
law of the land since the heyday of the Malacca Sultanate in the mid- fifteenth century. It
was combined of indigenous Malay adat law with Hindu Buddhist element, overlaid with
principles of Syariah law; the latter received with the coming of Islam early in the same
century. 1
Britain had become a major colonial power by the middle of the eighteenth
century. For the strategic reasons stemming from Anglo- French rivalry and the desire to
maintain and develop the China trade, the British were motivated to find a suitable port
where ships on the voyage from India and China could refit and revictual.2
Common law was introduced to the Straits Settlement through Royal Charters of
Justice. Its application was extended to the Malay states through administrative
arrangement. It was first introduced through legislation on specific matters based on
British Indian models, and through the British or British-trained Bar and Bench, the
reception of the common law was later formalized by a series of enabling legislation, the
first enacted in 1937. Common law was received in similar manner in the Borneo states.3
1
Wan Arfah Hamzah & Ramly Bulan. 1995. Malaysia Legal System.2nd Edition. Kuala Lumpur: Dewan
Bahasa dan Pustaka.p: 7
2
Wu Min Aun . 2000. The Malaysian Legal System. 2nd Edition. Petaling Jaya: Pearson Education.p:9
3
Wan Arfah Hamzah & Ramly Bulan. 1995. Malaysia Legal System.2nd Edition. Kuala Lumpur: Dewan
Bahasa dan Pustaka.p: 7
1
The beginning of British colonization
1) The Strait Settlement
-Penang
British were able to gain a foothold over Malayan soil was in large part
attributable to the actions of the early Malays rulers or Sultans. As early as 1771, Sultan
Muhammad Jiwa of Kedah had sought the aid of the English East India Company in a
succession dispute. Captain Francis Light was dispatched in aid of the Sultan and an
agreement was entered into that in exchanged for British aid in restoring Sultan
Muhammad Jiwa to the throne of Kedah , the British be permitted to establish a
warehouse in Kuala Kedah.
Upon the demise of Sultan Muhammad Jiwa in 1778, his son, Tunku Abdullah
was installed as Sultan. In 1785 Captain Francis Light made another visit to Kedah, this
time seeking the piece of land known as ‘Pulau Pinang’. Sultan Abdullah agreed to ‘cede’
Penang to the British in exchange for financial aid and the promise of British in case of
succession disputes.4 The Sultan of Kedah also had ceded the island on the assurance of
British protection in the event that his state was attacked by Siam.
While Captain Francis Light conveyed this condition to his superiors, they chose
to ignore it in the Treaty. By 1790, the Sultan soon becomes disillusion and in 1791, he
made an unsuccessful attempt to retake Penang. A new treaty the same year was forced
on him, confirming the cession of the island in return for a pension of 6000 Spanish
dollars. 5
It is the beginning of the new era of British colonialism in Malaysia.
-Singapore
Singapore was founded in 1819 amidst a backdrop of Anglo-Dutch rivalry.
Similarly, the British obtained the island of Singapore in through a lease from the Sultan
of Johore after an agreement between Stamford Raffles, Sultan Husin and Temenggong
Abdul Rahman. This agreement was made likewise in exchange for British protection
4
Sharifah Suhana Ahmad.1999. Malaysia Legal System. Kuala Lumpur: Malayan Law Journal. p: 5
5
Wu Min Aun . 2000. The Malaysian Legal System. 2nd Edition. Petaling Jaya: Pearson Education p: 9
2
over the various claimants to the throne of the Johore. 6 After that, Stamford Raffles
shrewdly manipulated the succession dispute by offering to recognized the dispossessed
elder son of the deceased Sultan Mahmud as the rightful Sultan of Johore but on the
condition that he concluded a treaty with the British.
Then, a treaty was promptly concluded on 6 February, 1819 which allowed the
British to establish factories on the island in return for a pension.7
-Malacca
Malacca, which had been under Dutch rule, was temporarily occupied by the
British in 1795 and was formally handed over to the British on 1824, whereby, under the
Anglo- Dutch Treaty, it was agreed that the Malay Peninsula would be treated by the
British and respected by the Dutch as being a British sphere of influences, while Batavia
would remain the Dutch sphere of influences.
In this manner, the Malays peninsula becomes a British monopoly. Malacca was
added to Penang and Singapore in1826, and together formed the colony called Strait
Settlements.8
6
Sharifah Suhana Ahmad.1999. Malaysia Legal System. Kuala Lumpur: Malayan Law Journal. p: 5
7
Wu Min Aun . 2000. The Malaysian Legal System. 2nd Edition. Petaling Jaya: Pearson Education p: 9&10
8
Sharifah Suhana Ahmad.1999. Malaysia Legal System. Kuala Lumpur: Malayan Law Journal. p: 5
3
to the Governor of the Straits Settlements, who was designated High Commission of
the Federation.
3) Borneo
In Borneo in 1841, the Brunei Sultanate was in political conflict due to a
rebellion waged by Pengiran Indera Mahkota in Sarawak. In order to settle dispute,
Raja Muda Hashim of Brunei sought the aid of an ex-officer of the East India
Company, James Brooke, to quash the rebellion. James Brooke was proclaimed as
Governor of Sarawak and successfully brought the rebellion under control. Later
Sarawak was ruled by the ‘White Rajahs’,10 that is:
1) James Brooke (1841-1868)
2) Charles Brooke (1868-1917)
3) Vyner Brooke (1917-1941)11
9
Wu Min Aun . 2000. The Malaysian Legal System. 2nd Edition. Petaling Jaya: Pearson Education p:22
10
Wan Arfah Hamzah & Ramly Bulan. 1995. Malaysia Legal System.2nd Edition. Kuala Lumpur: Dewan
Bahasa dan Pustaka.p:7
11
Wu Min Aun . 2000. The Malaysian Legal System. 2nd Edition. Petaling Jaya: Pearson Education p:26
4
The Charter of Justice
Royal Charter of Justice of 1807
They were finally heeded more than twenty years after the founding of the island
and it came in the form of a Royal Charter of Justice of 1807, granted to Penang. The
charter is perhaps the most significant event in modern Malaysia legal history as it is
marked the first 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 civil, criminal, and ecclesiastical matters. It was
interpreted by the court as introducing to Penang the law of England as it stood in 1807 in
so far as it was suitable to the local condition and circumstances, for instances , in Kamoo
v Basset (1808)1 Ky 1.12
12
Wu Min Aun . 2000. The Malaysian Legal System. 2nd Edition. Petaling Jaya: Pearson Education p:14
13
Sharifah Suhana Ahmad.1999. Malaysia Legal System. Kuala Lumpur: Malayan Law Journal. p:15
14
Wan Arfah Hamzah & Ramly Bulan. 1995. Malaysia Legal System.2nd Edition. Kuala Lumpur: Dewan
Bahasa dan Pustaka.p:106
5
Conclusion
English law is a part of Malaysian Law. English law mean the common law and
rules of equity are apply. This two coexisted harmoniously and eventually they become
rivals. The British bring their laws after they came here and taking our country and apply
it in Malaysia without bloodshed. Although there are some local who are not agree and
refuse but their leader doesn’t have power anymore. And because of the power also our
country are ‘sold’ to the British. As a result we have to follow their rules.
There is also advantage after the British take over Malaysia, which is all state in
Malaysia-Straits of Settlement, Malay states, Borneo is under one management that is
under power of British.
The modification of English law that was introduced into the straits settlement is
necessary to prevent from unjust and oppressive to the local people. Although the English
law was introduced into the strait settlement, the local were still practiced especially in
religion matters. The modification must be compatible with local circumstances.
6
Bibliography
1) Wan Arfah Hamzah & Ramly Bulan. 1995. Malaysia Legal System.2nd Edition.Kuala
Lumpur: Dewan Bahasa dan Pustaka.
2) Wu Min Aun . 2000. The Malaysian Legal System. 2nd Edition. Petaling Jaya: Pearson
Education
3) Sharifah Suhana Ahmad.1999. Malaysia Legal System. Kuala Lumpur: Malayan Law
Journal.