Malaysian Legal System

LAW 434

LECTURE 1
HISTORICAL BACKGROUND
History of Legal System
Early settlers in Malaysia
The earliest inhabitants of the Malay Peninsular were people of the
Middle Stone Age-possibly descendants of Javaman - who arrived
sometime between 8000 and 2000 BC.
They were the Orang Asli (Original People), the ancestor of the
Negrito and Senoi.
They were followed around 1500BC by the Orang Melayu Asli (Proto-
Malays).
Sometimes between 300 and AD 100 came the Proto-Malays who
intermarried with peoples from Java and Sumatra, and evolve into the
Deutro-Malays, the ancestors of the present Malays.
 The Proto-Malays were administratively the most advanced. They were
headed by a Batin.
Under him was the Jinang or Menteri who acted for him when he was
incapacitated.
A Penglima exercised authority over more than one village while Penghulu
administered a single village.
Some aspects of this organization still survive to this day: the Menteri
Besar heads the government in modern Malay states while the Penghulu is
the key figure in local rural administration.
The prehistoric settlers brought their own customary laws.
This law-modified-has survived to this date under the Aboriginal Peoples
Act 1954(Act 134)
Hindu Buddhist influences
Trade between India and Chinese started as early as 700 BC,
suggesting the possibly of trade with Malay Peninsular.
The primitive political structure of the Proto-Malays was influenced
by the Indian.
The Malay chief was elevated to devaraja or semi-divine king who
derived his authority from divine powers that transcended the
customary laws of the tribe. He possessed absolute political and legal
authority.
Justice was dispensed by the god-king, advised by learned Brahmans
on the right law for each caste.
 Hindu law, based on Dharmasutras (law books in prose),
Dharmasastra (law books in verse) has significant influenced in
the region especially the constitutional law and criminal law.

Hindu criminal law, based on religion, was harsh. It was characterized

by lex talionis (law of retaliation, as exemplified by 'an eye for an eye,
a tooth for a tooth).
 Influence from Islam

Melaka was founded around AD 1400 by Parameswara , a refugee

prince from Palembang, who married a Muslim princess from Pasai,
embraced Islam, and took the name of Megat Iskandar Shah.
Melaka later on became an international entrepot and a great Malay-
Muslim empire which became the centre for the spread of Malay
culture and Islam to the region.
The Melaka Sultanate
At the time of its founding by Parameswara around 1400, Malay adat
law incorporating Hindu-Buddhist elements was originally applied.
At the apex of administrative structure was the Sultan who wield
absolute power.
In Islam he was a khalifah, a vicegerent of Allah.
Succession to the throne was no longer inherited. Instead, the senior
officers selected the Sultan.
The status of Sultan was reinforced by the concept of daulat-derhaka.
Derhaka (treason) was considered so odious a crime that the
punishment meted out by the forces of daulat (sovereignty) were
often unusual and sometimes, gruesome.
 The Sultan did not rule arbitrarily. Tradition required the Sultan to
consult those under his authority.

The Sultan and his ministers had complementary functions: the Sultan
to fulfill the sacred and the spiritual, his ministers to administer the
mundane.
The Bendahara
The most important minister was the bendahara, who combined the
offices of the modern prime minister, chief justice, and commander-
in-chief of the army.
He exercised both political and judicial functions
Temenggung and Laksamana

The temenggung was the chief of police and chief magistrate.

He was responsible for apprehending criminals, maintaining prisons
and generally keeping the peace.
Laksamana was the admiral of the fleet.
Other officials

Penghulu bendahari or chief secretary bf the bendahara and treasurer (and, as

such, head of the four shahbandar).
Shahbandar or harbour master and collector of customs. There were four
shahbandar to attend to four main groups of traders-from China and the Far East;
from Java and the Malay Archipelago; from west India (i.e. Gujerati); and from
south-east India (i.e. the Tamils);
Mandulika or governor of an isolated outpost, who exercised civil and criminal
jurisdiction.
Orang kaya, consulted by the Sultan on, important decissions affecting the
people.
A mesyuarat bicara would hear all views before deciding by muafakat.
Sources of law

Before the coming of Islam, the law applicable was Malay adat law,
specifically adat Temenggung.
Adat temenggung came via Palembang and was the law of the Sultan
and, therefore, autocratic in nature.
It was the law later adopted in all the Malay states except Negeri
Sembilan.
Adat temenggung was also the basis of the law contained in most of
the Malay legal codes or digests which were compiled from the mid-
fifteenth century onwards to facilitate the uniformity of decisions.
Legal Digests
There were two legal digests in the Melaka Sultanate:
(a) Undang-undang Melaka, also known as Hukum Kanun Melaka or
Risalat Hukum Kanun (A.D.1523); and
(b) Undang-undang Laut Melaka (the Maritime Laws of Melaka)
Other legal Digests

Pahang Digest of 1596

Kedah Digest of 1605 -
Johor Digest
Ninety-Nine Laws of Perak

It was only during the reign of Sultan Muzaffar Shah (1444-1456 A.D.)
that orders were given to compile the laws to provide for uniformity
of decissions.
The legal rules that eventually evolved were shaped by three main
influences, namely, the early non-indigenous Hindu/Buddhist
tradition, Islam and the indigenous (native) adat.
 Undang-undang Melaka covered a wide range of constitutional, civil
and criminal matters. The digest also contained some aspects of
Islamic law such as validity of marriage, marriage witnesses, talak,
property claim, trusteeship, performance of prayer, taking of oath and
others.

The concept of kingship is essentially Hindu and undang-undang

Melaka preserved this system of government in Melaka by
entrenching special status of the Ruler known as Raja and his lineage
(kerabat).

He was the head of government (kerajaan) with virtual absolute

power.
 The Raja enjoyed special rights and privileges including the exclusive
use of yellow cloth, royal language (bahasa dalam), and royal
commands (menjunjung duli)
Undang-undang Laut Melaka covered largely maritime matters.

The coming of Islam saw the beginning of attempts to introduce

Syariah law and to modify adat law to accord with Islam.

The process of Islamization can be seen in the Malay digests. For

example, earlier versions of the Undang-undang Melaka set out the
adat law whereas the later versions show a mixture of adat and
principles of the Syariah.
 The law administered then was a combination of Islamic law and the
adat temenggung.
The composite law-Malay adat law with Hindu-Buddhist relics and
overlaid with Syariah principles-contained in these later versions of
the Undang-undang Melaka was the model for the Malay digests in
the later Malay states.
EUROPEAN COLONIALISM

Melaka fell to the Portuguese under the command of Alfonso de

Albuquerque in 1511, and to the Dutch in 1641.
Portuguese administration
Melaka was occupied by the Portuguese from 1511 to 1641.
It was governed by a governor or captain of the fortress. In military
matters the governor had to consult the captain-general of war
(commander-in-chief) and the sergeant-major.
A council comprising the avidor (chief justice), viador (major), bishop,
and a secretary of state assisted the governor in civil matters.
In criminal matters, sentences pronounced by the ovidor or
magistrates were subject to the governor's confirmation.
Headmen or kapitan for each community were appointed to maintain
law under the supervision of a Malay bendahara, who exercised civil
and criminal jurisdiction.
There was no record of Portuguese law being introduced to Melaka.
Local people during this period continued to practise Islamic law and
Malay customs
Dutch administration

Melaka was headed by a governor assisted by a council comprising the

collector, the fiscal, the mayor, the upper merchant, and a secretary.
A Politie Raad (Police Council) formed the executive while the Raad van
Justice administered justice.
Regulations were issued by the government in Holland, Batavia (Java), and
by the local executive.
Europeans were governed by Dutch laws but it is uncertain what law
applied to the locals. Like the Portuguese, the Dutch were solely interested
in trade.
As it was Dutch practice in Batavia to leave the local inhabitants to their
own laws, it may be assumed the Dutch did likewise in Melaka. (Supported
by Sir Benson Maxwell C.J. in Sahrip v Mitchell and Endain).
British administration
Penang
Towards the end of 18th century the British arrived, partly in search
of trade-more specifically, settlement to promote their trade with
China-and partly, of bases from which to prevent French domination
of the Indian Ocean.
In 1786, the Sultan of Kedah, anxious for military assistance against
the Siamese, leased the island of Penang to Captain Francis Light,
acting for the English East India Company (EIC).
The EIC failed to provide assistance when Siam attacked Kedah.
When Kedah failed to recapture Penang in 1791, the EIC agreed to
pay the Sultan and his successor an annual pension in return for the
cession of Penang and Province Wellesley. British colonialism had
begun.
 After 20 years of arbitrary justice a Royal Charter of Justice was
introduced in Penang in March 1807.
It marked the first statutory introduction of English law into the
country.
The Charter established that all civil, criminal and ecclesiastical
matters to be exercised by Penang.
A Court of Judicature of Prince of Wales Island was established.
Singapore
In Singapore there was a succession dispute. Stamford Raffles
manipulated the dispute by offering to recognize the dispossessed
elder son of the deceased Sultan Mahmud as the rightful Sultan of
Johor but on condition that he concluded a treaty with the British.
On 6 February 1819, a treaty was concluded which allowed the British
to establish factory in the island in return for a Pension.
Complete sovereignty over Singapore was eventually secured in 1824
by another treaty with the Sultan of Johor.
Melaka
Melaka was surrendered by the Dutch to the British in 1795. Melaka
was returned to the Dutch in 1818 but by the Anglo-Dutch Treaty of
1824, it was exchanged for the island of Benkulen in Sumatra.
In 1826, Penang, Melaka and Singapore were combined into one
administrative entity, the colony of the Strait Settlements.
 Second Royal Charter of Justice was granted in November 1826. This is the
first statutory authority for introduction of English law into Malacca and
Singapore but second for Penang.
The Charter created The Court of Judicature of Prince of Wales Island
(Penang), Singapore and Melaka.

However the British had problems in administrating justice. There was

only one professional judge (Recorder), assisted by lay judges. The
Recorder visited Singapore and Melaka only twice a year.
A Third Charter of Justice was granted in 1855. It reorganised the
court system and an additional Recorder was appointed for Singapore
and Penang.
 1867: the court system was reorganised
- Recorder of Singapore became Chief Justice of Straits Settlement
- Recorder of Penang became Judge of Penang
- Attorney General and Solicitor General were appointed

1868: Court of Judicature of Prince of Wales Island (Penang),

Singapore and Melaka was abolished, replaced by
The Supreme Court of the Straits Settlements.

1873: Supreme Court was reorganised under four judges- the Chief
Justice, the Judge of Penang, the Senior Puisne Judge and
the Junior Puisne Judge.

The Court of Quarter Session was established as a criminal

court. Court of Appeal was also established.
Federated Malay States
By the mid 19th century, there was an increase in the scale of tin mining
and this attracted increasing numbers of Chinese immigrants.
Indian immigrants came later to work in the rubber estates.
In 1874, under the 'Pangkor Engagement', Perak agreed, in return for the
British protection, to accept a British Resident whose advice 'must be asked
and acted upon on all questions other than those touching the Malay
religion and custom'.
This was the basis of the Residential System, the agency through which the
British imposed indirect rule.
English law was introduced informally and indirectly through RS in 2 ways-
i. The enactment, on the advise of British administrators.
ii. Decisions of the courts established by the British administrators.
 Through similar so-called treaties of protection, the British extended that
system to 3 other states: Selangor in 1874; Pahang in 1888; and Negeri
Sembilan in 1889.
In 1895, for efficiency, these four states formed a federation, the Federated
Malay States (FMS), with a system of centralized government headed by a
British Resident-General.
Unfederated Malay Sates
The other 5 Malay states remained outside the federation and were
collectively called the Unfederated Malay Sates (UMS).Johor accepted
a treaty of protection in 1885 and eventually a British Adviser in 1914
Under the Bangkok Treaty of 1909, Siam transferred whatever rights
or power over the northern Malay states to the British.
 These states too, later, accepted British Advisers. In contrast to the
FMS, they enjoyed greater autonomy.
By 1914, when Johor finally succumbed to pressure to accept British
Adviser, British control over the Malay Peninsular was complete.
The Malay states were not British territories, English law could not be
imposed through the common law principles of reception. The only
way in which English law could be introduced was voluntarily ie
through legislation enacted by the Malay states themselves.
Introduction of English law in FMS in 1937 through the Civil Law
Enactment 1937 passed by the FMS Federal Council.
The UMS received English law formally when the FMS enactment was
extended to the by the Civil Law (Extension) Ordinance 1951.
Sabah and Sarawak
Sabah and Sarawak were originally part of the Brunei Sultanate.
When James Brooke, an English adventurer, arrived in Sarawak in
1839, the inhabitants were openly rebelling against the governor.
Brooke helped to quash the uprising and was awarded the
governorship of Sarawak and installed as the Rajah of Sarawak in
1841.

The political organization of British dependant territories then was as

follows:
1) The Straits Settlements, which were British Colony;
2) The FMS and UMS, which were British protected states; and
3) Brunei, Sabah and Sarawak, which were British Protectorates.
Japanese invasion
The Japanese landed in Malay Peninsula on 8 December 1941.
Kuching in Sarawak fell into Japanese hands on 25 December 1941.
Sabah fell by 16 January 1942.
Singapore by 15 February 1942.
The Japanese occupation lasted three and-a-half years.
The Japanese surrendered on 14 August 1945.

The British then incorporated the FMS, UMS, and the Straits Settlements
(but excluding Singapore) into a unitary state, the Malayan Union (MU), on
1 April 1946. The MU, which reduced the Malay states to colony status, and
the manner in which it was imposed upon Malay Rulers invoked fierce
Malay opposition. The British were forced to abandon the MU scheme. In
its place was established the Persekutuan Tanah Melayu (Federation of
Malaya) on 1 February 1948.
Independence

In 1951, the 'member' or 'quasi-ministerial' system was introduced to

prepare some nominated members of the Federal
Legislative Council for responsible government.
In 1955, the first federal elections were held.
The Alliance Party of UMNO, MCA and MIC led by Tunku Abdul Rahman
won 51 of the 52 seats contested He was appointed as the first Chief
Minister.

In 1956, the Tunku led a delegation to London to negotiate for

independence.

An independent Constitution Commission-the Reid Commission-was

appointed to draw up a constitution for an independent federation.
The Reid Commission's proposals, as amended, became the
constitution for the federation, which proclaimed its independence
on 31 August 1957.
Malaysia
In June 1962, a joint Anglo-Malayan Commission-the Cobbold
Commission-was dispatched to the Borneo territories to ascertain the
view of the people on the proposal of a bigger federation comprising
Malaya, Singapore, Brunei, Sabah and Sarawak.
It reported that the great majority supported incorporation in the
proposed federation
On 9 July 1963, Malaya, the United Kingdom, Singapore, Sabah and
Sarawak signed the Malaysian Agreement in London. Brunei withdrew
at the last minute. Malaysia came into being on 16 September 1963.
On 9 August 1965, Singapore left the Federation to become an
independent republic.