GIL1001

Lecture 3 :
The British Era
FACULTY OF LAW
Session 2017/2018
STRAITS SETTLEMENTS CASES
 Kamoo v Thomas Turner Bassett (1808)
• Kamoo, a native of Bengal, was an employee of Turner
• Turner was a Lieutenant-Colonel of 20th Regiment, Bengal Native Infantry
• Kamoo has been severely ill-treated by Turner during his employment:
 On 20 July 1807, Kamoo was whipped 20 times and he complained to the
Police Magistrate
 Angered by the complaint, Turner sent someone to fetch Kamoo and later
beat him with another 20 stripes of rattan and confined him.
 On 13 Nov 1807, Kamoo was brought into the Grand Parade and was tied
and whipped 100 times for defaming the defendant to the Magistrate.
 Kamoo was later confined for two and half months and subsequently
dismissed from the employment
• Kamoo filed an action for assault, battery and false imprisonment
against Turner, claiming damages for $600.
Decision:
 The Charter of Justice applies retrospectively to civil injuries
which have been sustained and crimes which have been
committed before the Charter came into force.
 The object of the Charter is to protect the Natives from
oppression and injustice, the same watchful care towards the
European or British subjects.
 Nonetheless, Kamoo was only awarded with $150 for damages
(as the case happened before RCJ, which would otherwise be
awarded larger amount)
 In the Goods of Abdullah (1835)
• The issue in this case was whether a Muslim, who died in Penang, could
devise his entire property through a will?
• According to the Muslim law, he can only devise up to 1/3 of his property.

• Decision:
 The will to devise entire property was held to be valid.
 The law of England introduced by RCJ had superseded the previous
law.
 Any local inhabitants who wish to leave his property according to
their personal laws, must expressly indicate such intention. In the
absence of express declaration, English law shall apply.
 R v Willans (1858)
• Issue: Whether a statute passed in England in 1824 is applicable in
Penang?
• Decision:
 It was decided that when Penang became a British possession,
there were no inhabitants to claim the right of being governed
by any existing law and no tribunals to enforce such law.
 It is difficult to assert that the law of Kedah applies to the island
after the British occupation.
 The law of England stood in 1826 that was brought into Malacca
by virtue of 2nd RCJ shall be the law of Penang as well.
 Fatimah v Logan (1871)
• A Muslim died in Penang leaving behind a will
• The issue was what law must be applied to determine the validity of will?
• It was argued that the Muslim law should be applied as the Mohamedan Law
was in force in Penang before the enforcement of RCJ.

Decision:
 Penang was a desert and uncultivated island, virtually uninhabited and
without any fixed institutions
 The island was settled by the British
 By the RCJ 1807, the law of England was introduced and became the law
of the land and hence English Law should be applied in determining the
validity of will.
 Choa Choon Neoh v Spottiswoode (1869)
• A Chinese domiciled in Singapore died leaving a will which he devised
certain properties to perform certain religious ceremony
• The issue was whether such devise valid?
• Decision:
 The English law, when applied to the various races in the Strait
Settlements, is subject to modifications as are necessary to
prevent it from operating unjustly and oppressively on them
 Thus, in questions of marriage and divorce, it would be
impossible to apply English law to Mohammedans, Hindus and
Buddhists, without the most absurd and intolerable
consequence, and it is therefore held inapplicable to them
• However, in this case the will was held invalid. The court said that
nothing in the Chinese Law or customs requires the owner of
property to dispose it for the use of his own soul after death. It
requires strong evidence to establish that it was regarded as duty in
the religion or custom.
 Ong Cheng Neo v Yeap Cheah Neo (1872)
• The court decided that it is immaterial whether Penang was regarded as
ceded or settled territory because there was no trace of any laws having
been established before it was acquired by the East India Company.
• In either view, the law of England must be taken to be the law of the land
in so far as it is applicable to the circumstances of the place and modified in
its application by these circumstances.
• However in this case, it was held that there was no evidence of the Chinese
customs with regard to the burial of their dead which would render such
devise of land would be beneficial to the public*

*(in order to be held as a valid devise of property)

• Modifications of the English Law to suit the local custom were
primarily in family law and related subject matters such as marriage,
divorce, adoption and succession.
• For example, Chinese polygamous marriages were recognised so as to
allow secondary wives and their children to be provided for under the
Statutes of Distributions as decided in :

 The Six Widows Case (1908)

 Cheang Thye Pin v Tan Ah Loy (1920)
 The 3rd Royal
Charter of Justice
1855

Improving the administration

of justice in the Straits
Settlements

3rd RCJ was granted by Queen Victoria

 3rd Royal Charter of Justice 1855
• The British had problems in administering justice even though there
was 2nd RCJ
• There was only one professional judge in the Straits Settlements who
visited Singapore and Malacca twice per year- causing backlog of
cases.
• The 3rd RCJ was granted to re-organize the court system.
• The Court of Judicature was reorganised into two divisions.
 The Straits Settlements
Court of Judicature

Prince of Wales Singapore &

Island Malacca

Governor Governor

Resident Councillors Resident Councillors

Recorder (Judge) Recorder (Judge)

 The Supreme Court Ordinance 1868
• Following the reconstitution of the Straits Settlements as a Crown colony
with effect from 1 April 1867, the Court of Judicature was replaced by the
Supreme Court of the Straits Settlements
• The Governor and Resident Councillors ceased to be judges of the Court
• Further changes to the structure of the judicial system were brought by the
Supreme Courts Ordinance of 1878. This Ordinance was passed in
response to the United Kingdom Judicature Acts of 1873-75, which
modified the court structure in England.
• Under the Ordinance, the jurisdiction for the Supreme Court of the Straits
Settlements was brought in line with that of the new English High Court.
 Civil Law Ordinance 1878

• Came into force on 1st January 1879

• Section 6 of the Civil Law Ordinance allows for continuous reception
of English commercial law into the Straits Settlements.
• Thus, enabling the court to apply English commercial law
THE MALAY STATES
• While the Straits Settlements were colonies under direct British rule,
the rest of the Malay States were ruled by Sultans
• The British acknowledged the sovereignty of the Malay States
 Duff Development v The Government of
Kelantan (1924)
• It was decided that the English Court has no jurisdiction over the
government of Kelantan in view of the certificate from the Colonial
Office that Kelantan was an independent State in Malay Peninsula and
the Sultan was a sovereign monarch in his own right
 Pahang Consolidated Co Ltd v The State of
Pahang [1931]

• It was held that the State of Pahang was a constituent member of

four Federated Malay States, and such, no suit could be maintained
against it.
 Mighell v Sultan of Johor [1894]
• It was held that the English courts has no jurisdiction over the Sultan,
who was an independent foreign sovereign, unless he consented to
submit to the jurisdiction of the English Courts
Laws Applicable in the Malay States before the
British intervention
Shaik Abdul Latiff & Ors v Shaik Elias Bux [1915]

“Before the first treaty [the Pangkor Treaty 1874] the population of
these State [FMS] consisted almost solely of Mohammedan Malays
with a large industrial and mining Chinese community in their midst.
The only laws at that time applicable to Malays was Mohammedan
modified by local custom”
 Ramah v Laton [1927]

• Thorne J said to the effect that Muslim law is not foreign law, it is the
law of the land and the local law is a matter of which the court must
take judicial notice.
• Many of the Johor laws were imported from the middle east and
enforced in the courts of Johor.
• The constitution of Johor (1895) and Terengganu (1911) mentioned
Islam as the religion of the States.
• Kelantan strongly practised Islamic law between 1837 to 1886.
• Together enforced in the Malay States was the Malay customary laws
THE BRITISH INTERVENTION
Federated Malay States
• Perak
• Selangor
• Pahang
• Negeri Sembilan

Unfederated Malay States

• Johor
• Terengganu
• Kelantan
• Perlis
• Kedah
1. Federated Malay States (FMS)
Events led to the British intervention in the Federated Malay States (FMS)
State Event Result
Perak • In 1873, a dispute arose on the succession of throne after JWW Birch was appointed as
the death of Raja Ali (Sultan of Perak) between Raja the Resident
Abdullah and Raja Ismail
• Raja Abdullah became Sultan with the help of the British
Selangor • Klang Civil War (ended 1875) JG Davidson Birch was
• British forced Sultan Abdul Samad to sign an agreement appointed as the Resident
which included the appointment of a British Resident
Pahang • In 1888, a British shopkeeper was murdered near the JP Rodger was appointed as
Sultan’s palace. the Resident
• British used this issue to compel the Sultan to accept a
British Resident
Negeri Sembilan • In 1872, Dato Kelana Sendeng died. Martin Lister was appointed
• The state was divided into two and ruled by two Malay as the Resident
Chiefs- Dato Kelana Sayed Abd Rahman and Dato Bandar
Kulop Tunggal
• British supported Dato Kelana Sayed Abd Rahman
 Formation of Federated Malay States

• Perak, Selangor, Negeri Sembilan and Pahang became “Protected States”

or more commonly known as the Federated Malay States (FMS) by virtue
of Treaty of Federation 1895
• British Residents came under the Resident General who was made
accountable to the Governor of the Straits Settlements.
• The Residents were the advisors to the respective Sultans on all State
matters except matters pertaining to custom of the Malays and
religion.
 The reception of English Law
Informal
• The appointment of Resident as advisor to all matters except those pertaining to Malay custom & religion
• As advisors, the Residents introduced many British Indian statutes into the FMS. E.g. Penal Code,
Contracts Ordinance, Criminal Procedure Code, Civil procedure Code.
• Courts were established and judges were appointed

(subsequently)

Formal
• English law was formally introduced into Federated Malay States in 1937 by virtue of the Civil Law
Enactment 1937.
Section 2 of Civil Law Enactment :

“Save so far as other provision has been made or may hereafter be

made by any written law in force in the Federated Malay States, the
common law of England, and the rules of equity, as administered in
England at the commencement of this Enactment [12 March 1937] shall
be in force in the FMS.

Provided always that the said common law and rules of equity shall be
in force in the FMS so far only as the circumstances of the FMS and its
inhabitants permit and subject to such qualifications as local
circumstances render necessary”
 The effect of the formal reception of English Law

• English common law and rules of equity become the governing law in
civil, commercial, criminal matters replacing custom and religious law.
• Local laws (religious and customary law) was limited to personal
matters i.e. family matters and inheritance.
2. Unfederated Malay States (UFMS)
 Anglo- Siamese Secret Convention 1897

• Signed in April 1897

• British acknowledged Siam’s control over Perlis, Kedah,
Kelantan & Terengganu.
• It was agreed that Siam will not let these states go to any
foreign powers without first informing the British.
 The Bangkok Treaty 1909
• Perlis, Kedah, Kelantan & Terengganu came under British protection.
British Advisors were appointed in each State
 State First British Advisor
Kedah George Maxwell

Perlis Meadow Frost

Kelantan J S Mason

Terengganu W.L Conlay (Representative) / J.L Humphrey (Advisor)

Johor Douglas Campbell

 The reception of English Law
Informal
• The appointment of Advisor
• In contrast with the Federated Malay States, the Unfederated Malay States enjoyed greater autonomy as
they were not legally obliged to follow the advice of the British. But in most circumstances the advice will
be followed because the Rulers felt indebted to the British
• Courts were established and judges were appointed

(subsequently)

Formal
• English law was formally introduced into Unfederated Malay States in 1951 by virtue of the Civil Law
Enactment (Extention) Ordinance 1951, in which The FMS Civil Law Enactment was extended to UFMS
3. BORNEO
• The Borneo States consists
of Sarawak and North
Borneo (Sabah)
• Both states were initially
under the reign of Brunei.
a) SARAWAK
• 1839 - James Brooke came to Sarawak. There
were internal problems
• 1840- Raja Muda Hashim offered James
Brooke to become Governor of Sarawak if he
is able to overcome the problems in Sarawak.
• 1841- After successfully overcome the
problem, James Brooke became the first
British Governor of Sarawak
• 1968- Charles Brooke became the Governor
• 1917- Charles Vyner Brooke became the
Governor
• Brooke promulgated laws in the form of Orders, notices,
proclamations, directions (informal laws).
• The laws on criminal matters, trade, labour, collection of State revenue
were codified and named as “Ondong-Ondong”
• There was a proper administration of native custom. Charles Brooke
established Council Negeri whose function was to identify native
custom which are suitable to be codified into law.
• By 1870, Native Courts were established where native laws were
administered
 Formal Reception of English Law

Law of Sarawak Ordinance 1928

“The law of England in so far as it is not modified by orders or
other enactments issues by His Highness the Rajah of Sarawak
or with his advise, and in so far as it is applicable to Sarawak,
having regard to the native customs and local conditions, shall
be the law of Sarawak”
 Application of Law Ordinance 1949

• This law abolished Law of Sarawak Ordinance 1928

• “The common law of England, doctrine of equity together with
statutes of general application, as administered or in force in England
at the commencement of this Ordinance, shall be enforced in Sarawak
(so far circumstances and its inhabitants permit and subject to such
qualifications as local circumstances render necessary)”
 b) Sabah
• Sabah was administered by the Sultans of Brunei and Sulu.
• The British North Borneo Chartered Company was granted
concessions to many parts of North Borneo in 1865.
• In 1881, the territory became under the administration of the North
Borneo Company.
 Royal Charter 1881

• Granted by the British Government to British North Borneo

• “In the administration of justice by the company to the people of
Borneo…careful regard shall always be had to the customs and laws
of the class or tribe or native to which the parties respectively belong,
especially with respect to holding, possession or transfer and
disposition of land and goods, and testate or intestate succession
thereto, and marriage, divorce and legitimacy and other rights of
property and personal rights”
• Subsequently, there were the establishment of courts, appointment
of judges, and enactment of laws.
• Between 1881 to 1902 some 250 laws were enacted in Sabah.
• E.g. the Native Rights to Land Proclamation 1889, the Village
Administration Proclamation, the Abolition of Poll Tax Proclamation
1902
 The Formal Reception of English Law in Sabah

• Civil Law Ordinance 1938 - similar to Law of Sarawak Ordinance 1928

• Later was the application of Law Ordinance 1951 (similar to the
Application of Law Ordinance 1949 of Sarawak) that abolished Civil
Law Ordinance 1938.