Reception of English Law in Malaysia

Introduction:

Since there was no official body of law in the first 20 years of British occupation, legal chaos occurred in the administration. The chaos started with the case of Aphoe v Kehim (1797), when a Chinese male and a Chinese lady convicted adultery and as a punishment, their head were shaved bald. These events had caused dissatisfaction among the locals so they filed a complaint for customary law to be applied but was ignored.

The administration dictated according to their consciences. For instance, the magistrates applied the principles of natural justice; that is any concept of what was fair. However, English Law was not acknowledged as it is unclear and dissatisfactory to the local inhabitants.

Over the years, complaints and pleads for an enhanced system of administrating justice were made which lead to the introduction of the First Charter of Justice (1807) in Penang.

First Charter of Justice

It was granted by British Crown and the provisions of the Charter as follows:

First and foremost, the charter outlined the law to be applied in criminal and civil cases. As of regards to the criminal law, the Charter directed the court to hear and determine prosecutions and offences. Thereof judge and execute punishments. The court must follow the law set by the Charter to administer criminal justice where the parties were obliged towards the English law.

As regards to the civil cases, there were at least two requirements in the Charter which were important. Firstly, it was stated in the Charter that the court shall give and pass judgment and sentence according to Justice and Right. Secondly, the Charter stated that where there is religious jurisdiction was consulted on the court, it was to be practice ‘only so far as the religions, manners and customs of the inhabitants admits’. In other words, religious jurisdiction was only exercised when the religions, customs and manners allow it.

The Charter established the Court of Judicature of Penang.

The Court of Judicature has a wide range of jurisdiction to cover civil and criminal cases as well as religious matters. That could only be done if the religions, customs and manners permit it.

Sir Ralph Rice (English Judge) interpreted the above provision. He said that the criminal law was only part of the law of England which was forced in Penang. In civil matters, justice was to be administered among the native population with respect to their laws and customs.

By introducing the Charter of Justice, it gave effects to several cases that occurred in the Straits Settlements:-

One being the case of Kamoo v Thomas Bassett (1808) 1 Ky 1. The facts of the case are as follows: The plaintiff was employed by the defendant to be a table-servant. In that job, he was severely abused by the defendant. The plaintiff filed an action of assault, battery [1] and false imprisonment against the defendant.

The court held that although the Charter did not in definite terms introduce English Law but its provisions were interpreted by the judiciary as having introduced English Law, as it stood in England on 25 March 1807, into Penang to be their territorial law. Even though so, the effect of it does not abolish the application of various native laws or customs, but merely diminishing the significance of these laws.

More to the point, the introduction of the Charter had brought in the existing law of England also, except in some cases where it was modified by expressed provision and had voided any law that previously existed.

As regard to the case above, which was judged before the Charter of Justice was introduced; the Charter of Justice was applied retrospectively to civil injuries so as to be redressed according to English Law. The objective of the charter was to protect the locals from oppression and injustice. Thus, to introduce the suit applicable to the circumstances, it must be modified in its application as regards to be taken to be the law of Penang.

According to British judge- Stanley R, “It is true this was done before the Charter of Justice has been promulgated [2] here and before this court had been established; but yet the Charter extends in term to civil injuries which have been sustained, as well as to crimes that have been committed before the Charter… the object of the Charter is to protect the Natives from oppression and injustice."

The issue at hand is whether English law has the rights to override the decisions of the court in the cases presided under local customary law and also question how far the general rules of the English law are applicable in the Straits Settlement. The modifications are claimed to protect the local people from oppression and injustice, but it has been repeatedly laid down as the doctrine of our law that English law are not applicable to races having religions and social institutions of their own, when intolerable injustice and oppression would be the consequences of their application.

Nevertheless, British did not practice what they assured in the Charter when they overwrite the local customary law authority with the English law; as contrary to the ‘only so far as the religions, manners and customs of the inhabitants admits’, where English law was not applicable when the customs of the local inhabitants disallow. The British felt that their modifications to the Charter in this particular matter is the best for the people as it prevents injustice and oppression, yet at the same time the voices of the local customs were ignored.

To put it briefly, the introduction of the Charter of Justice with its modifications had a retrospective effect on civil cases in the Straits Settlements, so as to prevent biasness and oppression and to redress all civil injuries accordingly by the English law regardless of the time of declaration of the Charter of Justice.

Another case that was affected by the introduction of the Charter is the case of Re Goods of Abdullah [3] . The facts of the case are that there was a deceased Muslim left a will as he died. The administration granted a letter to his widower declaring that the will is invalid as not conformable to the rules of Mohamed Law.

Benjamin Malkin R stated that “I refer to the case of Rodyk & Ors v. Williamson & Ors. (May 24, 1834) in which I expressed my opinion that I was bound by the uniform course of authority to hold that the introduction of the King’s Charter into these Settlements had introduced the existing Law of English also, except in some cases where it was modified by the express provision, and had abrogated any law previously existing. The law of England was introduced into Penang by the 1807 Charter and consequently a Muslim could, by will, dispose of his entire property even though such a will would be contrary to Muslim law. “

The issue was raise when it is unclear and confused that whether a Muslim who died in Penang during the first charter of justice could dispose his entire property by means of will and what types of law were to be applied for this particular case.

In our opinion, it is stated in the First Charter that English law can only be exercised if ‘only as far as the religions, manners and customs of the inhabitants admits’. However, in this case, the court didn’t follow such order given by the Charter which was to apply the customary law as it involves religion, Islam. In fact, they judged the case by the English law in order to fulfill the deceased’s will or last words to dispose all of his own property.

As a matter of fact that, according to the English law, a Muslim was capable of transferring his own property through leaving a will even though it is against the Islamic law stated that a Muslim can only devise 1/3 of his property to non-beneficiaries. Besides, it is unfair for his widower as a Muslim to be judged the cases through English law and to be left with nothing from her dead husband’s property that he left behind.

The reason why the people was against the British occupation and government is due to the inconsistence of their court judgment as they used either customary law or English law based on their desire without following the order given. In fact, they ridiculously claimed that ‘The court held that the religious and customs of the local inhabitants were recognized as exceptions to the general application of English law’. From this statement, it is shown that they judge a case according to their longing. The court should apply Islamic law in this case as the order to follow the customary law is stated clearly in the Charters despite it is unjust to the deceased.

In a nutshell, by introducing the Charter of Justice, the influence of lex loci in the Straits Settlement is diminished, and in cases similar to the above, the English law supersedes the Islamic law of the inhabitants.

Not only that, the introduction of the Charter of Justice also gave effect to the case of Fatimah & Ors V. Logan (1871). The facts of the case are as follows: A Muslim died in Penang, leaving behind him a will. The issue before the court was; what law must be applied to determine the validity of the will.

The issue as regarding to the case is that Mahomad Nordin was dwelling in Penang at the Time of making his will made up to the lex loci [4] , which here is the law of England as it has been modified by the India and Colonial Legislatures. The common law of England was in force in Singapore in 1937 except in so far as it was necessary to modify it to prevent hardship upon the local inhabitants who were entitled by the terms of the Charters of Justice to exercise their own respective religious Custom and practices.

The position that is prior to the charter of justice of 1807, Islamic law was in force in Penang and that the charter made no modification in the law Cannot be accepted .The charter of justice of 1807 seems to have set at rest about the raced question of the lex loci of Penang .The question has been re-introduced by the Attorney-General. He also has maintained in oppositions to the views it follows from what he have said that, in as much as English law has governed in Penang certainly ever since the publication at the first Charters in 1807.

In this first charter of justice, it also shows that the law gave permission to the East India Co. to operate and administrate a court of judicature in the Island Of Penang. However it rise the issue of whether there are legal system before the coming of the colonialist to the island as shows in the case of Fatimah v. Logan that actual questioned the authority of the Common Law as the Law of the land in the island. To solve this problem the English said that because the island is in the state of Terra Nullius [5] when it was discovered 1794.

They in the case of Fatimah V. Logan, the island is regarded by the court at the time of its discovery an uncultivated island inhabit except by a few traveling fishermen and without any fixed institution was ceded by the Sultan Of kedah to Captain Francis Light. Because the colonialist argued that the sultan of Kedah never exercise his power there so the territory is terra nullius and thus without a Lex loci. So, it was ruled that the law of Penang is the common law.

However the court through the submissions, Judge Hacket, formulated in the case of Logan v Fatimah that, although Islamic law is recognized and adopted before the arrival of English Malay ground, but, according to his opinion:

"... When the British merchant based in a country occupied or somewhere with no civilized country, not only the English traders brought with them their laws from the mainland to the New Colonies, but English law is taken by those used on the population and residents of the new colony."

“…the law of England was introduced into this settlement(Penang) immediately on possession taken in the name of the king of England by and for the use of the late east India company; and law(if any) previously existing thereupon immediately ceased…"

Nevertheless, it was argued that there was evidence where there were settlers on the island when the British occupied the island and as such, applying the general rule, the law in existence at the time of its possession should continue in force. However, this issue was resolved by the Privy Council in ‘Ong Cheng neo v. Yeap Cheah new [1872 1 Ky. Where Privy Council stated that:

“…it is really immaterial to consider whether the Prince of Whales’ island, or as it is called, Penang, should be regarded as ceded or newly settled territory, for there is no trace of any laws having been established there before it was acquired by the east India company. In either view the law of England must be taken to be the governing law so far as it is applicable to the circumstances of the place, and modified in its application by these circumstances."

Or in other words, even though English law was considered as the law of Penang, customary law was also being applied by the head of the Malay, Chinese and Indian in the presidency of justice in their community.

In this case, a resident from the island of Penang ceased, living behind him a will. When the English law was introduced, an issue was created saying which law (customary law or English law) are to be applied to verify the validity of the will. Judge Hackett later state that; the island was uninhabited and uncultivated, so they declare that any laws before them are to be ceased.Tidak dapat dinafikan kedatangan Inggeris membawa bersama mereka undang-undang Inggeris khususnya 'the common law of England' dan 'the rules of equity'. In my opinion, there are pros and cons in Hackett decision. In one hand, if I were to agree with Hackett, it is because the island was already being left empty, without any inhabitants that are cultivating the island. Therefore, it is not wrong to cease the existing law since it was not being practiced anymore. In other word, what is the use of the law, if there is no one to abide it? While on the other hand, I think that even though the British colonist had reign over the island of Penang, the customary law of Penang should be kept alive, even though the inhabitants were only travelling fishermen. This is because, even though the English law was considered the law of Penang, the customary laws are also being applied by the Malays, Chinese, and Indians in their community as sated by the Privy Council. This means, the customary law is also being practiced as a custom, or if any customary issues occur it can be referred straight to customary law, instead of the English law, which may or may not contradict [6] with the English law.

Last but not least, is in the case of Regina v Willans where the Charter of Justice had cast an effect on the Straits Settlement.

The fact of the case is, Willans, who was a magistrate who had refused to try a case. The case is involving an agricultural laborer who had frequently absented himself from work.

The issues of the case are, a conflict arose in regard to the reception of English law in Penang. The issue before the court was whether Act 4 Geo IV, C34, was applicable to Penang and that the magistrate’s refusal was well founded.

The respondent, who was a police magistrate, had refused to try a case involving a complaint by an employer made against an agricultural laborer who had frequently absented himself from work.

The issue before the court was whether the respondent’s refusal was well-founded, and this in turn depended on whether a statute passed in England in 1824 was also applicable to Penang by virtue of the Charter of Justice.

In his judgment, Sir Benson Maxwell R. had referred to the custom of international law than prevailing-

“… the general rule of a territory is that if a new acquisition be an uninhibited country found out by British subjects and occupied, the law of England, so far as it applicable, becomes, on the foundation of the Settlement, the law of the land, but that if it be an inhabited country obtained by conquest or cession, until changed by the new Sovereign. In the one case the settlers carry with them to their new homes, their law, usages and liberties, as their birthright. In the other, the conquered or ceded inhabitants are allowed the analogous, though more precarious privilege of preserving theirs, subject to the will of the conqueror."

The general rule of law determining what is the law of the territory is that, if the newly attained land is uninhabited, found and occupied by British subjects, English law becomes the lex loci of the land but if the land is inhabited, and the British subjects obtained the land by conquest or cession, the law in existence at the time of its acquisition, continues in force, until changed by a superior.

Sir Benson Maxwell R. at first expressed doubts as to whether the “founding" of Penang fell under branch of the above rule -

“… This Settlement however did not fall exactly under either branch of the above rule. It was neither a colony of British subjects in the ordinary sense of the expression nor can it be said to have been an inhabited country when ceded, because four Malay families were found encamped upon it when it was first occupied by us. It was a desert Island belonging to the Rajah of Quedah, and ceded by that prince in 1786 to an English Corporate body, which was invested with quasi sovereign powers over territories in its possession, but which it held in trust for the British Crown. Indeed, it was once considered to be not free from doubt, whether the sovereignty of the Land was ever ceded"

Despite such expression of doubt, the judge felt bold enough to justify the application of English law in Penang. He said:

“…again, Penang being, at that time when it became a British possession, without inhabitants to claim the right of being governed by any existing law, and without tribunals to enforced any, it would be difficult to assert that the law of Quedah continued to be the territorial law after its cession…"

Penang is said to have no superior to make and enforce the local law and local inhabitants does not claim their rights of being of being governed by any existing law. Therefore, it would be difficult to declare the law of Quedah in Penang.

According to Sir Benson Maxwell, he said that Francis Light and his marines did not come to as colonizers but as garrison to take possession as ceded colony. Therefore, the English law cannot be the lex loci. It has become the personal law of the garrison members. It was also further emphasize that once the law of England was introduced in any state, no other law would be enforced except the English law.

In other words, English law was introduced to Penang through the First Charter of Justice in 1807. In the case of Regina v Willans, the judge had refused to apply the English law because he felt that the law was not applicable to the local inhabitants. By virtue of the first Charter of Justice 1807, with regard to civil cases, the Charter provided that where jurisdiction was conferred to the court, it was to be exercise ‘so far as the religions, customs and manners of the inhabitants will admit’. In other words, the law of England can be applied if only the religions, customs and manners of the local inhabitants allow and agree to such law. Thus, justice is prevailed and conflicts are prevented. The Charter made provisions for the government of the Island and the Administration of justice there. It established a Court of Judicature which was to exercise all the jurisdiction of the English Courts of Law and Chancery “as far as circumstances will admit". Therefore the English law is said to be persuasive authority; it is not compulsory but is highly influential.