Malaysian legal history
Encyclopedia
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 Malaysian system. The first was the founding of the Melaka 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.
(or chief minister) who exercised both political and judicial functions. The temenggung
(which is the commander of troops and police) was responsible for apprehending criminals, maintaining prisons and generally keeping the peace. The welfare of foreigners residing in the state was looked after by several shahbandar
s (habour masters and collectors of customs).
Little is known of the legal system in those days but it is generally accepted that the law administered then was a combination of Muslim law and the "Adat Temenggung" (patriarchal Malay customary law). The "Adat Temengung" was the law of the Sultan or the law ordained by the rulers and later adopted in the other regions of Peninsular Malaysia. It was the basis of the law as found in Malay legal digests compiled between the 15th and 19th centuries.
The formal legal text of traditional Melaka consisted of the Undang-Undang Melaka (Laws of Melaka), variously called the Hukum Kanun Melaka and Risalat Hukum Kanun, and the Undang-Undang Laut Melaka (the Maritime Laws of Melaka). The laws as written in the legal digests went through an evolutionary process. The legal rules that eventually evolved were shaped by three main influences, namely the early non-indigenous Hindu/Buddhist tradition, Islam and the indigenous "adat".
from 1511 to 1641 and the Dutch
from 1641 till 1786, the local people continued to practise Islamic laws and Malay customs. It could be said that the Portuguese and the Dutch laws made relatively little impact on the legal system as a whole other than the political and administrative structures.
In 1786, Britain acquired the island of Penang
, the first territory in Malaysia to fall into British hands. The main preoccupation of the British administrators during the first decades after the founding of Penang, was the maintenance of some form of order and to this end, local customs and law were allowed to continue but tempered by such portions of the English law as were considered just and expedient. Some judgements meted out may seem rather strange by today’s standard but it should be borne in mind that they merely reflected the harsh and often chaotic conditions of those pioneering days. Complaints and petitions were made over many years for a better system of administering justice. Finally, it came in the form of the Royal Charter of Justice of 1807. The Charter is the most significant event in Malaysian legal history as it marked the beginning of the statutory introduction of English law into this country. The Charter established the Court of Judicature of the Prince of Wales’ island (as Penang was then known) to exercise 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 insofar as it was suitable to local conditions and circumstances.
When Penang, Singapore
, which was founded by the British in 1819 along with Melaka, which fell to the British as a trade-off under the Anglo-Dutch Treaty of 1824, formed the Straits Settlement in 1826, a new charter, the Charter of Justice was introduced. A new court called ‘The Court of Judicature of Prince of Wales’ Island, Singapore and Melaka" was created by this Charter. Penang in a sense had a second statutory reception of English law although it was the first for Singapore and Melaka. In one stroke of the pen, the Straits Settlements received a large dose of English law.
Despite the new Charter, the administration of justice was far from satisfactory. A third Charter of Justice was granted in 1855 which enabled the reorganisation of the court system. In 1867, when the administration of the Straits Settlements from India was transferred to the Colonial Office, the court system was reorganised once again. By Ordinance 5 of 1868, the Court of Judicature of Prince of Wales’ Island, Singapore and Melaka was abolished. A new court known as the Supreme Court of the Straits Settlements was established. In 1873, the Supreme Court was further reorganised under four judges – the Chief Justice, the Justice of Penang, the Senior Puisne Judge and the Junior Puisne Judge. The Court of Quarter Sessions was established as a criminal court and presided over by the Senior and Junior Puisne Judges in Singapore and Penang respectively. A Court of Appeal was also constituted. By then, the judiciary had slowly evolved into its modern form.
English commercial law was formally introduced into the Straits Settlements by Section 6 of the Civil Law Ordinance, 1878. This provision, as re-enacted in the Civil Law Act, 1956 (Revised 1972), is still applicable in Penang and Melaka.
English land law was specifically excluded by sub-section 2. The whole section of this Ordinance was incorporated into the Civil Law Ordinance of 1909 and later re-enacted as Section 5 of the Civil Law Ordinance (Chap. 42 of the 1936 Revised Edition). This was the legal situation in the Straits Settlements until its dissolution in 1946 following the formation of the Malayan Union
.
The statutory introduction of English law
to the Federated Malay States
comprising the states of Perak
, Selangor
, Pahang
and Negeri Sembilan
occurred in 1937 with the introduction of the Civil Law Enactment, 1937. The Unfederated Malay States, consisting the states of Kedah
, Perlis
, Kelantan
, Terengganu
and Johor
, became part of the Federation of Malaya in 1948 and the Civil Law (Extension) Ordinance, 1951, extended the application of the Enactment to these states.
Both enactments were replaced by the Civil Law Ordinance, 1956, which applied to all eleven states of the Federation. When Malaysia was established in 1963, it became necessary to harmonise the law to take effect in Sabah and Sarawak. The 1956 Ordinance was then superseded by the Civil Law Act, 1956 (revised 1972) which came into force on 1 April, 1972.
Islam
Islam . The most common are and . : Arabic pronunciation varies regionally. The first vowel ranges from ~~. The second vowel ranges from ~~~...
in the indigenous culture; and finally, and perhaps the most significant in modern Malaysia, was British
British Empire
The British Empire comprised the dominions, colonies, protectorates, mandates and other territories ruled or administered by the United Kingdom. It originated with the overseas colonies and trading posts established by England in the late 16th and early 17th centuries. At its height, it was the...
colonial rule which brought with it constitutional government and the common law system.
Sultanate of Melaka
During the realm of the Sultanate, Melaka was an important trading port and the maintenance of law and order was crucial to its prosperity. The administration of justice was placed under the direct charge of the bendaharaBendahara
Bendahara is an administrative position within classical Malay kingdoms before the intervention of European powers during the 19th century. A bendahara was appointed by a sultan and was a hereditary post. It was the office that is held by bendahara family...
(or chief minister) who exercised both political and judicial functions. The temenggung
Temenggung
Temenggung is an ancient Malay title of nobility, usually given to the chief of public security. The Temenggung is usually responsible for the safety of the monarch as well as the state police and army...
(which is the commander of troops and police) was responsible for apprehending criminals, maintaining prisons and generally keeping the peace. The welfare of foreigners residing in the state was looked after by several shahbandar
Shahbandar
Shah Bandar or Shahbandar or Shahbunder or Shahbundar or Shāhbandar) is located in Thatta District, Sindh, Pakistan.- History :Shah Bandar was a prominent trading port of Sindh during the Soomra and Kalhora dynasties...
s (habour masters and collectors of customs).
Little is known of the legal system in those days but it is generally accepted that the law administered then was a combination of Muslim law and the "Adat Temenggung" (patriarchal Malay customary law). The "Adat Temengung" was the law of the Sultan or the law ordained by the rulers and later adopted in the other regions of Peninsular Malaysia. It was the basis of the law as found in Malay legal digests compiled between the 15th and 19th centuries.
The formal legal text of traditional Melaka consisted of the Undang-Undang Melaka (Laws of Melaka), variously called the Hukum Kanun Melaka and Risalat Hukum Kanun, and the Undang-Undang Laut Melaka (the Maritime Laws of Melaka). The laws as written in the legal digests went through an evolutionary process. The legal rules that eventually evolved were shaped by three main influences, namely the early non-indigenous Hindu/Buddhist tradition, Islam and the indigenous "adat".
European and British influence
When Melaka fell into the hands of the PortuguesePortugal
Portugal , officially the Portuguese Republic is a country situated in southwestern Europe on the Iberian Peninsula. Portugal is the westernmost country of Europe, and is bordered by the Atlantic Ocean to the West and South and by Spain to the North and East. The Atlantic archipelagos of the...
from 1511 to 1641 and the Dutch
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
from 1641 till 1786, the local people continued to practise Islamic laws and Malay customs. It could be said that the Portuguese and the Dutch laws made relatively little impact on the legal system as a whole other than the political and administrative structures.
In 1786, Britain acquired the island of Penang
Penang
Penang is a state in Malaysia and the name of its constituent island, located on the northwest coast of Peninsular Malaysia by the Strait of Malacca. It is bordered by Kedah in the north and east, and Perak in the south. Penang is the second smallest Malaysian state in area after Perlis, and the...
, the first territory in Malaysia to fall into British hands. The main preoccupation of the British administrators during the first decades after the founding of Penang, was the maintenance of some form of order and to this end, local customs and law were allowed to continue but tempered by such portions of the English law as were considered just and expedient. Some judgements meted out may seem rather strange by today’s standard but it should be borne in mind that they merely reflected the harsh and often chaotic conditions of those pioneering days. Complaints and petitions were made over many years for a better system of administering justice. Finally, it came in the form of the Royal Charter of Justice of 1807. The Charter is the most significant event in Malaysian legal history as it marked the beginning of the statutory introduction of English law into this country. The Charter established the Court of Judicature of the Prince of Wales’ island (as Penang was then known) to exercise 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 insofar as it was suitable to local conditions and circumstances.
When Penang, Singapore
Singapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
, which was founded by the British in 1819 along with Melaka, which fell to the British as a trade-off under the Anglo-Dutch Treaty of 1824, formed the Straits Settlement in 1826, a new charter, the Charter of Justice was introduced. A new court called ‘The Court of Judicature of Prince of Wales’ Island, Singapore and Melaka" was created by this Charter. Penang in a sense had a second statutory reception of English law although it was the first for Singapore and Melaka. In one stroke of the pen, the Straits Settlements received a large dose of English law.
Despite the new Charter, the administration of justice was far from satisfactory. A third Charter of Justice was granted in 1855 which enabled the reorganisation of the court system. In 1867, when the administration of the Straits Settlements from India was transferred to the Colonial Office, the court system was reorganised once again. By Ordinance 5 of 1868, the Court of Judicature of Prince of Wales’ Island, Singapore and Melaka was abolished. A new court known as the Supreme Court of the Straits Settlements was established. In 1873, the Supreme Court was further reorganised under four judges – the Chief Justice, the Justice of Penang, the Senior Puisne Judge and the Junior Puisne Judge. The Court of Quarter Sessions was established as a criminal court and presided over by the Senior and Junior Puisne Judges in Singapore and Penang respectively. A Court of Appeal was also constituted. By then, the judiciary had slowly evolved into its modern form.
English commercial law was formally introduced into the Straits Settlements by Section 6 of the Civil Law Ordinance, 1878. This provision, as re-enacted in the Civil Law Act, 1956 (Revised 1972), is still applicable in Penang and Melaka.
English land law was specifically excluded by sub-section 2. The whole section of this Ordinance was incorporated into the Civil Law Ordinance of 1909 and later re-enacted as Section 5 of the Civil Law Ordinance (Chap. 42 of the 1936 Revised Edition). This was the legal situation in the Straits Settlements until its dissolution in 1946 following the formation of the Malayan Union
Malayan Union
The Malayan Union was a federation of the Malay states and the Straits Settlements of Penang and Malacca. It was the successor to British Malaya and was conceived to unify the Malay Peninsula under a single government so as to simplify administration. The Malayan Union later became the independent...
.
The statutory introduction of English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
to the Federated Malay States
Federated Malay States
The Federated Malay States was a federation of four protected states in the Malay Peninsula—Selangor, Perak, Negeri Sembilan and Pahang—established by the British government in 1895, which lasted until 1946, when they, together with the Straits Settlements and the Unfederated Malay...
comprising the states of Perak
Perak
Perak , one of the 13 states of Malaysia, is the second largest state in the Peninsular Malaysia bordering Kedah and Yala Province of Thailand to the north, Penang to the northwest, Kelantan and Pahang to the east, Selangor the Strait of Malacca to the south and west.Perak means silver in Malay...
, Selangor
Selangor
Selangor also known by its Arabic honorific, Darul Ehsan, or "Abode of Sincerity") is one of the 13 states of Malaysia. It is on the west coast of Peninsular Malaysia and is bordered by Perak to the north, Pahang to the east, Negeri Sembilan to the south and the Strait of Malacca to the west...
, Pahang
Pahang
Pahang is the third largest state in Malaysia, after Sarawak and Sabah, occupying the huge Pahang River river basin. It is bordered to the north by Kelantan, to the west by Perak, Selangor, Negeri Sembilan, to the south by Johor and to the east by Terengganu and the South China Sea.Its state...
and Negeri Sembilan
Negeri Sembilan
Negeri Sembilan, one of the 13 states that constitutes Malaysia, lies on the western coast of Peninsular Malaysia, just south of Kuala Lumpur and borders Selangor on the north, Pahang in the east, and Malacca and Johor to the south....
occurred in 1937 with the introduction of the Civil Law Enactment, 1937. The Unfederated Malay States, consisting the states of Kedah
Kedah
Kedah is a state of Malaysia, located in the northwestern part of Peninsular Malaysia. The state covers a total area of over 9,000 km², and it consists of the mainland and Langkawi. The mainland has a relatively flat terrain, which is used to grow rice...
, Perlis
Perlis
Perlis is the smallest state in Malaysia. It lies at the northern part of the west coast of Peninsular Malaysia and has Satun and Songkhla Provinces of Thailand on its northern border. It is bordered by the state of Kedah to the south...
, Kelantan
Kelantan
Kelantan is a state of Malaysia. The capital and royal seat is Kota Bharu. The Arabic honorific of the state is Darul Naim, ....
, Terengganu
Terengganu
Terengganu is a sultanate and constitutive state of federal Malaysia. The state is also known by its Arabic honorific, Darul Iman...
and Johor
Johor
Johor is a Malaysian state, located in the southern portion of Peninsular Malaysia. It is one of the most developed states in Malaysia. The state capital city and royal city of Johor is Johor Bahru, formerly known as Tanjung Puteri...
, became part of the Federation of Malaya in 1948 and the Civil Law (Extension) Ordinance, 1951, extended the application of the Enactment to these states.
Both enactments were replaced by the Civil Law Ordinance, 1956, which applied to all eleven states of the Federation. When Malaysia was established in 1963, it became necessary to harmonise the law to take effect in Sabah and Sarawak. The 1956 Ordinance was then superseded by the Civil Law Act, 1956 (revised 1972) which came into force on 1 April, 1972.