LEGAL HISTORY- STRAITS SETTLEMENTS PART 1

By Areej Torla areej@iium.edu.my

1. LEGAL HISTORY

Malaysian Legal History1. Straits Settlements2. Malay States3. Borneo States

1. Straits Settlements

Straits Settlements

Straits Settlements1. Penang (Prince of Wales

Island),2. Malacca3. Singapore

Penang

1771: Sultan Muhammad Jiwa (Sultan of Kedah) sought help from the British East India Company (EAC) to solve succession dispute in Kedah.

1778: EAC sought permanent possession of Penang but the Sultan refused.

1786: Sultan agreed to give Penang to British on certain conditions (eg protection against Siam --Treaty of 1786)

Treaty of 1786

Article 1: That the Honourable Company shall be the guardian of the seas; and whatever may come to attack the king shall be an enemy to the Honourable Company

Article 6: If any enemy come to attack us (Kedah) by land and we require assistance from the Honourable Company of men, arms or ammunition, the Honourable Company shall supply us at our expenses.

1786, July 15: Francis Light landed in Penang. Named the island ‘Prince of Wales Island’.

1790: British refused to give protection against Siam.

1791: Sultan attempted to repossess Penang but failed.

Peace & Friendship Treaty 1791

Sultan was forced to enter into this agreement

Confirmed cession of island No promise of protection In return, Sultan will receive 6000

Spanish dollars annually

Province Wellesley (Seberang Prai)

1800: EAC acquired PW in perpetuity in order to have complete control over Penang port

Sultan to receive another 10000 dollars annually

PERIOD OF LEGAL CHAOS This period lasted for 20 years (between

1786 – 1807). There was no proper law and order within

this period.

British claimed the island was uninhabited when it took possession of the island.

But within 3 years of occupation, the population increased to 10000 people.

So there was a need for a proper law and order.

Letter to Francis Light 26 Jan 1788:

“to preserve good order in the settlement and to impose

appropriate punishment like imprisonment or other common

punishment so far as the inhabitants not British subjects

are concerned”

Regulation of 1794

Francis Light appealed to BOD of EAC to establish a proper legal system in Penang.

This was declined because there was no proper mandate from the King of England.

However, EAC introduced the Regulation of 1794 which dealt only with the mode of trial of criminal cases and their character of punishment. (reintroduced what was mentioned in the letter to Francis Light)

How were cases tried?

Civil cases (less than $10) – by penghulu

Civil & criminal cases (serious cases) – Magistrate with Superintendent

Murder cases – Court Marshall (for army)

Execution of death penalty must be with approval of Governor General of India)

For British subjects: A British subject who commits a wrong

cannot be tried in court. Must be sent back to Bengal.

E.g. Case of James Sudd (1793) Sudd committed murder, deported

and tried in Bengal. Was found not guilty because of insufficient evidence.

Example of case tried during period of legal chaos

Case of Ahpoe and Kehin (1797)

Guilty of adultery which was a serious offence at that time.

Punishment: Heads were shaved, made to stand in public place for certain hours in a day.

The appointment of Dickens 1801

He was the first qualified judge in Penang

Was practising law in Calcutta He wrote a letter expressed

dissatisfaction over the poor administration of justice.

The 1st Royal Charter of Justice

The ROYAL CHARTER OF JUSTICE 1807

FINALLY, a proper legal system was introduced by virtue of the RCJ granted by King George III in 25 March 1807.

By virtue of RCJ, English law was formally and officially introduced into Penang

What was the lex loci of Penang?

Issue: Whether Penang was ceded or settled

Regina v Willan, Maxwell (Recoder):

“If the new acquisition be an uninhabited country found out by British subject and occupied, the law of England, so far as it is applicable become, on the foundation of the settlement the law of the land, but if it be an inhabited country obtained by conquest or cession, the law in existence at the time of its acquisition, continues in force, until changed by a new sovereign.”

Ceded or settled?

Doctrine of Imposition Also “doctrine of reception” To determine whether the colonial law is applicable in

the colony Ceded or settled territory?

Ceded territories: Inhabited, sovereign Local law shall continue in force until changed by the

new sovereignSettled territories: Uninhabited, terra nullius No law in force Apply English law

Fatimah v Logan

Hackett J: An island virtually uninhabited is

occupied and settled by British subjects in the name of the King of England.

Regina v Willan

Maxwell R: It was neither a colony of British subject 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…

At the time when it became a British possession it was without inhabitants to claim the right of being governed by any existing laws and without tribunal to enforce any…

Ong Cheng Neo v Yeap Cheah Neo

Immaterial to consider whether Penang should be regarded as ceded or settled territory for there is no trace of any laws having been established there before it was acquired by EAC.

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.

Correct View??

Tun Sri Lanang in “Sejarah Melayu” and Old Register of Survey 1795:

– the island was inhabited since 1700

Q: Comment on issues regarding the status and existing laws of Penang when it became a British possession.

Q: Describe the period of legal chaos No proper law & order Magistrates were not legally trained Exclusion of British subjects

1st Royal Charter of Justice 1807

Granted by King George III on 25 March 1807.

Established the Court of Judicature Prince of Wales Island in Penang

Court of Judicature Prince of Wales Island

Consists of Governor, 3 Councillors, and Judge (“Recorder of Prince of Wales Island”).

Jurisdiction: (a) Civil; (b) Criminal in so far as local

circumstances will admit.

The court also acts as an Ecclesiastical Court so far as the several religions, manner and custom of the inhabitants will admit.

(Note: In England, there was a separate court run by the church administering ecclesiastical laws –matters relating to marriage, matrimonial causes, will and estate of deceased persons).

To be exercised only over residents of the Settlement

Can grant Probate and Letters of Administration

Exercises authority over estates of infants and lunatics

Power to execute punishment No appeal from this court but may

apply for mitigation of sentence to King in Council

Effect of 1st RCJ

The Charter formally introduced the general law of England (as it existed in 1807) into Penang.

The object of the Charter is to protect the natives from oppression and injustice… (per Stanley R, in Kamoo v Bassett)

Cases

Kamoo v Bassett In the Goods of Abdullah Reg v Willans Fatimah v Logan Ong Cheng Neo v Yeap Cheah Neo

CASES

Kamoo v Bassett (1808) 1 Ky 1

Case on assault and battery. Happened before RCJ (during the period of legal chaos).

Damages claimed was $600 but was awarded only $150.

In the Goods of Abdullah (1835) Ky Ec 8

Issue: whether a Muslim may dispose of his entire property through a will created by him during his lifetime.

Ct held that English Law was introduced into Penang by the first RCJ.

Therefore a Muslim could give away all of his property by will as allowed by English law –though not allowed by Muslim law.

-- Muslim law was ignored

R v Willans (1858) 3 Ky 16

Court held that English criminal law applied in Penang by virtue of the 1st RCJ so as to enable a foreign worker to be imprisoned with hard labour for leaving his job in breach of contract.

Fatimah v Logan (1871) 1 Ky 255

Hackett J: Either on the settlement of the island

or if not then by the Charter of 1807, the law of England was introduced into Penang and became the law of the land, and that all who settled here became subject to that law.

Issue: whether will to be determined according to Muslim or English law?

Argument in favour of Muslim law: Penang was part of Kedah, a Muslim

state. Islamic law continued in force in the

island until altered by competent authority

Even after introduction of RCJ, there is no proof that the law has been altered.

Hackett J rejected the argument: Penang was an uninhabited island Before the RCJ was granted there

were no known body of laws in Penang.

-- Muslim law was ignored

Ong Cheng Neo v Yeap Cheah Neo (1875) 1 Ky 337

Issue: whether a Chinese can make a devise giving property for charity which benefited only himself and his family.

Judge: “it does not seem to fall within any definition of a charitable purpose or use…”

--Chinese custom disregarded.