UNIVERSITI SULTAN ZAINAL ABIDIN

MALAYSIAN LEGAL SYSTEM ILLS3013

CHAPTER 2: THE DEVELOPMENT OF MALAYSIAN LAW

MISS KHAIRUN NISAA BINTI ASARI

IRWAN BIN JOHN IMBAYAN030294

11th OCTOBER 2012

QUESTION 2

a) Discuss the three (3) Charters of Justice with regards to their main provisions and effects on the lex loci of the Straits Settlements. Support your answer with decided cases.

b) The modification of the English law in the Straits Settlements has led to the recognition of some customary laws including Islamic Law. In this context, explain how far Islamic Law was recognized with reference to decided cases.

What are the three (3) Charters of Justice?

Charter of

Justice 1807

Charter of

Justice 1855

Charter of

Justice 1826

Charter of Justice 1807

Charter of

Justice 1807

1st British law in

MalaysiaBeginning

of Statutory

introduction of

English law

To introduce English law to Penang as it

stood in 1807 in England subject to

local inhabitants

and situations.

The Court of Judicatur

e of Wales’ Island

It is contained provisions

for government of Penang + administration of Justice

Kamoo v

Basset

Fatimah v

Logan Ong Cheong Neo v Yeap

Cheah Neo

Provisions: Charter of Justice 1807

First, the Charter outlined the law to be applied in Criminal and Civil cases.With regard to Criminal Law:1. The Charter enjoined the court to ‘hear and

determine indictments and offences.2. Give judgment thereupon and award

execution thereof.3. Administer criminal justice in such or the like

manner and form, or as nearly as the condition and circumstances of the place and the persons will admit of, as in England.

Provisions: Charter of Justice 1807

With regard to Civil cases, there were at least two provisions in the Charter which were important.1. There was a direction in the Charter that in

Civil cases, the court shall ‘give and pass judgment and sentence according to Justice and Right.

2. The Charter provided that there where ecclesiastical ‘only so far as the religions, manners and customs of the inhabitants admit’.

CASE TO SUPPORT

KAMOO v BASSETTWhere the court held:

It was accepted that the Charter introduced the laws of England as it existed in 1807 into Penang.

CASE TO SUPPORT

ONG CHENG NEO v YEAP CHEAH NEO

...the law of England must be taken to be the law of the land in so far as it was applicable to the circumstances and modified in its application.

CASE TO SUPPORT

FATIMAH v LOGAN

The court held that since the Lex Loci of Penang was English law, the validity Of the will must be determined according to English law.

The court describe Penang as a desert and uninhabited island and without any fixed legal institution and since the Sultan of Kedah never exercise his power on Penang, therefore the territory is considered as terra nullius and without a Lex Loci. It was ruled that the law of Penang is Common Law.

CASE TO SUPPORT

IN THE GOODS OF ABDULLAH

That since COJ 1807 had introduced the law of England into Penang, a Muslim could (by will) dispose all of his property although such was contrary to Islamic law.

CASE TO SUPPORT

REGINA v WILLANS

The court ruled that COJ 1807 directed that court must in civil and criminal cases, give and pass judgment/sentence according to the law of England.

Charter of Justice 1826

Charter of

Justice 1826

Was granted on 27th

Nov 1826 to Straits Settlemen

tsThe Court of

Judicature of Wales’ Island,

Singapore and

MalaccaContaine

d the same

provisions as COJ

1807

Introduced English law as it existed in 1826 in England to the 3 states of SS subject to

modifications to suit the local

conditions in SS

COJ 1826 extended

jurisdiction of court to

cover Malacca

and Singapore

Regina v

Willans

Provisions: Charter of Justice 1826

It contained same

provisions as COJ 1807

CASE TO SUPPORT

REGINA v WILLANS

That the 2nd COJ introduced law of England as it existed on that date, not only to Malacca and Singapore but also to Penang in so far as conditions of the place and persons shall admit.

That the 2nd COJ introduced law of England as it existed on that date, not only to Malacca and Singapore but also to Penang in so far as conditions of the place and persons shall admit.

Charter of Justice 1855Was

granted on 12th August 1855 to

SS

It did not introduce English law to the SS

Only to re-

organize the

existing courts

Charter of

Justice 1855

Additional

Recorder appointe

d for Singapor

e

Court had divisions : One

having jurisdiction

over Penang and the other

having jurisdiction

over Singapore and

Malacca

Remedy the

deficiencies in the system.

1807

1826

1855

Brought English Law

Re-organized the existing

The Court of Judicature of Wales’

Island

The Court of Judicature of Wales’ Island, Singapore

and MalaccaNew

Court!

Question B

Muslim law is not foreign but local law; it is the law of the land, and the local law is a matter of which

the court must take judicial notice. The court must propound the law

and it is not competent for the court to allow evidence to be led

as to what is the local law.

Do the Islamic law was recognized during SS?- Yes

How to prove it?-Cases-Judges submission

Case to Support

Ramah v LatonMuslim law is not foreign law but local

law and the law of the land. The court must take judicial notice of it and must propound the law.

According to the court, the question regarding to harta syarikat or harta sepencarian was not a question which related to foreign law, but was once of the local law.

The major piece of legislation was the Mohammedan Marriage Ordinance of 1880 (No V of 1880).It is the foundation for subsequent

legislation concerning Islamic law.It was intended to define how of

Islamic law was to be reorganized by the civil courts in order to be more or less a code of law for them.

Edward CJ said in Shaik Abdul Latiff & Ors v Shaik Elias Bux;“The only law at that time applicable to Malays was Mohammedan Law modified by local customs. In Selangor, Perak and pahang among Mussalmans succession on death was regulated by unmodified Mohammedan law, in parts of Negeri Sembilan there are special local customs based on matriarchy.”