Chapter 2

(c) Trace the application of English law in West Malaysia.

Malacca was taken by the Portuguese in 1511. During the Portuguese period, Malacca was
ruled by a governor, who has control over the local residents and the foreigners in civil
matters. The governor is assisted by a council consisting of the ovidor (chief justice), viader
(mayor), bishop and a secretary of state. In military matters the governor is assisted by the
captain-general of war (Commander-in-chief) and the sergeant-major.

Apart from that, seven magistrates were appointed annually from leading citizens to from the
Corpus de Cidade, which administered matters within the city of Malacca and exercised civil
and criminal jurisdiction over all Portuguese inhabitants. Appeal is made to the ovider. In
important cases, the governor will preside over the magisterial court. Further appeal will be
forwarded to the Higher Courts in Goa, India.

Beyond the walls of the city of Malacca, the Portuguese did not exert their influence. The
Malays and other Asian communities were left to themselves. The old system prevailed.
However head men and kapitan were apponted for each community to maintain law and order
and was under the supervision of a Malay Bendahara, who is flanked by the Temenggung and
Shahbandar.

The Dutch took Malacca over from Portuguese in 1641. The Dutch governor was assisted by
a council, comprising of a collector, the fiscal, the mayor, the upper merchants and a
secretary. The Police council (Politie Raad) has executive powers and the judicial matters
were left to the Raad van Justice.

Ecclesiastical matters however were handled by a special committee. Regulations were issued
both by the government in Holland Batavia (Java) and also the local government. A copy of
“Groot Plakkaboek” was sent to the Malaccan governor by the East Dutch Company to
ensure uniformity of law. The local inhabitants however were left to practice their own laws.
In Sharip v. Mitchell (1877) Leic. 466, Sir Benson Maxwell C.J. said: “The Portuguese while
they held Malacca and after them the Dutch left the Malay custom or lex non scripta in force.
That it was in force when this settlement was ceded to the Crown appears to be beyond
dispute and that the cession left law unaltered is equally plain on general principles.”
(d) Trace the application of English law in the Strait Settlements.

Through the treaty with the Sultan of Kedah in 1786, Penang was taken by Francis Light for
the East India Company. Singapore was obtained by Stamford Raffles from the Sultan of
Johore, through the treaty of 1819. Malacca was obtained by the British from the Dutch East
India Company via the Anglo-Dutch Treaty of 1824. The three settlements were
amalgamated and called the Straits Settlement in 1826.

When Francis Light occupied Penang he received directives from the Governor-General of
Bengal. A few years after Penang was opened the number of settlers increased tremendously.
Light wrote to the Governor General on the use of law for the settlement. In his reply to Light
the governor stated that he was to ensure peace and order with punishments that was
commonly practices namely imprisonment and other forms of sentences that is used upon the
local residents who are non-British subjects. However, English subjects were sent to Bengal
for trial.

To overcome administrative problems Light appointed head of villages and “Kapitan” for
certain communities. They were to register records of marriage, birth and death; slaves and
sale of property. They too were empowered to settle petty cases among settlers. Francis Light
also introduced the Magistrates Courts which comprises of three officials – namely the
Commander, Magistrate and the Assistant. The Chief Commander cannot exercise death
penalty without the consent of the Governor-General. Records of proceedings also had to be
delivered to Bengal for the attention of the Governor-General.

For example, at this juncture among cases decided were R. v. Aphoe and Kehim (1797) by
Magistrate George Caunter. Briefly, the facts were that Aphoe, a Chinese committed adultery
with a Chinese lady, Kehim. They were sentenced as follows: their head were shaved and
they were put to be viewed by the public twice daily. The man later was banished from the
settlement.

The First Charter of Justice was granted to Penang in 1807. A Court of Judicature was set up
called the Court of Judicature of the Prince of Wales and has jurisdiction in civil, criminal
and ecclesiastical matters.

In Kamoo v. Bassett (1808) 1 Ky. 1. Sir Edmund Stanley, R held that by the Charter of
Justice 1807, not only was the English Criminal Law extended to the Settlement of Penang
but that civil injuries are also to be redressed according to English law; even as regards
offences or wrongs committed or done before the Charter.

Another example, in the Goods of Abdullah (1835) 2 Ky Ec. 8, the court held that a Muslim
could disposes all his property by means of a will even though this was contradictory to the
teaching of Islamic law. In Salmah v. Soolong (1878) 1 Ky. 421, the court held that a Muslim
woman could marry without a wali, after allowing her to change from the Shafie sect to the
Hanafi sect.