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Lecture 3 :
The British Era
FACULTY OF LAW
Session 2017/2018
STRAITS SETTLEMENTS CASES
Kamoo v Thomas Turner Bassett (1808)
• Kamoo, a native of Bengal, was an employee of Turner
• Turner was a Lieutenant-Colonel of 20th Regiment, Bengal Native Infantry
• Kamoo has been severely ill-treated by Turner during his employment:
On 20 July 1807, Kamoo was whipped 20 times and he complained to the
Police Magistrate
Angered by the complaint, Turner sent someone to fetch Kamoo and later
beat him with another 20 stripes of rattan and confined him.
On 13 Nov 1807, Kamoo was brought into the Grand Parade and was tied
and whipped 100 times for defaming the defendant to the Magistrate.
Kamoo was later confined for two and half months and subsequently
dismissed from the employment
• Kamoo filed an action for assault, battery and false imprisonment
against Turner, claiming damages for $600.
Decision:
The Charter of Justice applies retrospectively to civil injuries
which have been sustained and crimes which have been
committed before the Charter came into force.
The object of the Charter is to protect the Natives from
oppression and injustice, the same watchful care towards the
European or British subjects.
Nonetheless, Kamoo was only awarded with $150 for damages
(as the case happened before RCJ, which would otherwise be
awarded larger amount)
In the Goods of Abdullah (1835)
• The issue in this case was whether a Muslim, who died in Penang, could
devise his entire property through a will?
• According to the Muslim law, he can only devise up to 1/3 of his property.
• Decision:
The will to devise entire property was held to be valid.
The law of England introduced by RCJ had superseded the previous
law.
Any local inhabitants who wish to leave his property according to
their personal laws, must expressly indicate such intention. In the
absence of express declaration, English law shall apply.
R v Willans (1858)
• Issue: Whether a statute passed in England in 1824 is applicable in
Penang?
• Decision:
It was decided that when Penang became a British possession,
there were no inhabitants to claim the right of being governed
by any existing law and no tribunals to enforce such law.
It is difficult to assert that the law of Kedah applies to the island
after the British occupation.
The law of England stood in 1826 that was brought into Malacca
by virtue of 2nd RCJ shall be the law of Penang as well.
Fatimah v Logan (1871)
• A Muslim died in Penang leaving behind a will
• The issue was what law must be applied to determine the validity of will?
• It was argued that the Muslim law should be applied as the Mohamedan Law
was in force in Penang before the enforcement of RCJ.
Decision:
Penang was a desert and uncultivated island, virtually uninhabited and
without any fixed institutions
The island was settled by the British
By the RCJ 1807, the law of England was introduced and became the law
of the land and hence English Law should be applied in determining the
validity of will.
Choa Choon Neoh v Spottiswoode (1869)
• A Chinese domiciled in Singapore died leaving a will which he devised
certain properties to perform certain religious ceremony
• The issue was whether such devise valid?
• Decision:
The English law, when applied to the various races in the Strait
Settlements, is subject to modifications as are necessary to
prevent it from operating unjustly and oppressively on them
Thus, in questions of marriage and divorce, it would be
impossible to apply English law to Mohammedans, Hindus and
Buddhists, without the most absurd and intolerable
consequence, and it is therefore held inapplicable to them
• However, in this case the will was held invalid. The court said that
nothing in the Chinese Law or customs requires the owner of
property to dispose it for the use of his own soul after death. It
requires strong evidence to establish that it was regarded as duty in
the religion or custom.
Ong Cheng Neo v Yeap Cheah Neo (1872)
• The court decided that it is immaterial whether Penang was regarded as
ceded or settled territory because there was no trace of any laws having
been established before it was acquired by the East India Company.
• In either view, the law of England must be taken to be the law of the land
in so far as it is applicable to the circumstances of the place and modified in
its application by these circumstances.
• However in this case, it was held that there was no evidence of the Chinese
customs with regard to the burial of their dead which would render such
devise of land would be beneficial to the public*
Governor Governor
“Before the first treaty [the Pangkor Treaty 1874] the population of
these State [FMS] consisted almost solely of Mohammedan Malays
with a large industrial and mining Chinese community in their midst.
The only laws at that time applicable to Malays was Mohammedan
modified by local custom”
Ramah v Laton [1927]
• Thorne J said to the effect that Muslim law is not foreign law, it is the
law of the land and the local law is a matter of which the court must
take judicial notice.
• Many of the Johor laws were imported from the middle east and
enforced in the courts of Johor.
• The constitution of Johor (1895) and Terengganu (1911) mentioned
Islam as the religion of the States.
• Kelantan strongly practised Islamic law between 1837 to 1886.
• Together enforced in the Malay States was the Malay customary laws
THE BRITISH INTERVENTION
Federated Malay States
• Perak
• Selangor
• Pahang
• Negeri Sembilan
(subsequently)
Formal
• English law was formally introduced into Federated Malay States in 1937 by virtue of the Civil Law
Enactment 1937.
Section 2 of Civil Law Enactment :
Provided always that the said common law and rules of equity shall be
in force in the FMS so far only as the circumstances of the FMS and its
inhabitants permit and subject to such qualifications as local
circumstances render necessary”
The effect of the formal reception of English Law
• English common law and rules of equity become the governing law in
civil, commercial, criminal matters replacing custom and religious law.
• Local laws (religious and customary law) was limited to personal
matters i.e. family matters and inheritance.
2. Unfederated Malay States (UFMS)
Anglo- Siamese Secret Convention 1897
Kelantan J S Mason
(subsequently)
Formal
• English law was formally introduced into Unfederated Malay States in 1951 by virtue of the Civil Law
Enactment (Extention) Ordinance 1951, in which The FMS Civil Law Enactment was extended to UFMS
3. BORNEO
• The Borneo States consists
of Sarawak and North
Borneo (Sabah)
• Both states were initially
under the reign of Brunei.
a) SARAWAK
• 1839 - James Brooke came to Sarawak. There
were internal problems
• 1840- Raja Muda Hashim offered James
Brooke to become Governor of Sarawak if he
is able to overcome the problems in Sarawak.
• 1841- After successfully overcome the
problem, James Brooke became the first
British Governor of Sarawak
• 1968- Charles Brooke became the Governor
• 1917- Charles Vyner Brooke became the
Governor
• Brooke promulgated laws in the form of Orders, notices,
proclamations, directions (informal laws).
• The laws on criminal matters, trade, labour, collection of State revenue
were codified and named as “Ondong-Ondong”
• There was a proper administration of native custom. Charles Brooke
established Council Negeri whose function was to identify native
custom which are suitable to be codified into law.
• By 1870, Native Courts were established where native laws were
administered
Formal Reception of English Law