The development of malaysia law
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Transcript of The development of malaysia law
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.”