Position of English law in the Malay States and its effect to the local law Essay

August 1, 2017 Law

While. as for the response of English jurisprudence in the Malay provinces. RJ Wilkinson said: ‘There can be no uncertainty that Moslem Law would hold ended by going the jurisprudence of Malaya had non British jurisprudence stepped in to look into it’ . Before the British intercession into Malay provinces. Malayans were governed by Malay adat jurisprudence and for the non-Malays. they were governed by personal Torahs or if they were British topics. English jurisprudence. These Torahs continued to use. capable to alterations made by specific statute law. until the formal response of the English jurisprudence.

British started to step in into Malay provinces utilizing series of complete pacts with Malay Rulers. in return for British protection against external onslaught. agreed to accept British advisors whose advice had to be sought and acted upon in all affairs except those refering Islam and Malay usage. It can be seen that through the alleged Residential System. British imposed indirect regulation over the Malay provinces.

The formation of the Federated Malay States ( FMS ) showed that the Malay Rulers seems started to accept the British intercession into Malay provinces. Reception of English jurisprudence into FMS can be divided into informal and formal response. English jurisprudence was introduced informally through the Residential System in two ways. First. through the Enactment. on the advice of the British decision makers. a figure of specific statute law modeled on Indian Legislation which. in bend. was based on the English jurisprudence. Second. through the determinations of the tribunals established by the British decision makers. The higher rank of the bench were largely filled by English or English-trained Judgess who of course turned into English jurisprudence whenever they were unable to happen any local jurisprudence to use to new state of affairss. peculiarly of a commercial character. caused by the really fact of British influences.

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For case. in the instance of Government of Perak v Adam ( 1914 ) . where it is a civil wrong instance. affecting improper obstructor of land belonging to Plaintiff. Woodward JC said: ‘In covering with instances of civil wrongs. this tribunal has ever turn for counsel. as a cardinal rule. to English determinations. . ’ The Judge should hold applied Perak jurisprudence alternatively of English jurisprudence. The same goes to in the instance of Motor Emporium V Arumugam. It is a instance on executing of judgement through prohibition order. Terrel CJ said: ‘The tribunals of the FMS have on many occasions acted on just rules. non because English regulations of equity apply but because such regulations happen to conform to the rules of natural justice’ .

As the Malay provinces were non British districts. English jurisprudence could non be imposed through the Common jurisprudence rule of response. Malay provinces were independent and protected provinces and the Malay Rulers were autonomous. It can be proved in the instance of Duff Development Ltd 5 Government of Kelantan in which the issue was whether the province of Kelantan was a autonomous province and therefore. enjoyed unsusceptibility from executing of its belongings. It has been held that Privy Council acknowledged Kelantan as a autonomous province. Another illustration is in the instance of Pahang Consolidated Co. Ltd. v The State of Pahang ( 1933 ) where the same rule applied as the suit against the Defendant could non be maintained because Pahang was one of a autonomous province.

British introduced English jurisprudence through statute law enacted by Malay states themselves. The omnibus debut of English jurisprudence took topographic point in the FMS merely in 1937. through the Civil Law Enactment passed by FMS Federal Council. Section 2 ( 1 ) of the Civil Law Enactment 1937 provides that the application of Common jurisprudence and Equity in FMS as the same like which were enforced in England topic to such makings as local fortunes render necessary. Whereas. the Unfederated Malay States ( UMS ) received the English jurisprudence officially when the FMS Enactment was extended to them by the Civil Law ( Extension ) Regulation 1951.

In decision. English common jurisprudence was introduced in Straits Settlements by Charter of Justice while the Malay provinces. English jurisprudence was non received officially in the FMS until 1937 and UMS until 1951. but it had been received long earlier those day of the months. informally and indirectly.


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