Unit 3

The Development of Malaysia

Law

POLITICAL HISTORY

Prehistoric

Historic Period

Prehistoric

• The strategic location of the Malay Peninsular is the most important geographical factor shaping the plural society & plural legal system of Malaysia.

• The peninsular lies truly at the crossroads of monsoons & ancient trade routes linking East & West.

• This aspects also attracted a succession of peoples, cultures, religions & trade.

• Malay Peninsular in prehistoric age was allegedly a land bridge between mainland Asia & the lands of the south-west Pacific.

Historic Period

• Pre-European Era– As the prehistoric period was characterized

by outside influences, the historic period likewise was dominated by the effects of external factors on the people & their institutions.

– Indian & Chinese influences mark the earlier, Muslim and European the later, stages.

Hindu-Buddhist Influences • Chinese chronicles report trade between

India & China as early as the 7th century BC, also possibility of trade with the Malay peninsular.

• Archeological findings also point to commercial exchanges between the inhabitants of the peninsula & traders from China, India & the Levant in the pre-Christian era.

• The foreign traders were drawn to the peninsula by its reputation as the “Golden Chersonese” (Land of Gold) in ancient times.

• In the 1500 years or so of Indian influence at least thirty Indianized states flourished in the Malay Peninsula-almost all on the east coast.

• The most important was Langkasuka, situated in present day Patani.

• Indian influence did not necessarily come directly from India.

• It came largely from the Indianized kingdoms in South-East Asia; Funan, established sometime in the first century in the Mekong valley in Cambodia;

• Champa, which emerged sometime in the first century in southern Vietnam;

• Sri Vijaya, which probably arose out of the kingdom of Palembang in south-east Sumatra around 7th century & which dominated the Sunda & Melaka Straits for four to five centuries

• And Javanese Kingdom of Majapahit, which replaced Sri Vijaya in the 14th century.

• Indian influence in the peninsular was pervasive; it brought not only Hinduism & Buddhism, but also left its mark on language, law, literature & political institutions

• It influence contributed to and absorbed the indigenous elements and left a legacy, some aspects of which have survived even the coming of Islam.

Chinese Influence• Although they came to the Malay Peninsular

as early the Indians, the Chinese were more interested in trade than establishing settlements.

• China did, however, play a political role in this early period: Chinese protection fended off attacks on the peninsula by its more immediate and aggressive neighbors.

• The Chinese did not exercise any significant or lasting influence on the peninsular in this early period.

• Their influence came much later with their large-scale immigration in the 19th and 20th centuries.

Islamization & the Melaka Sultanate

• The Hindu-Buddhist political control and cultural influence ended with the expansion of Islam into South-East Asia sometimes in the 13th century.

• How Islam came to the region and spread is still a matter of speculation, but it us generally believed to have been brought to the Malay Peninsula by Muslim traders, principally from India

• According to history, Melaka was founded around AD 1400 by Parameswara, a refugee prince from Palembang

• Then he married a Muslim princess from Pasai, embraced Islam and took the name of Megat Iskandar Shah.

• During the rest of the century, Melaka expanded territorially.

• At height of its glory in the mid-15th century, the sultanate covered the whole Malay peninsula (large parts of Sumatra, & islands south of Singapore.

• It inherited the commerce of the former Sri Vijaya kingdom and traded not just with its immediate neighbors, but also with China, India, Persia & Arabia.

• It became in the words of a 16th-century Portuguese chronicler, Tome Pires, ‘of such importance and profit…that it has no equal in the world’.

• But Melaka was not just an internationally known entrepot; it was also a great Malay-Muslim empire which became the centre for the spread of Malay culture (especially the Malay language) and of Islam to the region.

• In fact, though the sultanate lasted in the peninsula as its off-shoots, it left a political legacy less permanent than its cultural and religious influence.

European Colonialism

• The Malay sultanates of Malacca & Brunei broke up with the coming of the Europeans into the region.

• Malacca fell to the Portuguese under the command of Alfonso de Albuquerque in 1511 & to Dutch in 1641

• Riau-Johor- founded by the last Sultan of Malacca who fled south when defeated by the Portuguese

• Then try to re-establish control over Malacca but failed.• Consequently, the period following the fall if Malacca

saw the emergence of sovereign states in the Malay Peninsula.

• How come British started intervene in Malay Peninsula?

• Towards the end of the 18th century the British arrived, partly search of trade, more specifically;

• Settlements to promote their trade with China• To prevent French domination of the Indian Ocean

• In 1786, the Sultan Kedah, anxious for military assistance against Siamese, leased the island of Penang to Captain Francis Light, acting for English East India Company (EIC).

• The EIC failed to provide assistance when Siam attacked Kedah in 1821.

• The Sultan Kedah attacked EIC to recapture in Penang but failed then EIC agreed to pay the Sultan & his successors an annual pension.

• The pension were considered in return for the cession of Penang & Province Wellesley (the strip of territory on the mainland).

• Then base on that onwards British colonialism had begun in Malay Peninsula.

• Malacca was surrendered by the Dutch to the British in 1795 for reasons connected with Napoleonic Wars in Europe.

• But Malacca was return the Dutch in 1818

• The most significance way British & Dutch settled a problem about the colony in Malay Archipelago through “the Anglo-Dutch Treaty 1824”.

• Based on this treaty the Malay Peninsular and Archipelago was carved into British & Dutch spheres of influence (fixing the boundary between what is now Malaysia & Indonesia)

• The British sphere of influence included Singapore. By 1824, the British had in their possession Penang, Malacca & Singapore.

• Next in 1826 the three of states were combined into one administrative entity-the colony of the Straits Settlements.

• How does the plural society exist in Malaysia

• By the mid 19th century significant changes had taken place in the Malay states, causing a change in British policy.

• An important factor was an increase in the scale of tin mining, especially in Perak & Selangor & attracted increasing numbers of Chinese immigrants

• Altogether with the Indian immigrants who came later to work in the rubber estates, contributing toward creating a plural society & the problem came with it.

• Unlike earlier Chinese immigrants who came in small number & adapted to local society, these later immigrants lived apart.

• They formed their own kongsi (association) & secret society then did not interact with the locals.

• Unless drawn into feuds, frequently broke out among the Malay chiefs until threatened the stability of the feudal Malay states & trade in Straits Settlements.

• This situation urged by merchants until Colonial Office directed Sir Andrew Clarke the new governor.

• To prevent the problem, Sir Andrew recommended how peace & order might be restored

• Also report on the desirability of appointing a British resident adviser in any states.

• This seeds of British intervention in the Malay states were sown.

• In 1874, under the “Pangkor Engagement”, Perak was first state agreed to receive British Resident, and extended to Selangor (1874), Pahang (1888), Negeri Sembilan (1889).

• This system were known as a “Residential System”.

• Later in 1895, these four states formed a federation -Federated Malay States (FMS)-headed by a British Resident-General.

• The five other states (Kelantan, Perlis, Kedah, Terengganu & Johore) was called the Unfederated Malay States (UMS).

• North Borneo (Sabah) & Sarawak were originally part of the Brunei Sultanate.

• But it was awarded to the James Brooke (an English adventurer) because his victory to help Sultan quash the rebellion in Sarawak.

• In 1841, he was installed as the Rajah of Sarawak, so began the rule of three generation of “White Rajahs”, lasting more than a hundred years.

• Brooke’s success in Sarawak inspired other Western adventurers to try their fortune in North Borneo.

• Alfred Dent and Austrian Consul-General in Hong Kong, Baron von Overback negotiated successfully with the Sultan of Brunei for cession of additional territory & with Sultan of Sulu for cession of his rights in North Borneo .

• Nevertheless, in 1881 Overbeck withdrew from the partnership & Dent transferred his rights to the British North Borneo Company

• In 1888, the British presence in Borneo was formalized when North Borneo & Sarawak were made British protectorates.

• Both, however remained under private administration until ceded to the British Crown in 1946 when they became Crown colonies.

Independence• The year 1948-marked the commencement of the

communist insurgency, the “emergency” as it was called, lasted twelve years.

• It cast a pall over constitutional development in the Malay Peninsula, but did not hinder progress towards eventual self-government as was agreed in the preamble to the Federation of Malaya Agreement 1948.

• In 1951, the ‘member’ or ‘quasi-ministerial’ system was introduced to prepare some nominated members of the Federal Legislative Council for responsible government.

• Then the Federal Legislative Council was expanded to incorporate these ‘members’ with portfolios.

• Finally, in 1955 the first federal elections were held. The Alliance Party of United Malays National Organization (UMNO), Malayan Chinese Association (MCA) & Malayan Indian Congress (MIC) led by Tunku Abdul Rahman won 41 out of 42 seats contested.

• Next Tunku was appointed the federation’s first Chief Minister.

• In 1956, the Tunku led a delegation to London to negotiate for independence.

• At the London Conference, the basic principles for the granting of independence were agreed to.

• An independent Constitutional Commission-the Reid Commission-was appointed to draw up a constitution for an independent federation.

• The Reid Commission’s proposals, as amended, became the constitution for the federation, which proclaimed its independence on 31 August 1957

Development of The Law Before The British Era

Historic Period• Hindu-Buddhist Influence

– Indian influence prevailed for over a thousand years. Under it, Hindu-Buddhist influence spread in all other spheres of life.

– The Malay riverine village became a kingdom. At the core of this transformation was the concept of the god-king.

– The Malay chief was elevated to devaraja or semi-divine king who derived his authority from divine power transcended the customary laws of the tribe

• The god-king, consequently, possessed absolute political & legal authority.

• Justice was dispensed by the king, advised by learned Brahmans on the right law for each caste.

• Hindu court ceremonial rituals were adopted & became so deeply imbedded in the Malay states that many of these have survived to this day despite the advent of Islam.

• Below the god-king were two officials, who were very important to a riverine kingdom;– The Bendahara– The Laksamana

• Hindu law, based on;– Dharmasutras (law books in prose), – Dharmasastras (law books in verse), – Commentaries– Customary law

• And these was part of an extensive legal system which spread to South-east Asia between the 8th & the 14th centuries.

• Its influence was wide-ranging, covering matters concerning the family & succession, property, contract, crime, procedure & evidence (P.P. Buss-Tjen 1958; 264)

• Of all its braces, constitutional law & criminal law made the most impact on the states in the region.

• Hindu criminal law, based on was harsh & it never changed from the remote times in which it had evolved.

• The whole of that law was characterized by the lex talionis (law of retaliation-an eye for an eye, tooth for a tooth).

• However, caste distinctions varied the penalties (Andaya & Andaya, 2006:46).

Retaliation was carried out only when a member of a lower caste injured someone of a higher caste.

In the caste of equals, fines were usually imposed on the offenders.

Brahmanas were practically immune. Treason, perjury, murder, robbery & most offences involving the use of force were punishable with death.

Execution was by impaling, hanging or drowning.

In contrast, the Hindu law concerning sexual offences was far milder.

Retaliation was carried out only when a member of a lower caste injured someone of a higher caste.

In the caste of equals, fines were usually imposed on the offenders.

Brahmanas were practically immune. Treason, perjury, murder, robbery & most offences involving the use of force were punishable with death.

Execution was by impaling, hanging or drowning.

In contrast, the Hindu law concerning sexual offences was far milder.

Particularly if compared to the Syariah law which came later.

For example, adultery & seduction of a married woman were punishable with a fine whereas the Syariah law prescribed stoning to death for both.

Hindu law was paramount in the beginning of the 15th century. The rigid law was superimposed on ancient customs far more lenient.

Some element of the Hindu law persisted right up to the 19th century, mitigated by the earlier Proto-Malay customs & later Syariah law, but not eradicated.

Particularly if compared to the Syariah law which came later.

For example, adultery & seduction of a married woman were punishable with a fine whereas the Syariah law prescribed stoning to death for both.

Hindu law was paramount in the beginning of the 15th century. The rigid law was superimposed on ancient customs far more lenient.

Some element of the Hindu law persisted right up to the 19th century, mitigated by the earlier Proto-Malay customs & later Syariah law, but not eradicated.

The Malacca SultanateThe Malacca Sultanate At the time Malacca founding by Parameswara & inhabitants by Orang Asli & Orang Laut (seafaring people-fisherman-pirates)

Presumably, Malay adat Law incorporating Hindu-Buddhist elements applied originally

One of the greatest achievements of Malacca Sultanate was the formulation of the concept of a state & its functions.

It was clearly expressed in the Sejarah Melayu (Malay Annals). Elements of it still be look today.

At the time Malacca founding by Parameswara & inhabitants by Orang Asli & Orang Laut (seafaring people-fisherman-pirates)

Presumably, Malay adat Law incorporating Hindu-Buddhist elements applied originally

One of the greatest achievements of Malacca Sultanate was the formulation of the concept of a state & its functions.

It was clearly expressed in the Sejarah Melayu (Malay Annals). Elements of it still be look today.

By 1500, the Malacca Sultanate had a systematic administrative structure that was to be the model for later Malay states nowadays.

At the apex was Sultan, with the absolute power & believe as a represent of God (Allah).

The center of government this time was a Sultanate Palace

Then to legitimize his position & prestige, the Sultan claimed descent (kinship) of Raja Iskandar Zulkarnain (Alexander the Great).

Below the sultan is minister (cabinet), it consists; Bendahara- the most important minister; who combined the modern prime minister, Chief justice Commander-in-chief of the army

Temenggung-was the chief of police & chief magistrate in nowadays.

Laksamana-the admiral of the fleet

By 1500, the Malacca Sultanate had a systematic administrative structure that was to be the model for later Malay states nowadays.

At the apex was Sultan, with the absolute power & believe as a represent of God (Allah).

The center of government this time was a Sultanate Palace

Then to legitimize his position & prestige, the Sultan claimed descent (kinship) of Raja Iskandar Zulkarnain (Alexander the Great).

Below the sultan is minister (cabinet), it consists; Bendahara- the most important minister; who combined the modern prime minister, Chief justice Commander-in-chief of the army

Temenggung-was the chief of police & chief magistrate in nowadays.

Laksamana-the admiral of the fleet

Penghulu bendahari- chief secretary of the bendahara & treasurer (head of four shahbandar)

Shahbandar-harbour master (there four shahbandar to attend to four main groups of traders- from China & the Far East; Java & the Malay Archipelago; from west India (i.e Gujeratis); and from south-east India (i.e. the Tamils)

Mandulika or governor of an isolated outpost (who exercised & criminal jurisdiction)

Orang Kaya (Nobles) Before the coming of Islam, the law applicable was Malay adat law specifically adat Temenggung ( the branch of Malay adat law based on the patriarchal traditions)

Penghulu bendahari- chief secretary of the bendahara & treasurer (head of four shahbandar)

Shahbandar-harbour master (there four shahbandar to attend to four main groups of traders- from China & the Far East; Java & the Malay Archipelago; from west India (i.e Gujeratis); and from south-east India (i.e. the Tamils)

Mandulika or governor of an isolated outpost (who exercised & criminal jurisdiction)

Orang Kaya (Nobles) Before the coming of Islam, the law applicable was Malay adat law specifically adat Temenggung ( the branch of Malay adat law based on the patriarchal traditions)

It came via Palembang & was so altered under Hindu influence & lost much of its original matriarchal elements.

It also was the law of the sultan therefore autocratic nature

Then later adopted in all the Malay states except Negeri Sembilan (practiced adat perpatih)

Adat Temenggung was also basis of the law contained in most of the Malay legal codes or digest

It came via Palembang & was so altered under Hindu influence & lost much of its original matriarchal elements.

It also was the law of the sultan therefore autocratic nature

Then later adopted in all the Malay states except Negeri Sembilan (practiced adat perpatih)

Adat Temenggung was also basis of the law contained in most of the Malay legal codes or digest

Which were compiled from the mid-fifteenth century onwards to facilitate the uniformity of decisions.

The other branch of Malay adat law was adat Perpatih.

It was based on the matriarchal tradition

It was brought directly from Minangkabau by Minangkabau settlers.

Which were compiled from the mid-fifteenth century onwards to facilitate the uniformity of decisions.

The other branch of Malay adat law was adat Perpatih.

It was based on the matriarchal tradition

It was brought directly from Minangkabau by Minangkabau settlers.

There were two legal digests in the Malacca Sultanate: Undang-undang Melaka (Laws of Melaka) also as Hukum Kanun Melaka or Risalat Hukum Kanun

Undang-undang Laut Melaka (Maritime Laws of Melaka)

The undang-undang Melaka covered a wide range of constitutional, civil and criminal matters.

There was no clear demarcation between them or between the secular & the religious.

The Undang-undang Laut Melaka as its name indicates, covered largely maritime matters.

There were two legal digests in the Malacca Sultanate: Undang-undang Melaka (Laws of Melaka) also as Hukum Kanun Melaka or Risalat Hukum Kanun

Undang-undang Laut Melaka (Maritime Laws of Melaka)

The undang-undang Melaka covered a wide range of constitutional, civil and criminal matters.

There was no clear demarcation between them or between the secular & the religious.

The Undang-undang Laut Melaka as its name indicates, covered largely maritime matters.

It is not know whether these digests truly represented the laws that existed or contained laws that were actually enforced.

The coming of Islam saw the beginning of attempts to introduce Syariah law & modify Malay adat law to accord with Islam.

It is a process which continue to this day. Syariah law weakened the force of adat law yet was itself modified by the latter,

So that what eventually evolved into the Islamic law applicable today is not the same as the pure Syariah law applicable in its place of origin

It is not know whether these digests truly represented the laws that existed or contained laws that were actually enforced.

The coming of Islam saw the beginning of attempts to introduce Syariah law & modify Malay adat law to accord with Islam.

It is a process which continue to this day. Syariah law weakened the force of adat law yet was itself modified by the latter,

So that what eventually evolved into the Islamic law applicable today is not the same as the pure Syariah law applicable in its place of origin

The process of Islamization can seen in the Malay digests.

For example earlier versions of the Undang-undang set out the adat law whereas later versions show mixture of adat law & principles of the Syariah.

The influence of Syariah law is evident, particularly in the provision of an alternative to the penalties under adat law for every offence.

This alternative gave Sultan the discretion to impose the penalty deemed appropriate, as policy or prejudice dictated.

The process of Islamization can seen in the Malay digests.

For example earlier versions of the Undang-undang set out the adat law whereas later versions show mixture of adat law & principles of the Syariah.

The influence of Syariah law is evident, particularly in the provision of an alternative to the penalties under adat law for every offence.

This alternative gave Sultan the discretion to impose the penalty deemed appropriate, as policy or prejudice dictated.

The composite law-Malay adat law with Hindu-Buddhist relics & overlaid with Syariah principles-contained in these later versions of the Undang-undang Melaka was the model for the Malay digest in the later Malay states.

The composite law-Malay adat law with Hindu-Buddhist relics & overlaid with Syariah principles-contained in these later versions of the Undang-undang Melaka was the model for the Malay digest in the later Malay states.

Portuguese AdministrationPortuguese

Administration After Malacca conquest by Portuguese in 1511, a military & administration was established.

Malacca was governed by a governor or captain of the fortress (A Formosa)

In military matters the governor had to consult the captain-general of war (commander in chief) & a sergeant-major.

A council comprising the ovidor (chief justice), viador (major), bishop & secretary of state assisted the governor in civil matters.

After Malacca conquest by Portuguese in 1511, a military & administration was established.

Malacca was governed by a governor or captain of the fortress (A Formosa)

In military matters the governor had to consult the captain-general of war (commander in chief) & a sergeant-major.

A council comprising the ovidor (chief justice), viador (major), bishop & secretary of state assisted the governor in civil matters.

Seven magistrate were elected annually from the ranks of leading citizens.

They formed the ‘Corpus de Cidade’-a body managed all matters concerning the walled city of Malacca.

It exercised civil & criminal jurisdiction over all Portuguese inhabitants.

Appeal lay to the ovidor & in important cases, the governor himself presided over the magistrate court.

Seven magistrate were elected annually from the ranks of leading citizens.

They formed the ‘Corpus de Cidade’-a body managed all matters concerning the walled city of Malacca.

It exercised civil & criminal jurisdiction over all Portuguese inhabitants.

Appeal lay to the ovidor & in important cases, the governor himself presided over the magistrate court.

The Portuguese authorities did not extent their influence over the Malay & other Asian communities who lived outside the city wall.

Their interest was in trade not in political power.

Beyond the city wall, Portuguese retained much of the former Malacca administration. Headmen or Kapitan for each community were appointed to maintain law & order.

Supervised by a Malay bendahara- excised civil & criminal jurisdiction.

A Malay temenggung was responsible for the rural districts

A shahbandar was put in charge of all non-Portuguese traders

The Portuguese authorities did not extent their influence over the Malay & other Asian communities who lived outside the city wall.

Their interest was in trade not in political power.

Beyond the city wall, Portuguese retained much of the former Malacca administration. Headmen or Kapitan for each community were appointed to maintain law & order.

Supervised by a Malay bendahara- excised civil & criminal jurisdiction.

A Malay temenggung was responsible for the rural districts

A shahbandar was put in charge of all non-Portuguese traders

Dutch AdministrationDutch Administration

The Dutch administration was headed by a governor.

He was assisted by a council comprising; the collector, The fiscal The mayor The upper merchant A secretary.

A Politie Raad (Police Council) formed the executive while the Read van Justitie administered justice.

The Dutch administration was headed by a governor.

He was assisted by a council comprising; the collector, The fiscal The mayor The upper merchant A secretary.

A Politie Raad (Police Council) formed the executive while the Read van Justitie administered justice.

Ecclesiastical matters were managed by a special council .

Regulations were issued by the government in Holland, Batavia (Java) & by the local executive.

Europeans were governed by Dutch laws based on colonial statutes

It is uncertain what law applied to the local & other Asian inhabitants.

Dutch like the Portuguese, solely did not interested in trade.

However, Dutch trading interest centered on the spice islands of Maluku & Batavia.

Ecclesiastical matters were managed by a special council .

Regulations were issued by the government in Holland, Batavia (Java) & by the local executive.

Europeans were governed by Dutch laws based on colonial statutes

It is uncertain what law applied to the local & other Asian inhabitants.

Dutch like the Portuguese, solely did not interested in trade.

However, Dutch trading interest centered on the spice islands of Maluku & Batavia.

The motive Dutch capturing Malacca was not to directly profit from its use, but rather to incorporate it in a system of trading bases & to deny the Portuguese in Malacca.

Then once Malacca was in Dutch hands, their interest in it waned.

Consequently, the Dutch never attempted to extend their political authority beyond the city of Malacca & the adjoining district of Naning.

Dutch practice in Batavia to leave the local inhabitants to their own laws,

Unless these clashed with generally accepted principle of justice

Then it may be assumed the Dutch did likewise in Malacca.

The motive Dutch capturing Malacca was not to directly profit from its use, but rather to incorporate it in a system of trading bases & to deny the Portuguese in Malacca.

Then once Malacca was in Dutch hands, their interest in it waned.

Consequently, the Dutch never attempted to extend their political authority beyond the city of Malacca & the adjoining district of Naning.

Dutch practice in Batavia to leave the local inhabitants to their own laws,

Unless these clashed with generally accepted principle of justice

Then it may be assumed the Dutch did likewise in Malacca.

Reference

• P.P. Buss-Tjen. 1958. American Journal of Comparative Law (ver.7)

• Barbara Watson Andaya & Leonard Y. Andaya. 2001. A History of Malaysia (2nd ed.) London: Palgrave)

• Ahmad Ibrahim. 1992. Towards a History of Law in Malaysia and Singapore. Kuala Lumpur: DBP

• Harding, Andrew J., 1970. Law, Government and the Constitution in Malaysia. London: Kluwer Law International.

• Kennedy, J., 1993. A History of Malaya. (3rd ed.) Kuala Lumpur: Abdul Majid & Co