British Administration of Malacca

In 1795 the British occupied all the Dutch settlements in the Far east including Malacca due to the Napoleonic war. The Dutch finds it difficult to maintain her colonies due to the operating cost of war maintenance against the French. Prince of Orange of the Dutch decided to temporarily cease their colonial possession to the British for protection. Britain and the Dutch were close allies in the Napoleonic war and, the agreement was made that the Dutch colonial properties to be handed back after the end of the war.

During their occupation, the British administration had not paid much interest to the development, and administration of Malacca which was still under Dutch influences during the Napoleonic war. However, after the war ended, Malacca was given to the British under the 1824 Anglo-Dutch treaty (Treaty of Holland). It was also agreed by the treaty that, the Malay Peninsula would be treated by the British and respected by the Dutch as being a British sphere of influence, and in return Batavia would remain under Dutch sphere of influence.

By the Treaty of Holland, the Malay Peninsula fell under complete British monopoly. The acquisition of Malacca permanently by the British from the Dutch has made it possible for an establishment of regular administration by the British in the Malay states without interferences from other foreign powers. Gaining Melaka had helped the British grow their influence, and strengthen their hold in the Malay states and regular administration of law was established in Malacca.

As a result of Anglo-Dutch Treaty in 1824, The Second Charter of Justice was introduced in Malacca when Britain took permanent possession of Malacca in 1825. In 1826, Malacca became part of the Straits Settlements, The Charter of Justice was granted in order to extend the jurisdiction of the Court of Judicature of Prince of Wales Island to Malacca and Singapore, thus superseding the previously Dutch law.

The Straits Settlements after 1826

In 1826 Melaka, Penang, and Singapore were merged into the Straits Settlements. In the same year a new Charter – called the Second Charter of Justice was granted by King George IV to the merged settlements. The new Charter repealed such parts of the First Charter which conferred jurisdiction upon the Court of Judicature in Penang. That court was replaced by a new Court of Judicature for Penang, Melaka, and Singapore. Otherwise the Second Charter was the same as the First Charter and its provisions were judicially interpreted as having introduced English law existing in England on 27 November 1826 into all three settlements. That interpretation meant the Second Charter effected a second statutory reception of English law for Penang; for Melaka and Singapore, it was the first.

Whereas it is widely accepted that the Charters of Justice established English law, there was, for occasionally, dispute regarding the limit of English law received, and the modification needed, considering the diverse races, religions, and customs of the local occupants and the hypothetical basis for such modifications.

The reception of English law under the Charters was not a reception of English law in its totality. This was persistent in the company of British colonial policy somewhere else, founded on the acknowledgement that not every rule of English law would be acceptable for implementation in the colonial territories. Sir Edward Stanley, the first record keeper and also a legally qualified magistrate of Penang, in explaining the outcome of the First Charter, stated the opinion that it bestowed to the local inhabitants the free practice of their religions, customs, traditions, and routines. Sir Ralph Rice, the third record keeper had the same opinion. He was thinking that the First Charter established English law exclusively in criminal cases and that in civil cases, the local inhabitants were regulated by their respective laws and customs. Meanwhile, Sir Benjamin Malkin, in interpreting the Second Charter in in the Goods of Abdullah, held that the religions and customs of the local inhabitants were accepted as exceptions to the overall implementation of English law, not by the Charter. The judicial view that prevailed might be summarized in the words of Maxwell C.J in Choa Choon Neoh v Spottiswoode ;-

In this colony, so much of the law of England as was in existence when it was imported here, and as is of general [and not merely local] policy, and adapted to the condition and wants of the inhabitants, is the law of the land; and further, that law is subject, in its application to the various alien races established here, to such modification as are necessary to prevent it from operating unjustly and oppressively on them.

// Changes in the applications of English law were made frequently. Nonetheless, the exact hypothetical or juristic basis for the changes was not certain. Eventhough, in Sahrip v Mitchell (1877) Leic. 466, custom was the basis, the //

Modifications in the application of English law were made, from time to time. However, the precise theoretical or juristic basis for these modifications was uncertain. While custom was the basis in Sahrip v Mitchell (1877) Leic. 466, the early cases tended to base the modifications on the principles of conflict of laws or private international law. For example, in Chulas v Kolson, Maxwell R. said ;-

….and where our law is wholly unsuited to the conditions of the alien races living under it, their own laws or usages must be applied to them on the same principles and with the same limitations as foreign law is applied by our Courts to foreigners and foreign transactions. They must be regarded as persons with foreign domiciles and governed for many purposes by this law, and as if they resided among us temporarily.

That reasoning, appropriate initially when the Asian inhabitants were transient aliens, was subsequently abandoned except where a truly foreign element existed. Later cases based the medications not on any analogy with private international law, but on either the provisions of the Charters or ex comitate ( the common law principles of comity which seeks to avoid injustice and hardship to the local inhabitants).

Judges repeatedly proclaimed the policy of modifying the application of English law to prevent injustice and oppression, but analysis of the cases shows a general reluctance to accommodate local circumstances and the needs of the local inhabitants. Religious and customary rules were recognized only if deemed not inconsistent with the common law or repugnant to prevailing judicial notions of justice and morality.

The administration of justice after the grant of the Second Charter remained unsatisfactory. There was only one Recorder who was assisted by lay justices. The former, based in Penang, seldom visited Melaka and Singapore, and the latter made many bad decisions. The rudimentary system was simply unable to cope with the increasing workload resulting from economic and social progress in the Straits Settlements, especially in Singapore. A Third Charter of Justice was granted in 1855 to remedy the deficiencies in the system.

The Third Charter raised the question of whether it reintroduced English law existing in England on 12 August 1855 into the Straits Settlements. This question appears never to have been resolved. General opinion agrees with Sir Benson Maxwell in R v Willans [1858] 3 Ky. 16 that the Third Charter merely reorganized the court system.

The third Charter repealed the Second Charter only to the extent necessary to reorganize the Court of Judicature. The court was split into two divisions: one for Penang and the other for Melaka and Singapore, each with its own Recorder and Registrar. The court was thereafter reconstituted several times. After the Straits Settlements were transferred from the Indian government to the Colonial Office in London 1867, Ordinance V was passed by the Legislative Council of the Straits Settlements in 1868. That Ordinance abolished the court and replaced it with the Supreme Court of the Straits Settlements. Lay justices ceased to sit. The new court comprised three divisions, one in each settlement. These divisions were reduced to two in 1873. Simultaneously, the Supreme Court was given, for the first time, appellate jurisdiction. The Court of Appeal sat as a Full Court of not fewer than three judges, and as a Divisional Court of two judges in each settlement. The Supreme Court was reconstituted in 1878. The divisions of the court were impliedly abolished by reducing the number of judges to three.

English law was introduced into the Straits Settlements not only through Charter of Justice, but also legislation. Such legislation comprised ;-

English statues enacted before 1 April 1867 (date of transfer of Strait Settlements to the Colonial Office) and extending to Indian ( and, as such, to the Straits Settlements as part of India) as well as those enacted after that date and extending to the Straits Settlement ; and

Indian statutes enacted before 1 April 1867 and extending to the Straits Settlements.

After the settlements were transferred to the Colonial Office, the Legislative Council of the Straits Settlements was formed. It was authorized to enact legislation for the settlements with effect from 4 February 1867. Examples of the legislation passed were the Evidence Ordinance 1893 (a re-enactment of the Indian Evidence Act 1872) and the Penal Code 1871 (modeled on the Indian Penal Code), which came into effect in 1872.

The Civil Law Ordinance 1878 (passed pursuant to the English Supreme Court of Judicature Acts 1873-5 which replaced the separate courts of common law and equity in England with a single hierarchy of courts administering both the common law and equity) empowered the Supreme Court of the Straits Settlements to administer common law and equity concurrently, and provided for the latter to prevail in the event of conflict. The Ordinance also provided for a considerable body of English legislation to operate on a continuing basis in commercial matters.