Malaysian legal background essay
The Straits Settlements were a group of United kingdom territories found in Southeast Asia. Originally established in 1826 as part of the areas controlled by the English East India Company, the Straits Pay outs came under direct British control as a crown colony in 1 04 1867. The colony was dissolved in 1946 within the British reorganisation of the south-east Hard anodized cookware dependencies following a end with the Second World War. The Straits Pay outs consisted of the four individual settlements of Malacca, Penang (also called Prince of Wales Island), Singapore (with Christmas Area and the Cocos Islands).
The island of Labuan, off the coast of Borneo, was also included into the colony with effect from one particular January 1907, becoming a distinct settlement inside it in 1912. Except for Singapore, Xmas Island, plus the Cocos Island destinations, these areas now form part of Malaysia. The Island of Penang in highligh was under the governance of Sultan of kedah however their noted any time the esthablishment of English East India company a contract was penned by the Leader of Kedah and the organization for penang.
Only $13.90 / page
Now in judging what is the “‘lex loci in the island will require answers to two questions as below: i) Was the Island a “settled or “ceded colony?. ii)Was the law of Kedah to be applied to tropical isle of Penang on earth that the island was “ceded?
For the first 20 years after esthablishment, it was noted that the simply law set up was “Regulations of 1794 or “nature of law. On Drive 1807, the English Top granted the first charter of rights, which ended in the esthablishment of The courtroom of Judicature in Penang. The effect of the charter could possibly be seen in Kamoo v Basset, In lso are Goods of Abdullah and Reg sixth is v Willans.
The Kamoo versus basset (1808) case, paperwork that the individual a indigenous of Bengal, had consented to be a great employed by the defendent who had been an army expert in the Bengal Native Infantary. However upon severe mistreatment by the workplace an Authorities Majistrate grievance was made by plaintiff. The plaintiff submitted and actions for strike, battery and false imprisonment against the defendent, claiming injuries for $600. The decision in short observed payment to plaintiff in $150 with cost.
In the Goods of Abdullah (1835) is mentioned the principle issue is whether a Muslim, who died in Penang, unit his complete property by means of will? Nonetheless it was determined that the can of Abdullah being esthablished as a valid instrument.
Regarding Fatimah Ors v Logan Ors it had been noted that since 1786, Penang becoming then a desert and uncultivated island, inhabited except simply by few intinerant fisherman and without any fixed institution was ceded by the Rajah of Kedah to Captain light, an office of EIC, intended for and on behalf of the business. This simple fact was essential in this case consideringg the platiff’s petition to secure a decree of the court declaring that the dearly departed died intestate. Three preliminary question arised in this case which are, i) Wheter the capacity with the deceased to generate a will is usually to be decided by simply Mohamedan or by British law. The verdict was handed as the deceased’s capacity to write a will will be decided by “lex loci but not by Mohamedans law.
Additional Important cases in aspect of the “lex loci involves Choa Choon Neoh versus Spottiswodde, Isaac Penhas v Tan Soo Eng, Shaik Sahied v Sockalingam Chettiar.
Reception of English Law in Malay States.
As noted before common regulation and value was utilized in the straits settlements by virtue of the three hire of proper rights. The events however would not apply to the Malay declares. The introduction of the Resident system in Perak according to the Pangkor Treaty 1874, allowed the development of english designed courts by Sultan and english all judges were appointed.
It should be noted that beggining with the civil Rules Enactment Zero 3 of 1937, this sort of judicial practise received the official stamp of approvalby legislature. Section two (i) with the enactment provides that “save in so far as different provision have been or may possibly hereafter be mada any written law in effect in the federated Malay declares, the common regulation of england, and the rules of fairness, as administrated in england at the commencement of the Enactment shall be in force inside the Federated Malay states.
Upon case that can be disscussed with regards to “common law are the Goverment of Perak v A. R Adams (1914), which concerns injury to the plantiff’s land by defendent. Problem which was arised was wheter the defendant is exempt from liability on the floor that he was without wilfulness or negligence using his land on the principle which a man need to use his own terrain and not to damnify an additional. The court found the defendent responsible under all circumstances he’s liable for the damage caused.
In re the will of Yap Kwan Seng, which the dearly departed gave path in his can that his hose and land always be held in trust for ever to get a family residence for our ancestors worship as family burial ground according to chinese persuits. The Issue prior to court was whether this kind of a personalized was valid a not. The arguments made had been (1) Which the rule against perpetuities will not excist in and should not really be adopted in the federated malay declares, (2) That even if the guideline be applied, the trust are saved from offence agaist it, (3) That having regard to chinese traditions the trust should be considered to be religious and charitable and therefore without offence to the secret. During the going forward of this case it was known that the guideline agaisnt perpetuities has never been utilized in the states. Nevertheless it was concluded that to respect these trust either while trust for religious reasons or because trust relating to or benefitting the community at large or any part of it, it follow that there is no way to become saved or excepted via repugnancy to the rule of perpetuities and therefore are therefore void.
In the case of permodalan plantations sdn. bhd versus Rachuta sdn. bhd (1985) can be discussed as legal set off which can be based on english statute can be not included in the expression “the common rules of england. Only equitable set “off is portion of the local rules and consequently the court can only deal with and equitable set-off.