The concept of Lex Loci - Grade: A PDF

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The concept of Lex Loci There was an issue raised with regard to the status of Penang and Singapore whether they were ceded or settled territories. This would determine the lex loci or law of the territory. According to the common law principles, if a territory was not previously owned or occupied (...

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The concept of Lex Loci There was an issue raised with regard to the status of Penang and Singapore whether they were ceded or settled territories. This would determine the lex loci or law of the territory.  According to the common law principles, if a territory was not previously owned or occupied (terra nullius), later discovered and settled by the British, English law shall become the lex loci on the date of the settlement. In other words, English law was introduced by settled colony.  On the other hand, if the territory was an owned or occupied by other authority, later acquired by British through cession or conquest, the law previously existing continues to be in force until changed by British. In short, English law was introduced by ceded colony. Historically, Penang was regarded as ceded territory. In Kamoo v. Basset, the court held that although the first charter of justice did not in express terms introduce English Law, but its provisions were interpreted by the judiciary as having introduced English Law into Penang in 1807. In Regina v. Willans, Sir Benson Maxwell held that Francis Light ad his marines did not come to Penang as colonizers but as a garrison to take possession as ceded colony. Therefore, the law of English could hardly become lex loci. As it could only become the personal law of the garrison members. In Fatimah v. Logan, Sir William Hackett disagreed with Sir Benson Maxwell and held that: “he was not merely the commandant of a garrison but was an able administrator who obtained the settlement for the East India Company and so for the Crown of England, and that as the island was virtually uninhabited country they carry with them the laws and sovereignty of their own country.” In Ong Cheng Neo v. Yap Cheah Neo case, the matter was finally settled by the Privy Council as follows: “It is really immaterial to consider whether Prince of Wales Island should be regarded as ceded or newly settled territory, for there is no trace of laws having been established there before it was required by the East India Company. In either view the law of England must be taken to be the governing law so far as it is applicable to the circumstances of the place, and modified in its application by these circumstances.”

However, In Sejarah Melayu, a different story can be seen ,it was held that: “At the time when the British came to Penang there was fairly large Malay Kampong at about 18 acres on south bank of Penang river and the land had been occupied for about 19 years.” Although this story told us that one of the land of Penang had been occupied for many years but in fact, there was no proper system of law established. Therefore, in my humble opinion, Penang was most probably a settled colony....