Tutorial 1 (MLS) - TUTO MLS PDF

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TUTORIAL 1: HISTORY AND DEVELOPMENT OF THE MLSQUESTION 1(a) Describe the administrative structure during the reign of the Malacca Sultanate. ( marks)(put intro)(comprehensive intro of admin structure of malacca during malacca sultanate not only during reign of Paramesware)At the time of founding of ...

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TUTORIAL 1: HISTORY AND DEVELOPMENT OF THE MLS QUESTION 1 (a) Describe the administrative structure during the reign of the Malacca Sultanate. (10 marks) (put intro)(comprehensive intro of admin structure of malacca during malacca sultanate not only during reign of Paramesware) At the time of founding of the Malacca by Paramewara, the source of laws is basically an incorporation of Malay Adat law and the Hindust-Buddhist elements. At the peak of administration, the Sultan is the one who wields the absolute power, alluding that he is the head of State and also head of Government who discharges day-to-day administrative works. It is also believed that in Islam, the Sultan is deemed to be ‘khalifah’ which is also known as ‘vicegerent of Allah’. Primarily, Sultan holds absolute power, yet the power is then limited as tradition requires sultan to consult with those under his authority Next, Bendahara is prominently known as the most important minister who exercises political and judiciary functions. This is due the Bendahara is the person who combined offices of the modern prime minister, chief justice and commander-in-chief of the army. Moreover, Temenggung is also responsible for apprehending criminals, maintaining prisons, keeping peace in general. In modern days, he can be considered as chief of police and chief of magistrate. While on the other hand, Laksama is the admiral of fleet which in charge for the security of the Sultanate d most importantly, the China-India trade route within the Straits of Settlements. Next, the Shahbandar is the harbour master and a collector of customs. The Shahbandar looks after foreigners’ welfare and the Naval law. Next, the Mandulika is the governor of isolated outpost and exercised criminal and civil jurisdiction. Lastly, the Orang Kaya is literally known as the rich person who is usually consulted by Sultan about the people. There will be assembly of nobles and they have to reach a consensus.

(Put conclusion)

Use connector (below the sultan)(don’t just use next)

(b) Describe the legal system and the sources of law that were applied during the Malacca Sultanate (written and unwritten laws)

(10 marks)

Before the coming of Islam in Malaysia, the Malay Adat, specifically Adat Temenggung is assimilated and subsequently applied in their daily basis. As the Adat Temenngung is brought in by the Sultan, it becomes the law of Sultan, thus making it autocratic and aristocratic in nature. Aristocratic because the rules are made by decree of a ruler and autocratic because the rules tend to define a crime as an infringement of the ruler’s prerogative. Adat Temenggung is patrilineal which was said to be allegedly injected with the notion of caste and male dominance. It also embodies the influence of Hindu and it letter becomes the law. Eventually, the law is pervasively accepted and adopted in local states except Negeri Sembilan and some districts in Melaka like Naning. It is also the foundation of the law contained in the most of the Malay legal digests which were compiled under the reign of Sultan Muzaffar Shah due it is aimed to facilitate the uniformity of decisions There are two main legal digests during Malacca Sultanate which are UndangUndang Melaka which is popular to be known as Hukum Kanun Melaka/ Risalat Hukum Kanun and Undang-Undang Laut Melaka. The areas that are covered under these two wellknown digests are also distinctive as matters in Undang-Undang Melaka encompass wide spectrum of constitutional, civil and criminal matters. The digest also consists of matters pertaining to personal Islamic matters like validity of marriage, talak and claim of property. Conversely, Maritime issues are governed by Undang-Undang Laut Melaka. The legal rules that eventually evolved were shaped by three main influences, namely, the early non-indigenous Hindu/ Buddhist tradition, Islam and native adat. The coming of Islam depicts that an endeavour to indoctrinate Islamic value via Islamic process succeeded as the composition of laws during Malacca sultanate is built with the influence of Malay Adat and Hindu-Buddhist and overlaid with principles of Syariah (Put conclusion) 1. Hindu-buddhist customary laws 2. Local customary laws 3. Malay Adats (Adat Temenggung) 4. Syariah Law 1. Undang-Undang Melaka 2. Undang-Undang Laut Melaka 3. Other legal digests from other states

QUESTION 2 State the relevant provisions and reasons for the granting of the third Charter of Justice. (10 marks) The Charter of Justice granted in 1855 is aimed to remedy the defects in this system. By virtue of this Charter, the British authority in the Strait Settlements has introduced the Court of Admiralty The relevant provision for granting of the third Charter of Justice is Ordinance V (add on more about reorganisation of the court) . The primary context of this ordinance is abolition of court and replacement of the court with the Supreme Court of the Strait Settlements. The lay justices ceased to dispose for the case. The new court comprised three divisions, which each state has one court. However, In 1873, these three divisions of the court are reduced to two divisions only. Simultaneously, the Supreme court is conferred with purview of appellate jurisdiction. The Court of Appeal sat as Full Court of not fewer than three judges and as a Divisional Court of two judges in each settlement. The Supreme Court was reconstructed in 1878. The First and Second Charters of Justice are not flawless as they failed to secure a smooth and speedy disposal of the cases in the manner in which the common law envisioned it to be done. the administration of justice is menaced as the justice is not served due to the extreme increase in number of cases. The emergence of economic and social activities in the Settlements at the time has beget large number of unsettled cases. As an illustration, in Penang, there was only one Recorder at the time who rarely visited other two state and he was also dealing with tons of cases. Although there was the role of lay justices which was believed to assist and aid the Recorded, it was not sufficient to depend on lay justices due to the scarce knowledge that is possessed by them in construing common law which likely to be erroneous. Thus, the Third Charter of Justice came into existence which was primarily intended to restructure the administration of justice system.

QUESTION 3 Explain the significance of the Royal Charter of Justice 1855 on the application of English Law in the former Straits Settlements. marks)

(8

QUESTION 4 Briefly explain the effects of the residential system on the adoption of English Law in the Malay States.

(6

marks) The Residential system reinforces the application of English law, yet in informal way which has no legal force. There are two effects of the residential system which are the enactment of the legislation must be in accordance with the recommendations expressed by the residents and the decisions of the court are established by the British administrators. It is well-perceived by everyone that residents who are tasked to be advising the Sultans of the respective states on government mattes, are now considered as de facto. This is because Sultan is de jure who supposedly acts on his own, however all matters are now governed by residents who act on the behalf of the Sultans. The residents are also wielding power in wide range of matters than they were initially envisaged to have. In discharging his duties, he will introduce and apply English law in their respective states. This is how a significant amount of legislation, modelled upon Indian legislation which itself emulated English law, was enacted, such as the Contracts Act 1950 (Act 136), Evidence Act 1950 (Act 56), Penal Code (Act 574) and Criminal Procedure Code (Act 539). Next, The judges who dispose in particular case will be inclined to apply English law whenever the local circumstances would have allowed them to do so. The judiciary body is likely filled with newly appointed English judges and those trained in English who naturally opt to the English Law whenever they are unable to find any local law to apply to new situations. In the case of Motor Emporium v Arumugam, it is asserted that the English law and Equitable principles are deemed to be conforming with the notions of natural justice. Thus, although the law is not statutorily introduced, there is still a reception of English Law via the Residential System.

QUESTION 5 (a) Explain the significance of the Royal Charter of Justice 1855 on the application of English Law in the former Straits Settlements. marks)

(6

(b) With reference to s.5 Civil Law Act 1956 (Revised 1972), discuss the application of English law in commercial matters in Malaysia.

(14

marks) Section 5 is the statutory authority for the reception of English law specifically in commercial matters. There is distinction between Section 5 of Civil Law Act and Section 3(1) of Civil Law Act in terms of terminology used which Section 5 used “the law to be administered” while in contrast, Section 3(1) specifies the relevant source of English law. In exhaustive interpretation, Section of 5 of Civil Law Act introduces the whole English law in regards with mercantile matters, also together with statutes. The words used to describe subsections (1) & (2) of Section 5 are also contrasting which signify the difference in the extent to which English Law is applicable in other Malay states and other 4 states which are Sabah, Sarawak, Penang and Malacca. In essence, Section 5(1) provides that in the absence of any local written legislation, English commercial law shall be applicable in Peninsular Malaysia with the exception of Penang and Malacca, as administered in England on 7 April 1956. Conversely, as seen in Section 5(2), in the states of Penang, Malacca, Sabah and Sarawak, the English commercial law applicable will be the same as that administered in England in the like case at the corresponding period, in the absence of any local written law. In the latter subsection, the cut-off date has been removed in order to streamline the decisions of the Courts in the Straits Settlements with that of the English courts To encapsulate, theoretically, in commercial matters, there is a continuing the reception of English law in these four states (Sabah, Sarawak, Penang and Malacca) while in the other states, the reception is halted at the cut-off dates. However, in practical, the difference is just a mere notional theory as the continuance of reception of English law pertaining to commercial matters still exists. This can be illustrated in

the case of Jamil bin Harun v Yang Kamsiah & Anor, Malaysian court, following development in England, exercised jurisdiction to grant Mareva injunctions (enabling the court to freeze the assets of the defendant) and to issue ‘Anton Killer’ orders (requiring a defendant to permit a plaintiff or his representatives to enter the defendant’s premises to inspect or to take away material evidence that the defendant might wish to remove or destroy in order to frustrate the platiff’s claim; or to force a defendant to answer certain questions). On a further note, there are two contradicting approaches to the interpretation of Section 5, arising from two Privy Council decisions. In the case of Seng Djit Hin v Nagurdas Purshotumdas, the Privy Council held that “the law to be administered was not mercantile law, but the law” as would be administered in England in like case. To abridge this, this approach is scrutinising the nature of the case, if the case is pertaining to mercantile law, then any law can be applicable. The second approach can be depicted in the case of Shaik Sahied bin Abdullah Bajerai v Sockalingam Chettiar, the Privy Council held that the statutes were not part of the mercantile law because they contain saving clauses excluding from their scope of the borrowing of money in the course of ordinary of the mercantile law. consequently, the statutes did not apply in the strait settlements. To shorten, the second approach is examining the nature of both the law and case. If the case is mercantile law, then the law must be pertaining to mercantile matters....