Colonialism and the Legal Structures of Malaysia
by MOHIDEEN KADER
Excerpted from the Penang meeting of Multiversity, February 2002
I'm supposed to deal with national law. In my presentation I'll use Malaysia as an example because that's the only place I know. And I will try to trace historically how English law became dominant in this part of the country, and the local law became marginalised, and how certain potentials that were there in local law could not be developed because of this disruption due to the coming of colonialism. Then I'll briefly look at the situation now and probably discuss a few things that we can do to try to improve.
First of all, one of the strategies of colonialism has been to wipe out, create an amnesia in us about our own traditions, culture, which also includes law, as if we never had law, that we never had justice in our own societies, there were no institutions for this. Now this is the sort of myth that I think people have already been writing about and trying to get out of that situation.
As far as Malaysia is concerned, if you look at Malaysia, if you look at Malacca, Malacca was one of the most important trading ports in the world in the 16th century, before Alfonso Albuquerque came and conquered it on behalf of the Pope and killed many of the Muslim merchants there. He saw this as a fight between Islam and Christianity.
Now at that time, Malacca was a developed port, there were, what Alfonso saw was people from different countries, there were people from China, from India, from other areas, they were not only settled there, there were also ships coming in, there was business going on, and there was also a system of law and a system of administration of justice at that time in Malacca. So it is not true that there was no law at that time. Now what law existed there, in fact, two of the laws were actually codified, rather surprisingly for that period. One was what was called the unda unda Malacca (Malacca laws), it dealt with crimes and other commercial matters. The other called unda unda ulacca dealt with maritime law, being a port city, it needed some legal regulations, and they also had a system of dispensation of justice. Unfortunately, there's not much research done into how these things operated. There are fragments here and there but no proper research has been done.
As for the customary law of Malaysia, there were two branches of it, one was influenced by the matriarchal system, and the other was based on the patriarchal system. One was called the adat pathe, and the other was called the adat tamangovi. So both had an influence on the law of Malacca.
Now also it was influenced by Hindu law, particularly in court law, in the way the ruling class regulated their own relations, was governed by Hindu law, and criminal law was very much influenced by Hindu law.
With the coming of Islam in the 13th century, Islamic law began to have a great influence on the law that was applied in Malacca. Gradually, whatever laws that were inconsistent or contrary to the teachings of Islam were set aside and increasingly, Islamic law came to play a very crucial role.
So we see that when the Portuguese came there was already a fairly developed system of law. Of course, law does not develop in a vacuum, law develops in response to changes in society. So if this had been allowed to continue without the intrusion of colonialism in Malaysia, probably we could have developed our own system of law which could have many things in common with what we have now, but there could also be many things that could be different. So unfortunately we did not have that opportunity.
Now, when the Portuguese came, after them came the Dutch and after the Dutch came the British. During the period the Portuguese and Dutch were ruling Malacca, they did not interfere with the local administration of law. It is the British, and again it shows the genius of the British in how to control people through law, it is the British actually who introduced measures which marginalised the local law and made English law the dominant law and a legal system based on the English legal system, the dominant system in this country. It began with Penang in the early nineteenth century. There were two charters, one was the first charter of justice introduced in 1807, and the second one was the second charter of justice in 1826. Both these laws provided the legal basis for the adoption or imposition of English law into Malaya then, into Penang anyway.
Now these charters of justice provided for the introduction of English law, and at the same time, it also stated you should take into consideration local customs, traditions and all that. But in substance, this was not taken into consideration in most cases, because the people who administered the justice were people who did not know anything about the law, customs or beliefs of the people living in these Straits Settlements. Now as far as the Malay states were concerned, that is, the other states which formed Malaysia like Perak, Johor, and so on, the way English law came in was, they appointed British advisors, and British residents in various parts of these states. Now each state had a Sultan, and the sultans were supposed to receive advice from the British advisors. But actually, the sultans had no choice but to accept the advice given by these British advisors. In effect, what happened was all power went into the hands of the advisor, except, perhaps with respect to Islam, which was the religion of the Malays and their own custom and tradition. Everything else, relating to land, relating to resource, relating to trade, everything became vested with the British advisor, and the sultan had no power except to follow these things. Now, in that way, they brought into Malaysia the Criminal Procedure Code, from India, actually, into these states.
Then, of course, the other way was, the decisions of the judges also became part of the law, and the decisions were based on English precedents. Then in the year 1937, for the Malay states, they introduced the Civil Law Enactment, a statute that actually enabled the introduction of English law into the Malay states.
Then in 1956, we had the Federation of Malaya, that means the Straits Settlements and the Malay states formed a federation, then they introduced an Ordinance known as the Civil Law Ordinance and through the Civil Law Ordinance, English law became the dominant law of this country, and has continued so even until now, after independence. Now, not only did they introduce the law, not only did they have British judges to dispense justice at that time, what is more subversive and more dangerous was that they also created a legal elite, who had no knowledge whatsoever of our own history, of our own laws. Their only understanding of law was the law that came from Britain.
When I did my law course, and I did it in England, we had to do legal history. We knew all about the Norman Conquest and how equity developed, the Magna Charta and so on. But I didn't know anything about the Sharia, or the Hindu law that applied in Malaysia. It's true I studied law in England, but what about those who studied law in Malaysia? The same thing applied for many years, until a few decades ago, when there was this whole Islamisation move, and people began to look at their history in a different way, and they introduced a course, Malaysian Legal History, in the faculty here. But before that, even lawyers who were trained in Malaysia, they thought we never had any law in this country, that justice could only come through the white man. That was the type of psychology in which even our political leadership grew up, and they saw no other way except through the Western legal system that you could rule the country, that you could have justice.
Now, because of the fact that they created an elite that had no understanding of its own traditions, law or customs, we have not been able even to influence into the civil law, and even into the English law, concepts which could have been accepted by English law, concepts derived from our own traditions and so on, because they have no knowledge. For example, in England, the system of equity developed in the 15th or 16 century, in response to the rigours of the common law.
However the concept of equity existed in Islamic law, almost in the 6th century, and in fact, in places like Grenada, which has a sophisticated, developed society, they even developed further concepts like the consideration of public interest when you're deciding a case. Now if this concept had been allowed to develop in our legal system, they would become part of the Malaysian Common Law legal system. This, I think has been a great loss in terms of trying to create our own identity in the whole legal field of justice.
That's a brief history of how our own law became marginalised and colonial law became dominant until this day. And the fact is that because of the colonial intrusion, an opportunity for all legal concepts to develop has been scuttled. Unfortunately, the leadership of post colonial Malaysia also, because of the education, because of the value systems, they also do not appreciate the vast richness our local law contains, and which could be applied. We're just mimicking all along, up till now.
Another fundamental thing is the proliferation of laws, there's a feeling now that you create a law and you can solve the problem. In traditional societies, there were religious constraints, there were moral constraints, there were social constraints. You didn't need law to regulate human behaviour. But now, with modernised society, even many progressive civil society organisations begin to believe that only laws can do justice and equity to people. But I think we have seen in our own experience that there are now a lot of laws, justice is receding further and further from the majority of the population.
So, this requires a very radical rethinking about the role of law in society, and in the role of values, values embedded in religious teaching, culture or tradition. And sometimes one may argue that the less laws we have, the better. Groups regulate their behaviour, each community should regulate their own behaviour, and there should be as few laws as possible, that is one thing that we should think about.
The other thing is the mystification of law: even lawyers cannot understand very often the way law is written, the way law is interpreted. What about the ordinary man? We are making it more and more difficult for people to understand the whole legal process. We come to court, we see this very strange set up, with this judge wearing strange clothes, they used to even wear wigs, and the lawyers will be wearing gowns. Imagine a man coming from this fishing village, going to the courts seeking justice, he gets totally intimidated and alienated.
After independence, we have just continued the same traditions of mystification of not only the law, but also the whole process of coming to justice. This is also one area I think we should focus on what we can do.
Finally, because of economic disparity in society, there is no access to law for the majority of the population. What for example the consumer association of Penang has been trying to do is in order to increase the access, they have called for the creation of more tribunals where lawyers are not allowed, procedure is simple, you don't need much money and you have you dispute resolved. We are trying to create more access, easy access for the ordinary person.
In concluding, what I would like to emphasize is that just as we are
talking about history or education, when talking about law, we cannot
ignore the fact that all these are closely linked to the socio-economic
structure of society. Also the disparities in society, the disparity in
power, power relations in society. What power does the ordinary fisherman
have to influence the laws that are made in parliament? Five businessmen
could get a law enacted tomorrow if they want. So we have to realise that
we are operating in a situation in which there is great disparity of power,
disparity of wealth, disparity of influence, and that a lot of things
driven by business, what business thinks is important for it. So in this
context, how do we bring about transformation of the law making process
as well as the process of attaining justice, so that there will be justice
and equity in society? It's not an easy problem. We have to work out strategies,
how do we subvert the system?
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