영국 식민지배 시기 말레이시아 법제도의 변동: 말레이 반도를 중심으로
Malaysian Legal System under British Colonial Rule: with Special Reference to the Legal System of Malay Peninsula
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This work is to survey the impact of British colonial rule on the legal system of Malay peninsula. Before the coming of the British, Islamic law was the law of the land. Before the first treaties, the population of Malay peninsula consisted almost sorely of Muslim Malays. The only law at that time applicable to Malays was Islamic law modified by local customs. Under British colonial rule, English law introduced into the Malay States in two ways. On the advice of the British administrators, a number of laws were enacted. Another way in which the English law was introduced was through decisions of the judges in the courts. The practice adopted by the judges was confirmed when in 1937 the Federated Malay States’ Civil Law Enactment was enacted. In 1951, the Enactment was extended to the other Malay states, and in 1956, the Civil Law Ordinance (revised 1972) introduced English law to the entire Federation of Malaya. When the British came to the Malay states, treaties were made with the Malay sultans and these provided that the rulers would receive in each of their states a British Resident or Advisor and that they should follow his advice in all matter other than the Malay religion and Malay custom. In theory the Muslim religion and Islamic law were matters left to the discretionary power of the rulers, but in practice the British did interfere in the administration of Islamic law in the Malay states. It seems that in theory Islamic law was regarded as the law of the land, but in practice the British had not always undertaken the task of propounding that local law themselves. As a result, when the country achieved its independence, the Islamic law turned into the personal law of each states. And the rulers retained their power and jurisdiction on matters pertaining to personal and family law of persons professing the religion of Islam.
Abstract
This work is to survey the impact of British colonial rule on the legal system of Malay peninsula. Before the coming of the British, Islamic law was the law of the land. Before the first treaties, the population of Malay peninsula consisted almost sorely of Muslim Malays. The only law at that time applicable to Malays was Islamic law modified by local customs. Under British colonial rule, English law introduced into the Malay States in two ways. On the advice of the British administrators, a number of laws were enacted. Another way in which the English law was introduced was through decisions of the judges in the courts. The practice adopted by the judges was confirmed when in 1937 the Federated Malay States’ Civil Law Enactment was enacted. In 1951, the Enactment was extended to the other Malay states, and in 1956, the Civil Law Ordinance (revised 1972) introduced English law to the entire Federation of Malaya. When the British came to the Malay states, treaties were made with the Malay sultans and these provided that the rulers would receive in each of their states a British Resident or Advisor and that they should follow his advice in all matter other than the Malay religion and Malay custom. In theory the Muslim religion and Islamic law were matters left to the discretionary power of the rulers, but in practice the British did interfere in the administration of Islamic law in the Malay states. It seems that in theory Islamic law was regarded as the law of the land, but in practice the British had not always undertaken the task of propounding that local law themselves. As a result, when the country achieved its independence, the Islamic law turned into the personal law of each states. And the rulers retained their power and jurisdiction on matters pertaining to personal and family law of persons professing the religion of Islam.
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