Divers Paths to Justice - English - Forest Peoples Programme

Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiaavoid hardship to the local inhabitants. 3 The religions and customs of thelocal inhabitants were recognised by general principles of English law asexceptions, particularly in its ecclesiastical jurisdiction. 4 This was in accordwith the doctrine of continuity and the general way in which British lawrecognised local laws and customs in the nations that, by consent or forcewere added to the British Empire. 5 Although the accommodation andadaptations were somewhat eclectic, on the whole, it meant that pre-existingadat or customary laws of the various “alien races” 6 as well as therecognition of Islamic religious laws applied as personal laws.The principles of English common law and the rules of equity werereceived at different chronological points in Malaysia’s history. English lawwas introduced in the Straits Settlement through the Royal Charter ofJustice 1826. The Malay States received English law through the Civil LawEnactment 1937 and in the Unfederated Malay States in 1951 though theCivil Law (Extension) Ordinance. These were merely formal receptions asEnglish law and equity principles had already been applied indirectly inthose States through administrative arrangements well before the statutoryreceptions. English principles of English law and equity were appliedbecause they were in accordance with principles of natural justice which thecourts had an inherent jurisdiction to apply. 7In the Borneo States, English law applied in Sabah through the Civil LawOrdinance 1938 and the North Borneo Application of Laws Ordinance of1951, and in Sarawak, through the Application of Laws ordinance 1928 and3 Choo Ang Choo v Neo Chan Neo (Six Widows Case) [1911] 12 SSLR 1204 Sir Benjamin Malkin in construing the Charter in “In the Goods of Abdullah”[1869] 1 Ky.216-221 held that the religions and customs of the local inhabitantswere recognised by general principles of English law as exceptions, particularly inits ecclesiastical jurisdiction and not by the Charter.5 An excellent explanation of the principles of continuity is given by Mark D Waltersin “The “Golden Thread” of Continuity: Aboriginal Customs at Common Law andUnder the Constitution Act, 1982” 1999 in McGill Law Journal 712.6 Choa Choon Neo v Spottiswoode, above n1.7 Motor Emporuim and Arumugam (1933)41