British Role in Establishing Modern Legislative System in Kelantan

Abstract

This study discusses the British role in the introduction and formulation of modern law systems in Kelantan in the early 1900s. The objective of this study is to analyze the British role in introducing a modern legal system and its impact on Kelantan in the early 20th century. This research employed historical methods with quantitative and qualitative approaches based on primary and secondary sources. The findings of this study illustrated that there was a significant change in the legal system of Kelantan when the western element began to be injected in the Kelantan legal practice. In fact, in terms of the implementation of Western law, it became significantly dominant after the British dominance of the administrative affairs of the Kelantan government. The restructuring exercise since the early introduction of British law had given new life and renewal to law administration, e.g. criminal law in Kelantan. However, the impact of these changes was found to be completely unacceptable by the indigenous community which had led to the outbreak of several conflicts. The reformation of the state law of Kelantan created a shift between two principal entities in Kelantan's administration namely the Sultanate institutions and British colonial administration, which explained the dilemma and conflict that arose from British initial attempt of intervention in the affairs of the indigenous law in Kelantan.

Keywords: KelantanlawcrimeBritish colonialism

Introduction

The discussion about the development of the state's political history will not be complete without linking it to British advancement and intervention in the state. The British intervention and influence on the administrative system and policies in Kelantan, especially after the execution of the Bangkok Treaty of 1909 were significant and indisputable. The British exploitation, which that gave the impression as if they sought to reform Kelantan 'as they desired' and this had disturbed the pattern and structure of traditional indigenous administration. The consequences of British intervention can be seen from various aspects ranging from the social, economic and political aspects and in this study, the focus is given to British intervention in the legal administration in Kelantan.

The British had embarked on an early step to change the aspects of Kelantan's legislation upon the opportunity after the execution of the Bangkok Treaty of 1909, which unlocked the opportunity for British dominance and advance economic colonialism policies. One of the aspects given by attention by the British in the process of strengthening its power and introducing reformation was to introduce British law as a measure to further enhance its administration and facilitate the exploitation process. The British decision to bring in Western legal system such as the introduction of the court and Western legislation which was supposedly intended to improve the existing legal system became the debilitating cause that eliminated the traditional law in Kelantan; this move eventually affected the sovereignty of the Kelantan Sultanate institution.

Problem Statement

Although various studies have been conducted regarding the state's history, those that examine the development of its legal system is very limited. Most of the written history focused on popular issues such as administration and economy with a slight marginalization of legal affairs. There are not many historical interpretations that delve into this especially from the point of view revolutionist. The existing writing only describes the issue within a limited discussion range.

In this limited radius of discussion, there is often an opinion dispute on the role played by the British in the restructuring of the legislative body of Kelantan. Some claimed that the British was fully responsible for the restructuring of the legislative body but in actual fact was not as alleged. Before the British arrival, as early as Raja Long Yunus' reign, the fundamental elements of the existing legal system had already been formed. Islam became the axis of this legal system with the elements of custom and heritage complementing the process of assimilation from time to time. The confusion in the understanding of the history of Kelantan’s law caused the community to misinterpretation the real facts. Hence, this study attempts to enlighten the less acknowledged part of the legal history of Kelantan which was affected by British policy and at the same time empowered the role of the Kelantan Sultanate institution as an already existing form of the legal system.

Research Questions

What are the roles played by the British in the restructuring of the legal system in Kelantan and what are the consequences?

Purpose of the Study

This study was conducted to explain the role played by the British in restructuring the legal system in Kelantan and its consequences.

Research Methods

A qualitative method was chosen as the methodology of the study because, with this method, the valid and convincing data can be obtained. Throughout the period of data collecting, primary sources such as the Colonial Office files, Kelantan annual reports and related documents from the British were fully to extract important and useful data.

Findings

Please replace this text with context of your paper. Before British intervention, the state of Kelantan adopts the Islamic legal system. The traditional legal system that was used before the existence of the Western law was not in any way outdated and not practical as alleged; Kelantan’s social condition was relatively regulated before the start of the British era. In addition, the strong influence of Islamic law starting from the era of Raja Long Yunus (1762-1794) which indicated that Kelantan was a state that was very conscious of peace. Criminal issues, for instance, had not been taken lightly and waived by the ruler. In fact, every problem related to a crime was referred to the existing written source of law such as the State Custom Code law and the Kelantan Tahafus . The law introduced since the year 1754 consisted of 19 clauses ( Ahmad, 1989).

These clauses can be categorised into four types of laws, i.e. laws concerning the rulers, criminal law, land and crop laws and general law ( Zakaria, 2016). What can be seen from these existing laws was, although it was not perfect, these laws had taken into consideration almost all major criminal aspects that occur in Kelantan, including those involving the Ruler. This proves that the Kelantan Sultanate institution paid particular emphasis on Kelantan’s safety aspect.

During the reign of Sultan Muhammad II (1837-1886), he introduced an Islamic-based legislation system after witnessing the increased crime rates involving stealing and robbery in Kelantan in the mid-1881 ( Mohamed, 1991). This is also explained by Graham ( 1908) in his notes, “In his old age he grew very short-tempered and ruled his people with some harshness, inflicting capital punishment with frequency, and practising mutilation as a penalty for theft. His tyranny, however, secured peace to the State” (pp. 47-48).

Although the law was considered cruel, Graham ( 1908) himself admitted that these laws were able to maintain peace in Kelantan. In line with the true purpose of a sentence, apart from punishing the offender, it was also executed to give awareness to others and to create inner fear to prevent them from committing crimes.

The British action to modernise the legal system in Kelantan was not seen as a new thing in the Malay States (NNM) instead of being an anticipated matter. They saw that there was a need to restructure the judicial system in Kelantan on the grounds of reducing the crime rate. The legal system had previously felt been regarded as efficient especially in the early 20th century which saw a very drastic increase in crime rates.

Drastic changes in the Kelantan’s legal system began to be seen while Graham was first appointed as the Siamese advisor in Kelantan on 25 July 1903 ( Hasan, 1998). Although at that time, the Bangkok Agreement had yet to be signed and Kelantan has not been officially handed over to the British, the conduct of Graham decisions was based, directly or indirectly, on British policy. Even more so, his appointment was made on the consent of the British after the Anglo-Siamese Treaty was signed in 1902. Hence, it was said that changes in the legal system of Kelantan that started in 1903 were due to the British role through its representative in Kelantan.

Graham made several changes to the judicial system in Kelantan such as creating the penal enactment, public and revenue to facilitate the distribution and management of cases submitted to the court ( Salleh, 1974). When he became the advisor in Kelantan, Graham faced a slight problem with the crimes of stealing cattle which occurred in rural areas. At the time, the implementation of the law was more concentrated in the city and close to the palace while ignoring the rural areas. According to Graham in the issued report: “How to deal effectively with cattle theft is still the most difficult problem in connection with rural administration” ( Graham, 1905, p. 18).

There was difficulty dealing with the problem of cattle theft in rural areas due to administrative problems. Thus, Graham has renewed and added the number of police stations and the number of police members to ensure effectiveness in overcoming this problem ( Zakaria, 2016). As a result, in 1904-1905, as many as 17 cases of stealing cattle were recorded and as many as 26 criminals were successfully arrested by the police ( Zakaria, 2016). While, in 1908, as many as 98 cases involving the theft of cattle were recorded ( Graham, 1908). In 1904, Graham had renewed the judicial system in the state of Kelantan ( Abdullah Alwi, 1996). He established a high court led by the Sultan and Tunku Seri Perkerma Raja ( Graham, 1905). The central court presided over by Datuk Sri Paduka and Imam Abdullah ( Graham, 1905) and a small court in Kota Bahru ( Zakaria, 2016). In addition, a small court was also built in Batu Mengkebang ( Zakaria, 2016) and Pasir Puteh ( Nik Hussain, 2011) as well as a special small court which was established specifically to resolve legislation issues in the Duff Development Company in 1905 ( Nik Hussain, 2011).

Graham continued to ensure that the legal and judicial system in Kelantan was run smoothly until the Bangkok Treaty was sealed in 1909. This agreement led to the appointment of Mason ( 1911) as a British Resident in Kelantan and subsequently ended the original function of Graham’s appointment. During Mason’s era in Kelantan, he focused on improving the existing judicial system. For example, he has separated the problems involving the land from continuing to be tried in court ( Mason, 1911). All land problems not exceeding $500 were submitted or transferred to the Land Office to be settled ( Nik Hussain, 2011). Mason also rearranged cases that were to be tried at the court. Through the process of rearranging the cases, all cases in Kota Bharu were taken over by the central court. Meanwhile, heavy cases that were tried in the High Court were judged by the European judges and likewise in respect of the Appeal cases ( Graham, 1908).

The High Court is a court that would try civil and criminal offences. It also served as the court of appeal for cases tried in the Magistrate Court. The judge of the High Court consisted of the Sultan and assisted by a British advisor while the Central and District Syariah courts would try matters relating to Islamic religion and Malay customs. The Court of Justice served as a court that heard civil and criminal cases and the appeal cases from this court were tried in the First Class Magistrate Court ( Capt. Baker, 1935). The First and Second Class Magistrate Court would hear minor offences ( Clayton, 1931).

A total of 18 enactments were issued and approved in the 12th Conference of M.M.N. in 1910. In 1911, a total of four enactments were issued ( Zakaria, 2016). In 1912, under the administration of J. E. Bishop, four other enactments were issued ( Calyton, 1913) and seven other enactments were issued the following year ( Langham-Carter, 1914). The number of enactment showed the British action to try to activate the functions and roles of the legal system that they introduced in Kelantan. These were a few of the changes made by the British in order to modernise the Kelantan legal system or in other words, forming the legal system to replicate the legal system in Britain.

When we explore the impacts of modern laws, which were grounded by the legal system in England, on Kelantan, the focus and the point of view of this discussion should be seen from the situation at that time. The author does not feel that this change was totally for the benefit of Kelantan alone, but more for the purpose of strengthening British control in Kelantan. The British clearly entered into a treaty sealed with Kelantan to strengthen its power, for example in Clause II of the Anglo-Kelantan Treaty 1910. Hence, it was not surprising that the legal system was also used by the British as instruments to erode the power of the king.

Mason ( 1910) had criticised the efficiency of court management in Kelantan which was considered far behind compared to the Federated Malay States. For that reason, he had removed the Sultan from being the Chief Judge of the High Court and the Court of Appeal and subsequently appointed his advisor to fill the vacancy ( Mason, 1910). The Mason criticised the tasks played by the Sultan without first thinking about the actual cause of this problem.

We should understand that the civil legal system based on the court system was novel to the local community in Kelantan. How could a Sultan who had no western legal education background to understand the intricacies of case management in the High and Appeal Courts within a short period of time? According to Mason ( 1910), the Sultan was unable to carry out his job and the best way was to replace him with a British Advisor Assistant. This situation was actually contrary to what was agreed by the British himself.

In accordance with Clause II of the Anglo-Kelantan Treaty 1910, the Sultan had full power over matters involving Islamic customs and religious affairs. If we observe the history of Kelantan and other Malay States, placing the final judicial decision in the royal hands was in line with the State's traditions. According to Ahmad Ibrahim, all the terminologies that exist in the Malay history, such as the titah , daulat , murka , kurnia, anugerah and beta are said to contain non-written legal values ( Borham, 2002). According to him, the ruler who ruled was himself the law ( Borham, 2002). He also argued that all government matters were based on the rules and customs practices that had been set according to the law and customary practices of the ceremonial tradition set in the Malay Constitution (Harun; 2018).

The author agrees that the domestic legal affairs were part of the customs inherited for ages. It was proven during the reign of Sultan Mansur (1891-1900), where he established a custom court that tried specific criminal cases ( Nik Hussain, 2011). This situation indicated that Sultan Mansur saw criminal offences committed by the people should be judged according to the local customs. For centuries it was standard practice in all the Malay states for the king was a person responsible for deciding the punishment due to sanctity of his position in society. However, when the British arrived, the matter was not seen as part of the ceremonial customs in Kelantan to the point that they were willing to waive the role of the Sultan as the Chief judge of the High and Appeal Courts. Mason may have initially placed a British adviser to assist the Sultan, but as extensively explained earlier, the British tried to eliminate the importance of the Sultan as a source of power in Kelantan. The flawed interpretation of the ceremonial customs in Kelantan had tainted the purity of the Sultanate

The conflict between the Islamic and British legal systems

These conflicts were more focused on the roles played by these two legislative institutions. Islam was thriving in Kelantan where Islamic rule and legislation had been extensively practised since the reign of Sultan Muhammad 1 (Raja Long Senik 1800-1837), with the appointment of Islamic scholars as the Sultan's advisers in the State Administration of Kelantan ( Abidin & Hamzah, 2018). Later on, the journey of Islamic administration was continued after the succession of His Majesty with several modifications to enhance the status of Islamic administration. For example, the post of Mufti and judge was established and the establishment of the Syariah court during the reign of Sultan Muhammad II (1837-1886 M) ( Abidin & Hamzah, 2018). During the reign of Sultan Muhammad III (1886-1891), he allowed one of the palaces of his palace to be used as the Court of Appeal ( Nasohah, 2004).

The administration of a systematic legal system known as the Syariah Court was believed to have been established around 1830 ′s ( Hasan, 1998). Its purview was very broad in terms of judgement to Muslim cases in all aspects of Islamic law ( Abdullah Alwi, 1996). However, after the introduction of British legal system, which was initiated during Graham’s governance, the scope of the use of Islamic law was limited to family and religious affairs and the jurisdiction of the Syariah court were narrowed its power as an administrator of justice in Kelantan at that time.

The position of the Syariah court was placed at the final level after the First and Second Class Magistrate Court but higher than the court of Custodial and the District Court ( Hasan, 1998). The introduction of British law had restricted the jurisdiction of the Syariah court to matrimonial case and estate inheritance involving the Muslim people only ( Abdullah Alwi, 1996). Following the separation of power that occurred drastically between these two legal institutions was seen to an impact on the acceptance of Islamic law in today's global society. The polemic of Islamic law today was actually rooted since the British and not something that had recently started. As we know, the British’s relations with religious scholar were never as close as its relationship with the right-wing elite in Kelantan. Hence, it is not surprising that such events took place.

The rate of criminal offences in Kelantan in the early 20th century and its link to the British

The discussion on the impact received by Kelantan following the introduction of the modern new law system can also be seen from the total number of criminal offences recorded. Based on the available primary resources such as Kelantan State Annual Report, the pattern of change of the crime rate in Kelantan can be observed. As seen in Table 01 the effectiveness of the new legislative system was reflected by these data

Table 1 -
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Based on the data issued in the State of Kelantan's Annual Report, it is evident that generally there is an increase in the rate of crime especially in 1915. The year 1915 recorded a substantial increase in the number of crimes reported and it was the highest in the three years. If observed in further detail, the majority of crimes committed were crimes involving property such as stealing, burglary and robbery. The question that arises was the level of efficiency of new laws introduced by the British. Why the laws were considered better than the previous, yet it was not able to control the community?

After a detailed study, it is found that British policy was the main cause of why there was a drastic increase in the crime rate involving property in 1915. The main reason was closely related to the introduction of various taxes by the British. After the British acquired the state administration of Kelantan, the most important thing was given attention to by the British was the dominance of land ( Zakaria, 2016). For the British, the dominance of the land was an important platform to verify their power over the states of the colonised through the introduction of the land law introduced by them ( Salleh, 1990). Hence, in order to carry out the agenda, the British introduced the No 4/1914 notice which came into force on 1 January 1914.

In this new rule, among others, it was stated that all the landowners were required to pay taxes, whether or not they were actively working the land. These new tax rules conflicted with the previously implemented regulations. Previously, tax payment was only applicable if the land was actively operational and it generated profit. The tax chargeable is based on total revenue. If many revenues were generated, a high tax was charged; if the revenues were low, the text would be reduced ( Ghazali, 1999).

The introduction of this tax appeared to have a burden to the Kelantan people and thus affecting the source of their rice bowl. The authors observed a close link between these tax issues with the increase of crime rate in Kelantan. At the same time, the weather conditions that are sometimes uncertain had aggravated the situation. According to the Kelantan Administration Report for the Year 1915 , the planting of paddy would not yield any profit if it had to suffer natural disasters, which resulted in defective crops ( Farrer, 1916). “The crop was according to all accounts, an average one. In parts of the Pasir Puteh district it was a partial failure. I regret to have to report that the early close of 1915-1916 monsoon rains leads to the expectation that the new crop will be much below the average as far as chedongan (wet padi) is concerned” ( Farrer, 1916).

Farmers were still required to pay taxes even if their crops were hit by natural disasters. This was inherently unfair to them. With the increased pressures of life, unstable financial position, the increasing tax, they had to figure out how to continue living. This situation ultimately led to the problem of crime. This scenario was not the first time it occurred in Kelantan. It was recorded in 1881 in the writing of Abdullah Bin Muhammad, “since the year 1881, after the hunger began, crime such as theft and scams were committed by those who were starving in the State of Kelantan. They did it for the daily need for survival, if no actions were taken, they would die of hunger ( Mohamed, 1991).

People who were unable to get access to daily necessities such as food and beverages had to commit crimes due to hunger. Cheah Boon Kheng saw this situation as an example of “self-help" which existed among the rural community ( Cheah, 1988). The author did not legalize any criminal action but before we punish the criminals, we should understand what caused them to commit the crime in the first place of it. To a certain extent, it was a form of self-help. The community in Kelantan was trapped between the tax burden and living needs. Therefore, it was unfair to label them completely as criminals if their purpose were driven by this motive.

Clearly, the increase in cases such as theft cases which occurred during the British administration period showed that the changes in the economic system had an effect on the increase of crime in Kelantan ( Zakaria, 2016). In fact, the increase in crime did not just serve the purpose of self-help for the lower class, but was also a reflection of the people's protest against economic reforms verbalised indirectly by the people through crime ( Zakaria, 2016). This was proven in 1915 when a protest movement led by Tok Janggut was held to oppose the new tax system that contradicted earlier tax practices before the arrival of the British ( Zakaria, 2016).

Conclusion

The legal system introduced by the British had been this through several other phases of change in the following years, especially after the British intervention ended on 31 August 1957. The Kelantan government had to submit to the changes that affected the traditional legal system in order to improve their political survival. British used every trick possible to successfully manipulate the existing legal system according to their commands. Although no obvious positive effects can be shown in the early introduction of this modern legal system, however in the next decade some positive effect could be felt. The civil courts continued to rank higher than the Syariah court because of its wider scope of power and including the affairs of various religions. However, the Islamic legal system was seen to be more actively implemented although the execution was relatively late compared to the civil law. For example, through a role undertaken by Majlis Agama Islam Kelantan (M.A.I.K.), various Syariah offences such as prostitution and moral breakdown among Muslims has been successfully solved.

The British's role in modernizing the legal system in Kelantan cannot be denied, but at the same time, the local people themselves had to be granted credit such as a role played by the Sultan who was the chief judge of the High Court the initial stages although it was not long before it was being replaced by the British judge. The author did not find any writings that highlighted the relationship between the introduction of tax and the increase in the crime rate in Kelantan. It was sufficient for us to know that in fact, the British were partly to be blamed for the criminal problems in Kelantan. We often lauded the British for the wave of modernization that they brought to the legal system in Kelantan, but we often overlooked that it was also the same hand also caused a wide range of problems.

Acknowledgments

The author would like to sincerely thank the Ministry of Higher Education Malaysia and Universiti Sains Malaysia for funding this research through the Fundamental Research Grant Scheme (FRGS-203.PHUMANITI.6711592.

References

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Publisher

European Publisher

First Online

12.10.2020

Doi

10.15405/epsbs.2020.10.02.58

Online ISSN

2357-1330