The Straits Settlements comprised a group of British territories located in the Malay Peninsula in Southeast Asia. It initially comprised Penang, Singapore, and Malacca, and was formed in 1826. Unlike Malacca which was a thriving city with a substantial Chinese community, Penang and Singapore were relatively uninhabited when the British arrived, but Chinese immigration to both territories swiftly took place and on a large scale. For much of the nineteenth century, British policy towards the Chinese community in the Straits was one of minimal governance. They were largely left to order their affairs privately and this suited the Chinese, who tended to be aloof from the machinery of government and were also unfamiliar with English law. While there were many positive aspects of such private ordering, some negative features included the manner in which secret societies evolved and the treatment of coolies. It was only when the colonial government introduced strong measures that these negative aspects were ameliorated.
Professor and Chairman, Centre for Law and Business, National University of Singapore. The author is grateful to Professors Ivan Png and Kevin Tan, and an anonymous reviewer, for comments on an earlier draft, as well as the staff of the NUS Central Library and CJ Koh Law Library, particularly Carolyn Wee and Norijah Binte Maulod. The usual caveats apply.
1. Also known as Prince of Wales Island and founded by Captain Francis Light in 1786.
2. Founded by Sir Stamford Raffles in 1819.
3. Ceded by the Dutch under the Anglo-Dutch Treaty of 1824.
4. TURNBULL, CM, The Straits Settlements, 1826–67: Indian Presidency to Crown Colony (London: Athlone Press, 1972) at 21 [Turnbull, The Straits Settlements].
5. FREEDMAN, Maurice, “Immigrants and Associations: Chinese in Nineteenth Century Singapore” (1960) 3 Comparative Studies in Society and History 25 at 25–26 [Freedman, “Immigrants and Associations”]; see also LEE, Poh Ping, Chinese Society in Nineteenth Century Singapore (Kuala Lumpur: Oxford University Press, 1978) at 87 .
6. SANDHU, Kernial Singh, “Chinese Colonization in Melaka” in Kernial Singh SANDHU and Paul WHEATLEY, eds, Melaka: The Transformation of a Malay Capital c.1400–1980, vol 2 (Kuala Lumpur: Oxford University Press, 1983), 93 at 96 states that by the beginning of the seventeenth century there was little doubt about the existence of a permanent Chinese settlement in Malacca for by this time the Chinese were present in sufficient numbers to have a “Kampung Cina” – literally Chinese village – of their own in the city.
7. PURCELL, Victor, “Chinese Settlement in Malacca” (1947) 20 Journal of the Malayan Branch of the Royal Asiatic Society 115 at 125 .
8. PNG, Poh-Seng, “The Straits Chinese in Singapore: A Case of Local Identity and Socio-Cultural Accommodation” (1969) 10 Journal of Southeast Asian History 95 . With modernization and the widespread use of English and standard Malay in Singapore and Malaysia respectively after independence, Baba culture is in precipitous decline. The only aspect of Baba culture that is likely to survive beyond museums and heritage centres is its cuisine which, at least in Singapore, is regarded as part of the country’s distinct cuisine.
9. For example, see BUCKLEY, Charles Burton, Anecdotal History of Old Times in Singapore: From the Foundation of the Settlement under the Honourable the East India Company on February 6th, 1819 to the Transfer to the Colonial Office as Part of the Colonial Possessions of the Crown on April 1st, 1867, New edn (Singapore: Oxford University Press, 1984) at 216 .
10. SANDHU, Kernial Singh, “Chinese Colonization of Malacca: A Study in Population Change, 1500 to 1957 A.D.” (1961) 15 Journal of Tropical Geography 1 at 7 . As Singapore surpassed both Penang and Malacca, many of the Chinese in Malacca moved to Singapore, though some eventually returned to Malacca when they retired. There was not the scale of Chinese immigration into Malacca that was seen in Penang and Singapore. For this reason, Malacca does not feature as much in this article as the other two territories.
11. MILLS, LA, British Malaya, 1824–67 (Kuala Lumpur: Oxford University Press, 1966) at 204 .
12. SCHWARCZ, Steven L, “Private Ordering” (2002) 97 Northwestern University Law Review 319 at 327–329 describes this type of private ordering as rules adopted by private actors without government sanction or enforcement.
13. The territories in the Straits Settlements were occupied to provide the East India Company with a base to protect and enhance the Company’s trading interests in the Far East. When the Company decided to unite the three territories in 1826, it had hoped that this would improve the financial position of the territories. These hopes, however, were unfulfilled, leading to the downgrading of the Straits Settlements Presidency to a Residency in 1830. See Turnbull, The Straits Settlements, supra note 4 at 55.
14. It will also be seen that in some areas coercion or sharp practice was used leading to non-voluntary arrangements.
15. Dixit, Avinash K, Lawlessness and Economics: Alternative Modes of Governance (Princeton, NJ: Princeton University Press, 2004) at 4 .
16. Examples are provided by MACAULEY, Stewart, “Non-Contractual Relations in Business: A Preliminary Study” (1963) 28 Americal Sociological Review 55 (views of Wisconsin businesspeople on the relative unimportance of contracts) and ELLICKSON, Robert, Order Without Law: How Neighbors Settle Disputes (Cambridge, Mass: Harvard University Press, 1991) (how residents of rural Shasta County in California resolve a variety of disputes that arise from wayward cattle).
17. In the case of Regina v Willans (1858) 3 Kyshe 15, Maxwell R said that it was clear beyond all doubt that for the first twenty years and upwards of Penang’s history, no body of known law was in fact recognized as the law of the place. It was not even recognized as the personal law of its English inhabitants.
18. KYSHE, JWN, Cases Heard and Determined in Her Majesty’s Supreme Court of the Straits Settlements, 1808–1884, vol 1 (Singapore: Singapore and Straits Printing Office, 1885) at viii provides an example of the type of justice administered where in a case of adultery between two Chinese, the sentence on 27 April 1797 was that they should “have their heads shaved, and stand twice in the Pillory from the hour of 4 to 6 in the evening, and the man to be imprisoned, until an opportunity offers of sending him off the Island.”
19. BRADDELL, Roland St John, The Law of the Straits Settlements: A Commentary (Oxford: Oxford Unviersity Press, 1982) at 6–9 ; Kyshe, supra note 18 at vii. The judicial powers of the headmen (or Kapitans) were limited, e.g. their civil jurisdictions did not exceed ten dollars, and more serious or important cases had to be dealt with by the regular magistracy.
20. Still, the formal composition of the court was deprecated by many Recorders. For example, Sir William Norris, in remarks to the Grand Jury on 30 November 1837, said “that the constitution of this Court was essentially defective, and that it never could work so well as it should do, until freed from all connections with the Executive authorities” (Kyshe, supra note 18 at lxxxiii). In the first decades of the Straits Settlements there was friction between the executive and the judiciary and several Governors argued that the judiciary should be abolished (Turnbull, The Straits Settlements, supra note 4 at 63–66).
21. In Yeap Cheah Neo v Ong Cheng Neo (1875) LR 6 PC 381 the Privy Council, contrary to the understanding up to that time, took the view that English law applied from Penang’s founding by Captain Light and not only when the first Charter of Justice was granted.
22. Sahrip v Mitchell (1870) Leic 466.
23. Braddell, supra note 19 at 25, but see also Ee Hoon Soon v Chin Chay Sam (1889) 1 SLJ 147.
24. Rodyk v Williamson (1834) 2 Kyshe 9; Regina v Willans (1858) 3 Kyshe 16. Prior to this Chinese and Malay laws were recognized in Singapore, see Braddell, supra note 19 at 77.
25. Kyshe, supra note 18 at xxxv.
26. VAUGHN, Jonas Daniel, The Manners and Customs of the Chinese of the Straits Settlements (Kuala Lumpur and Singapore: Oxford University Press, 1971) at 92 observed that the Chinese “consider no oath binding on their consciences unless they cut a cock’s head off, or burn sacrificial paper, or let a saucer fall on the floor and shiver to pieces; each form is emblematical of the dire end the operator is sure to meet if he tells a lie.”
27. Kyshe, supra note 18 at xciii.
28. Through the Straits Settlements Act III of 1867.
29. Braddell, supra note 19 at 40.
30. TURNBULL, CM, A History of Modern Singapore, 1819–2005 (Singapore: NUS Press, 2009) at 54 [Turnbull, Singapore].
31. LEE, Edwin, Singapore: The Unexpected Nation (Singapore: ISEAS, 2008) at 9 .
32. WONG, Lin Ken, “The Trade of Singapore, 1819–1869” (1960) 33 Journal of the Malayan Branch of the Royal Asiatic Society 158 at 179–180 .
33. Turnbull, Singapore, supra note 30 at 55.
34. Kyshe, supra note 18 at lxxiii.
35. Buckley, supra note 9 at 385–386.
36. Kyshe, supra note 18.
37. Kho Chin Jan v Lim Tow (1836) 1 Kyshe 22.
38. See also FREEDMAN, Maurice, “Colonial Law and Chinese Society” (1950) 80 Journal of the Royal Anthropological Institute of Great Britain and Ireland 97 at 98 [Freedman, “Colonial Law”].
39. A large part of which involved community and kin-group mediation. See HUANG, Philip, Civil Justice in China: Representation and Practice in the Qing (Stanford: Stanford University Press, 1996) at 58–68 .
41. A list of law agents and Advocates and Attorneys from 1808 to 1884 reveals no one of Chinese origin. See Kyshe, supra note 18 at cxiii–cxx. The first Chinese person to be called to the Singapore bar was Song Ong Siang in 1893.
42. WONG, Choon San, A Gallery of Chinese Kapitans (Singapore: Ministry of Culture, 1963) at i .
43. Mills, supra note 11 at 42.
44. CHAN, Gaik Ngoh, “The Kapitan Cina System in the Straits Settlements” (1982) 25 Malaya in History 74 at 74–75 .
45. Wong CS, supra note 42 at 6.
46. Ibid at 27–28.
47. Braddell, supra note 19 at 77; PURCELL, Victor, The Chinese in Southeast Asia, 2nd edn (London: Oxford University Press, 1965) at 270 [Purcell, The Chinese].
48. While the Chinese generally respected officialdom, the vastness of China and the often weak ability of the imperial court to extend its writ significantly beyond the centre meant that ordinary Chinese organized much of their affairs within clan/lineage organizations and village communities with minimal contact with civil service officials. See MOTE, Frederick W, Imperial China: 900–1800 (Cambridge, Mass: Harvard University Press, 1999) at 349–350 , 751–757.
49. Turnbull, The Straits Settlements supra note 4 at 3–5. Chan, supra note 44 at 75–76 writes that the majority of the Chinese immigrants to the Straits Settlements came from the lowest and worst classes, and being oppressed victims at home who had been forced to migrate, their hatred and suspicion of governments was strong.
50. See also Chan, supra note 44 at 75–76.
51. PHANG, Andrew BL, The Development of Singapore Law: Historical and Socio-Legal Perspectives (Singapore: Butterworths, 1990) at 36–37 offers for consideration four possible reasons why the Kapitan system was abolished, being: the undesirability of a system of indirect rule given the attendant law and order problems; to weaken the Kapitans’ power; that the Kapitan system continued informally in any event; and finally, there may have been a desire for a uniform system of law and governance to be instituted. It is suggested here that the formal cessation of the Kapitan system was the logical constitutional consequence of the Charters of Justice vesting judicial power on a formal basis. It would have been difficult for the Europeans agitating India for a proper legal system to be instituted to call simultaneously for a parallel native system to be preserved as this would have raised issues of legitimacy and complicated the process.
52. Freedman, “Immigrants and Associations”, supra note 5 at 34.
53. For example, in Singapore these were Tan Tock Seng, Tan Kim Seng, and Tan Kim Ching (see Wong CS, supra note 42 at 30–31), all of whom were from the Hokkien community. Traditionally, Chinese surnames appear at the beginning and “Tan” is a common surname for those whose forefathers came from Fukien province. In Malacca, the title of Kapitan was applied to one Sit Mun Chew as a courtesy (see ibid at 7–8).
54. TROCKI, Carl A, “Political Structures in the Nineteenth and Twentieth Centuries” in Nicholas TARLING, ed, The Cambridge History of Southeast Asia: The Nineteenth and Twentieth Centuries, vol 2 (Cambridge, New York, and Melbourne: Cambridge University Press, 1992), 79 at 89 .
55. Though Chan, supra note 44 at 76 states that in Penang more than one Kapitan Cina was appointed.
56. YEN, Ching-hwang, A Social History of the Chinese in Singapore and Malaya 1800–1911 (Singapore: Oxford University Press, 1986) at 42–43 , 124–125 [Yen, A Social History]. See also MAK, Lau Fong, The Sociology of Secret Societies: A Study of Chinese Secret Societies in Singapore and Peninsular Malaysia (Kuala Lumpur and New York: Oxford University Press, 1981) at 26–29 .
57. Yen, A Social History, supra note 56 at 4.
58. Which could be exacerbated by natural disasters.
59. HSU, Immanuel Y, The Rise of Modern China, 6th edn (New York: Oxford University Press, 2000) at 222 .
60. Ibid at 221–232.
61. Purcell, The Chinese, supra note 47 at 254.
62. See Yen, A Social History, supra note 56 at 4, who cites an example in Malaya of a Tan Tek Heng and a Sim Mah Leng, both employees of Chop Seng Hong in Klang, who embezzled a sum of $557 from the shop when the owner visited Penang in 1900. Both Tan and Sim absconded to Johore. This author understands from family members that his great-grandfather, while away on vacation, was the victim of theft by his Hainanese cook, which ended up impoverishing him.
64. TAN, Chee Beng, Chinese Overseas: Comparative Cultural Issues (Hong Kong: Hong Kong University Press, 2004) at 187 .
65. YEN, Ching-hwang, The Ethnic Chinese in East and Southeast Asia: Business, Culture and Politics (Singapore: Times Academic Press, 2002) at 67–69 [Yen, Business, Culture and Politics].
66. Yen, A Social History, supra note 56 at 150.
67. As a general rule, a breach of contract gives rise to a compensatory monetary award except in exceptional circumstances, see TREITEL, Guenter, The Law of Contract, 14th edn by Edwin PEEL (London: Sweet & Maxwell, 2015) at 1106 .
68. Yen, Business, Culture and Politics, supra note 65 at 69.
69. JOMO, Kwame Sundaram, “Chinese Capitalism in Southeast Asia” in Kwame Sundaram JOMO and Brian C FOLK, eds, Ethnic Business: Chinese Capitalism in Southeast Asia (Abingdon and New York: Routledge, 2003), 10 at 17 .
70. Yen, Business, Culture and Politics, supra note 65 at 69.
71. Wong LK, supra note 32 at 111.
72. Turnbull, Singapore, supra note 30 at 97.
73. TROCKI, Carl A, “Singapore as a Nineteenth Century Migration Node” in Donna R GABACCIA and Dirk HOERDER, eds, Connecting Seas and Connected Ocean Rims: Indian, Atlantic, and Pacific Oceans and China Seas Migrations from the 1830s to the 1930s (Leiden and Boston: Brill, 2011), 198 at 218 .
74. Yen, A Social History, supra note 56 at 5–7.
75. BLYTHE, Wilfred L, “Historical Sketch of Chinese Labour in Malaya” (1947) 20 Journal of the Malayan Branch of the Royal Asiatic Society 64 at 69–71 [Blythe, “Historical Sketch”].
76. Wong LK, supra note 32 at 113 states that the system “had a colouring of the slave trade, and was bound to have abuses.”
77. See also TROCKI, Carl A, “Opium and the Beginnings of Chinese Capitalism in Southeast Asia” (2002) 33 Journal of Southeast Asian Studies 297 at 300 .
78. Ibid at 298.
79. WEN, Cheng U, “Opium in the Straits Settlements, 1867–1910” (1961) 2 Journal of Southeast Asian History 52 .
80. In most societies such a state of affairs would not long be tolerated because the social costs of widespread opium or other narcotic addiction would have to be borne by society as a whole and it is likely that such costs would outweigh any revenue that could be collected from the sale of the narcotic. In the Straits Settlements, this was not the case and in fact powerful elements benefited from the opium trade and therefore saw no benefit in curtailing its excesses. The colonial government assumed almost no responsibility for social services because of a lack of revenue, the rich Chinese merchants benefited from it, and the European merchants were only too happy to allow it to take place since it meant a more favourable tax regime for them.
81. Lee PP, supra note 5 at 30.
82. Turnbull, Singapore, supra note 30 at 97.
83. NG, Siew Yoong, “The Chinese Protectorate in Singapore, 1877–1900” (1961) 2 Journal of Southeast Asian History 76 at 79 .
84. See “Chinese Immigrants Ordinance 1877 is Passed” (23 March 1877), online: HistorySG <http://eresources.nlb.gov.sg/history/events/dbfed061-8451-42c9-8a5b-5a6c72df1a2c>.
85. E Lee, supra note 31 at 30.
86. Lee PP, supra note 5 at 85–87.
87. Turnbull, Singapore, supra note 30 at 101.
88. Koh Boo An v Tioh Jee (1883) 3 Kyshe 164.
89. Blythe, “Historical Sketch”, supra note 75 at 81–82; Ng, supra note 83 at 85–86.
90. Ng, supra note 83.
91. For example, the surnames “Tan” and “Chan” share the same Chinese character and are therefore similar surnames but the spelling in English is very different because they are pronounced differently in their respective dialects.
92. Freedman, “Immigrants and Associations”, supra note 5 at 43.
93. In addition to speech and kinship associations, other organizations such as business guilds and businessmen’s clubs also existed. It is outside the scope of this article to discuss all such organizations. What should be noted is that many business guilds and businessmen’s clubs had strong dialect affiliations (see Yen, Business, Culture and Politics, supra note 65 at 60–77), and for the purposes of this article can be regarded as a manifestation of speech and on occasion kinship associations.
94. Yen, A Social History, supra note 56 at 37–39.
95. Thus a dialect organization often revolved around a Chinese temple, e.g. an unofficial Kapitan in Malacca was the President of the Cheng Hoon Temple. See also Freedman, “Immigrants and Associations”, supra note 5 at 39.
96. Yen, A Social History, supra note 56 at 45–48.
97. When there were disturbances involving members of the Chinese community, the colonial government would often appeal to the various leaders of the community to assist in restoring order.
98. Yen, A Social History, supra note 56 at 48, though this greater reliance on the legal system only appeared to begin to occur from around the last quarter of the nineteenth century when more cases involving Chinese plaintiffs were reported in Kyshe.
99. Freedman, “Immigrants and Associations”, supra note 5 at 40–41.
100. Yen, A Social History, supra note 56 at 85–87, 91–93.
101. Ibid at 81–82.
102. The author contacted some dialect and kinship organizations to explore the possibility of obtaining access to the early records of these organizations relating to civil disputes among its members. The exercise was fruitless. Some organizations did not respond and those that did said there were no records either because the leaders at the time were illiterate or the documents (if they existed) “may have been destroyed or burnt during the Japanese occupation as was done to most other written materials to avoid falling into the hands of the Japanese Military” (Letter to the author from a kinship association in Penang (6 August 2015)).
103. Traditionally, the Chinese are afraid of dying alone without any funeral rites being performed as this may hinder their passage into the next life. Vaughn, supra note 26 at 30–33 describes in some detail the elaborate nature of a Chinese burial. He also observed that while the poor are buried with very little pomp, one part of the ceremony is never neglected, namely the strewing of the road with paper money which the deceased is supposed to require on his passage from this world to the next. A bundle of paper money is also nailed on the coffin.
104. In the Goods of Lao Leong An  1 SSLR 1.
105. In the Matter of the Estate of Choo Eng Choon, Deceased (1911) 12 SSLR 120.
106. LEONG, Wai Kum, Family Law in Singapore: Cases and Commentary on the Women’s Charter and Family Law (Singapore: Malayan Law Journal, 1990) at 123 ; Freedman, “Colonial Law”, supra note 38 at 100–103.
107. Choa Choon Neoh v Spottiswoode (1869) 1 Kyshe 216 [Choa Choon Neoh].
108. Wong CS, supra note 42 at 5.
109. Choa Choon Neoh, supra note 107 at 221–222.
110. As mentioned above, while trade associations existed they tended to be dominated by a particular group and therefore are not treated separately in this article.
111. The dialect groups referred to here would be the Cantonese and the Hakkas.
112. Vaughn, supra note 26 at 14–15. For a more comprehensive breakdown of occupations according to speech groups, see Mak, supra note 56 at 41–43.
113. Ibid at 43–46.
114. With earlier settlers having a greater choice of lucrative occupations to select from.
115. Yen, A Social History, supra note 56 at 121 on the other hand states that there is no evidence to suggest the use of secret society power for such purpose.
116. Ibid at 118–119.
117. As Freedman, “Immigrants and Associations”, supra note 5 at 41 points out, while territorial and surname associations were not generally intended to serve commercial aims, they did have such an impact by virtue of the economic specialization of dialect groups.
118. For instance, CHENG, Lim-Keak, Social Change and the Chinese in Singapore: A Socio-Economic Geography with Special Reference to Bang Structure (Singapore: Singapore University Press, 1985) at 89–90 refers to the Singapore Cycle and Motor Traders’ Association which was dominated by the Henghua dialect group. One of its functions was the inducement of its members to take over any member’s firm that was to be wound up.
119. LEE, Sheng-Yi, The Monetary and Banking Development of Singapore and Malaysia, 3rd edn (Singapore: Singapore University Press, 1990) at 36–37 .
120. BROWN, Rajeswary Ampalavanar, The Chinese Business Enterprise: Critical Perspectives on Business and Management, vol II (New York: Routledge, 1996) at 136 .
121. Cheng, supra note 118 at 105.
122. Ibid at 106.
123. For the pervasiveness of self-help enforcement, see Ellickson, supra note 16 at 143–144.
124. See also Cheng, supra note118 at 106 who states that information about a breach of contract would spread quickly through the close-knit Chinese community and bring immediate business sanctions and moral condemnation.
125. Such arrangements based on trust are not unique to the Chinese. See GREIF, Avner, Institutions and the Path to the Modern Economy: Lessons from Medieval Trade (Cambridge and New York: Cambridge University Press, 2006) at 59 (writing about the Maghribi Traders’ Coalition).
126. See also LANDA, Janet T, “A Theory of The Ethnically Homogenous Middleman Group: An Institutional Alternative to Contract Law” (1981) 10 Journal of Legal Studies 349 , who discusses the marketing of smallholders’ rubber in Singapore and West Malaysia which was dominated by a middleman group with a tightly knit kinship structure consisting of four clans from the Hokkien ethnic group. This close knit business relationship led to efficiencies such as economizing on information costs.
127. AVIRAM, Amitai, “A Paradox of Spontaneous Formation: The Evolution of Private Legal Systems” (2004) 22 Yale Law and Policy Review 1 at 20–23 .
128. Another example was the merchant guilds in medieval Europe that served to enforce merchant boycotts. Such guilds were at their core administrative bodies that supervised the overseas operation of merchant residents of a specific territorial area and held certain regulatory powers within that area. The guilds facilitated coordinated action by the merchant community and in addition, many towns were controlled by the mercantile elite who organized a merchant guild to advance their interests. See GREIF, Avner, MILGROM, Paul, and WEINGAST, Barry R, “Coordination, Commitment, and Enforcement: The Case of the Merchant Guild” (1994) 102 Journal of Political Economy 745 at 755 . Aviram, supra note 127 at 56 argues that the guilds built on the existing social network in a given town and that their enforcement powers came both from the town’s social network and its governance institutions.
129. WARREN, Mark R, THOMPSON, J Phillip, and SAEGERT, Susan, “The Role of Social Capital in Combating Poverty” in Susan SAEGERT, J Phillip THOMPSON, and Mark R WARREN, eds, Social Capital and Poor Communities (New York: Russell Sage Foundation, 2001), 1 ; see also PORTES, Alejandro, “Social Capital: Its Origins and Applications in Modern Sociology” (1998) 24 Annual Review of Sociology 1 , writing about negative social capital.
130. Such Chinese networks in Southeast Asia were already in existence before the nineteenth century. See KWEE, Hui Kian, “The Rise of Chinese Commercial Dominance in Early Modern Southeast Asia” in LIN Yu-ju and Madeleine ZELIN, eds, Merchant Communities in Asia, 1600–1980 (London: Pickering & Chatto, 2015), 79 at 86–87 .
131. For a contemporary example of private ordering among Chinese businesspeople where there is weak rule of law, see CHEN, Weitseng, “Arbitrage for Property Rights: How Foreign Investors Create Substitutes for Property Institutions in China” (2015) 24 Washington International Law Journal 47 .
132. Macauley, supra note 16 at 63.
133. Ibid at 64.
134. BLYTHE, Wilfred L, The Impact of Chinese Secret Societies in Malaya: A Historical Study (London et al.: Oxford University Press, 1969) at 1 [Blythe, Secret Societies].
135. As Freedman, “Immigrants and Associations”, supra note 5 at 29 points out, the reliance by the Singapore authorities on rich Chinese produced a structure of control that was likely to be political as well as economic and a major structural feature of the Chinese in the nineteenth century was the secret society.
136. Blythe, Secret Societies, supra note 134 at 1–2; see also Mak, supra note 56 at 43–46; Freedman, “Immigrants and Associations”, supra note 5 at 37 (writing that there “may have been occupational and commercial homogeneity in society membership, societies sometimes grouping men according to their economic interests”). But see Yen, A Social History, supra note 56 at 117, who says that while the power of secret societies was used to consolidate certain lucrative businesses such as mining, opium and spirit farms, gambling, and prostitution, it would be an exaggeration to claim that secret societies were mainly responsible for the monopolization of occupations.
137. Competition Act 2004 (Cap 50B, 2006 Rev Ed Sing). The Competition Act came into force on 1 September 2005. The Competition Commission of Singapore has, since its inception, issued several Infringement Decisions relating to cartel activities.
138. This is of course highly speculative and another contributory factor may have been the large role played by state owned enterprises in the Singapore economy, as to which see TAN, Cheng-Han, PUCHNIAK, Dan W, and VAROTTIL, Umakanth, “State Owned Enterprises in Singapore: Historical Insights into a Potential Model for Reform” (2015), online: SSRN <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2580422>.
139. The US-Singapore Free Trade Agreement came into force on 1 January 2004. See “Singapore Signs Free Trade Agreement with the United States” (6 May 2003), online: HistorySG <http://eresources.nlb.gov.sg/history/events/9f328cfb-06c7-464b-b008-ee6b46e0497d>.
140. Hsu, supra note 59 at 127–128.
141. Vaughn, supra note 26 at 95; COMBER, Leon F, Chinese Secret Societies in Malaya: A Survey of the Triad Society from 1800 to 1900 (Locust Valley, NY: JJ Augustin, 1959) at 1 .
142. HILL, AH, “The Hikayat Abdullah: An Annotated Translation” (1955) 28(3) Journal of the Malayan Branch of the Royal Asiatic Society 1 at c 21.
143. Comber, supra note 141 at 9–11.
144. An excellent overview of the problem of secret societies in Singapore can be found in Phang, supra note 51 at c 4, Part III.
145. Freedman, “Immigrants and Associations”, supra note 5 at 45–46.
146. Chan, supra note 44 at 74. This may have initially accounted for the Qing government not taking steps to establish contact with the overseas Chinese, but this policy changed in 1876 when consulates were established in the Nanyang. The consulate in Singapore was established in 1877 and is credited with changing the attitude of the Singapore Chinese towards Peking. See Turnbull, Singapore, supra note 30 at 119–120.
147. MILNE, W, “Some Account of a Secret Association in China, Entitled the Triad Society” (1826) 1 Transactions of the Royal Asiatic Society of Great Britain and Ireland 240 at 241 refers to a secret society in Malacca that was already in existence in 1818 and most likely even before such time. Mak, supra note 56 at 21 takes this as an indication that secret societies could not have arisen because of political deprivation. However, since Malacca was under various rulers prior to British rule, and the Chinese had permanent settlements there since at least the beginning of the seventeenth century during which time secret societies could have emerged, the existence of secret societies in Malacca prior to 1826 does not disprove Freedman’s thesis. Mak, ibid at 38 states that one of the leaders of the refugees who migrated to Malacca after the fall of the Koxinga regime in Taiwan in 1683, and who was appointed a Chinese Kapitan by the Dutch around 1710, had been a Triad member in China. This makes it more likely that the existence of the Triad in Malacca had little to do with any assertion of political control over the Chinese by the British (or the Dutch) but was an incident of the people that settled there.
148. Freedman, “Immigrants and Associations”, supra note 5 at 35; see also Buckley, supra note 9 at 366.
149. Yen, A Social History, supra note 56 at 124–125; Mak, supra note 56 at 36.
150. See also DEBERNARDI, Jean Elizabeth, Rites of Belonging: Memory, Modernity, and Identity in a Malaysian Chinese Community (Stanford: Stanford University Press, 2004) at 26 ; Comber, supra note 135 at 65.
151. See also TURNBULL, CM, “Penang’s Changing Role in the Straits Settlements, 1826–1946” in YEOH Seng Guan et al., eds, Penang and Its Region: The Story of an Asian Entrepot (Singapore: NUS Press, 2009), 30 at 35 ; Chan, supra note 44 at 74–75.
152. Yen, A Social History, supra note 56 at 124.
153. Lee PP, supra note 5 at 51–54.
154. Mote, supra note 48 at 390–391 nevertheless also points out that as early as the Song Dynasty, while merchants had low status in ideal terms, the actual social status of rich merchants was high. He further states that by the Ming Dynasty rich merchants occupied the social space between the established elite and the next strata of economically better-off commoners. Ibid at 765.
155. See also Freedman, “Immigrants and Associations”, supra note 5 at 47. Mak, supra note 56 at 96–98 lists some indicators of close links between community leaders and the societies.
156. Not unlike the Italian mafia, one aspect of Chinese secret societies was that they represented an economic enterprise that produced, promoted, and sold private protection (see GAMBETTA, Diego, The Sicilian Mafia: The Business of Private Protection (Cambridge, Mass: Harvard University Press, 1993); and see also Blythe, Secret Societies, supra note 134 at 1), which was a valuable service given that the formal institutions of law and order were largely irrelevant to most Chinese.
157. For example, the capitalists who owned the tin mines on the Malay Peninsula were secret society headmen, or worked with such headman, who used secret society power to protect their commercial interests and exploit the Chinese workers. Many became wealthy and eventually moved back to the territories in the Straits Settlements where they transformed themselves into business tycoons. See EVERS, Hans-Dieter and KORFF, Ruediger, Southeast Asian Urbanism: The Meaning and Power of Social Space (Münster: Lit Verlage; New York: St. Martin’s Press, 2000) at 48–50 .
158. See also Freedman, “Immigrants and Associations”, supra note 5 at 38; YONG, Ching Fatt, Chinese Leadership and Power in Colonial Singapore (Singapore: Times Academic Press, 1992) at 11 ; Mak, supra note 56 at 106–107.
159. Vaughn, supra note 26 at 98–99.
160. They also disposed of “[t]housands of complaints both civil and criminal” which the formal courts would not have been able to cope with. Ibid at 111. See also Yen, supra note 56 at 115.
161. Cited in Lee PP, supra note 5 at 48.
162. Some groups ostensibly established as dialect or clan associations may have been secret societies in essence (Comber, supra note 141 at 269; Blythe, Secret Societies, supra note 134 at 3). In addition, certain societies came to be composed principally of members from a particular speech group or included non-Chinese (Vaughn, supra note 26 at 103), and place of residence or type of employment was at times the basis for eligibility for membership, or there might have been a combination of these factors (Blythe, Secret Societies, supra note 134 at 1). At the same time, dialect and clan rivalries rather than secret society affiliation were also the cause of some of the violence between Chinese groups causing members of secret societies to fight against their brethren from a different speech group (Vaughn, supra note 26 at 99). Thus, a contemporary observer has said that some of these groups were “quite as dangerous as the triad societies” and had “from time to time disturbed the peace…and [were] likely at any time on the slightest provocation to do the same” (Vaughn, supra note 26 at 114). Purcell, The Chinese, supra note 47 at 273 also states that “it is likely that the district and clan associations were as much involved in the early disturbances as the huis” (i.e. secret societies).
163. KHOO, Su Nin, Streets of George Town Penang: An Illustrated Guide to Penang’s City Streets & Historic Attractions (Penang: Areca Books, 2007) at 59 .
164. Blythe, Secret Societies, supra note 134 at 131.
165. See Leong San Tong Khoo Kongsi, “The Origin of Cannon Street”, online: Leong San Tong Khoo Kongsi <http://www.khookongsi.com.my/history/the-origin-of-cannon-street/>.
166. Buckley, supra note 9 at 386; Hill, supra note 142 at c 21.
167. TROCKI, Carl A, Opium and Empire: Chinese Society in Colonial Singapore, 1800–1910 (Ithaca, NY: Cornell University Press, 1990) argues that the opium trade was at the heart of the disputes within the Chinese community.
168. For example, at a public meeting in Singapore held on 10 February 1843, resolutions that were adopted included one calling for a law to be passed to suppress secret societies. See Buckley, supra note 9 at 386. Nothing was done till late in the nineteenth century.
169. Through the Societies Ordinance 1889 which came into force on 1 January 1890.
170. Yen, A Social History, supra note 56 at 127–128; Mak, supra note 56 at 106.
171. Blythe, Secret Societies, supra note 134 at 243; Comber, supra note 141 at 270.
172. The term is used here to denote “a system of rules, beliefs, norms, and organizations that together generate a regularity of (social) behavior”. Greif, supra note 125 at 30.
173. CHANG, Ha-Joon, “The Market, the State and Institutions in Economic Development” in CHANG Ha-Joon, ed, Rethinking Developmental Economics (London: Anthem Press, 2003), 41 at 52–54 ; Greif, supra note 125.
174. Solidarity and trust among members of a group can have both positive and negative effects. Mafia families, prostitution and gambling rings, and youth gangs offer many examples of how embeddedness in social structures can be turned to less than socially desirable ends. Portes, supra note 129 at 18. The existence of strong social groups can lead to corruption. See MAURO, Paolo, “Corruption and Growth” (1995) 110 The Quarterly Journal of Economics 681 .
175. SENED, Itai, The Political Institution of Private Property (Cambridge: Cambridge University Press, 1997) at 72 .
176. SENED, Itai, “The Emergence of Individual Rights” in Jack KNIGHT and Itai SENED, eds, Explaining Social Institutions (Ann Arbor: University of Michigan Press, 1995), 161 at 162.
177. Mak, supra note 56 at 93.
178. Today, Malaysia and Singapore have mature legal systems.
179. See also Landa, supra note 126 at 362. Analogously, as the state system evolved, the need for merchant guilds to secure merchants’ rights declined. See Greif, Milgrom, and Weingast, supra note 128 at 773.
* Professor and Chairman, Centre for Law and Business, National University of Singapore. The author is grateful to Professors Ivan Png and Kevin Tan, and an anonymous reviewer, for comments on an earlier draft, as well as the staff of the NUS Central Library and CJ Koh Law Library, particularly Carolyn Wee and Norijah Binte Maulod. The usual caveats apply.
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