When the British departed from their colonial territories, they left behind more than railways, courts, and administrative buildings. They left a legacy — a meticulously structured legal system refined through centuries of political struggle, social reform, and the tempering hand of jurisprudential thought. It was a system born from the soil of their own historical experience, shaped by philosophers and reformers, by judges who wrestled with conscience and authority.
In the colonies, however, this system was transplanted, not grown. It was imposed, not inherited. And in that act of transplantation, something crucial was lost: the organic connection between a people’s traditions and the moral foundations of their law.
The Challenge of Inherited Justice
In the Far East — from the Malay Peninsula to the archipelagos and across the vast continent of Asia — societies were accustomed to absolute power. Historically, the ruler was often seen not merely as a political leader, but as a divinely sanctioned figure: the Emperor, the Sultan, the Heavenly Son, or the Mandate Bearer. Obedience was not merely civic duty; it was moral righteousness.
The colonial powers introduced a new order — one based on the rule of law, checks and balances, and separation of powers. These were radical concepts to populations who had, for centuries, viewed authority as sacred and unquestionable. When independence came, the legal structures remained, but the spirit that animated them did not always survive the transition.
What resulted was a system of law that looked British, sounded British, and was administered in British-derived courts — but often operated in a very different cultural and moral context.
The Internalised Accountability
In societies where questioning authority is seen as disrespect, accountability becomes an alien concept. The legal system, however well designed on paper, depends not only on statutes and procedures but also on the moral courage of its custodians — judges, lawyers, and law enforcers.
When enforcement agencies, for instance, are given powers intended to protect public interests but begin to exercise those powers selectively, or to “look the other way,” the system decays from within. The maxim nemo dat quod non habet — “no one can give what he does not have” — suddenly takes on an ethical dimension.
An officer who has no moral right to permit wrongdoing cannot, by any stretch of reasoning, grant such permission to others. Yet, corruption does precisely this: it transfers what was never his to give — the protection and trust of the law — into the hands of those who subvert it.
When a local authority official allows a public place to be used for private profit, or when enforcement turns a blind eye to illegality for convenience or gain, we are not merely witnessing administrative failure. We are witnessing the betrayal of public trust. The officer, bound by oath to serve the public, has acted ultra vires — beyond the authority conferred upon him — and has, in essence, “given what he does not own.”
The Consequences of Legal Alienation
The public, witnessing such contradictions, grows confused. The law, once a symbol of justice, begins to look like an instrument of convenience — malleable, uncertain, and negotiable. People lose the moral instinct to distinguish right from wrong within the boundaries of law. They begin to say, “This is a grey area,” even when the wrongdoing is obvious.
Only when they themselves become victims do they rediscover the urgency for justice. By then, the damage is systemic. A society that doubts its own justice system breeds cynicism faster than reform. It is no coincidence that in many post-colonial societies, faith in law enforcement is often replaced by fatalism — a quiet acceptance that power, not justice, decides outcomes.
The Spirit of the Maxim and the Lesson of Integrity
The old Latin maxim nemo dat quod non habet was originally confined to property law: one cannot transfer ownership of what one does not own. Yet its moral reach is far broader. It is a reminder that authority, like ownership, carries moral boundaries. One cannot confer legitimacy upon wrongdoing, nor can one derive righteousness from corruption.
In religious and philosophical traditions across the East, the principle is echoed in various forms: “What you owe, you must repay”; “The cause will find its effect”; “The seed sown shall bear fruit.” All point to the same moral law: power is borrowed, never owned. When it is abused, something sacred is broken — not just in governance, but in the collective soul of the people. These are not merely moral sayings but universal laws of balance and consequence.
Indeed, when one pretends to give what one does not have — whether it be property, authority, or right — one must first take it from its true owner. That act of taking, whether done through deceit, neglect, or misuse of position, is in essence theft.
This is the moral heart of both nemo dat and ultra vires: no person, no officer, no institution may confer what was never lawfully theirs to give. To do so is to appropriate what belongs to the public, and to disguise corruption as governance.
When an officer abuses his authority, the harm he causes reverberates far beyond his own office. It undermines the very legitimacy of the institution he represents. In this sense, corruption is not merely a crime against law; it is a spiritual debt — a moral liability that must be repaid, whether through accountability, exposure, or the natural law of retribution.
A society that tolerates such impropriety, remaining silent so long as it benefits from it, sows the seeds of its own undoing. When that impropriety grows unchecked, it becomes a consuming fire that spares no one.
The maxim, the doctrine of ultra vires, and all the great principles of public law are, at their core, nothing more — and nothing less — than manifestations of honesty and integrity.
Reform and Rediscovery
Reforming such a system is never easy. Structural changes — new laws, better procedures, oversight commissions — can only go so far. What is needed is a cultural realignment: a rediscovery of integrity as the soul of governance.
Public officers must be reminded that their authority is borrowed, not owned. Like trustees of an estate, their duty is to administer for the benefit of the people, not themselves. The estate, in this case, is the public trust. To misuse it is akin to an administrator distributing assets to those outside the rightful beneficiaries — a moral and legal breach.
For citizens, too, reform begins in awareness. The people must understand that justice systems are not foreign relics to be endured, but living mechanisms that require participation, vigilance, and demand for fairness. Silence and submission — virtues under absolute rule — become vices in a democracy.
Towards a Reconciliation of Law and Culture
The reconciliation of inherited legal systems with local traditions is one of the great unfinished projects of post-colonial governance. True justice cannot exist as an imported institution; it must become a lived value.
For Malaysia, this means embracing the form of British-derived law while restoring the moral essence of our own traditions — compassion, righteousness, balance, and the sense that authority must serve, not rule.
When these values are infused back into the legal culture, the law ceases to be a foreign imposition. It becomes a mirror reflecting the nation’s soul.
Conclusion
The legacy of colonial law is both a gift and a challenge. It gave us structure, but not spirit. It established institutions, but not necessarily integrity. The task of our generation is not to dismantle it, but to enliven it — to ensure that justice is not merely administered, but believed in.
The maxim nemo dat quod non habet reminds us that no one — not even a government officer — can give away what is not his. Authority belongs to the people; trust belongs to the office; and justice belongs to the truth.
To betray any of these is to incur a debt that no time or excuse can erase.
For further information, please contact:
Chwa Ling Kiat, Azmi & Associates
chwalingkiat@azmilaw.com
