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Customary Laws

• Definition:
– A regular pattern of social behaviour which has
been accepted by the bulk of a given society
as binding upon its members because such
behaviour has been found to be beneficial to
them …..
• Custom rooted from the ancient custom of
the people
• It is the customs which are accepted as
binding and enforceable by the court
• Customary law in Malaysia
– There is no customary law of general
application in Malaysia
• Malay customary law applies to the Malays
• Chinese customary law applies to the
Chinese
• Hindu Customary law applies to the
followers of Hinduism
• Orang Asli law applicable to orang asli in the
peninsular and
• Native customary law applicable to the Non-
Muslim indigenous people in Sabah and
Sarawak
• Malay Adat
– Comprises of Adat Perpatih and Adat
Temenggung
– Adat Perpatih applies in Negeri Sembilan
and some part of Naning in Melaka
whereas Adat Temenggung applies to
the rest of Malay peninsula
– Both adat re believe to come from the
same source i.e. Minangkabau in
Sumatera, Indonesia
• The adat are so called for the two mythical
law givers i.e.
– a) Dato’ Parapatih nan Sabatang
– b) Dato Katamanggungan
• Both were half brothers where Dato’ Parapatih ruled
over the hilly region whereas latter ruled over the
coastal regions
– Adat Perpatih is characterized as democratic
because it exists in a peasant society whereas
Adat Temenggung is characterized as
aristocratic and autocratic as their rules are
decreed by t rulers and they tend to define a
crime as and infringement of the rulers
prerogative
• The degeneration of the democra2€
matrilineal adat Perpatih into the
autocratic, patrilineal Adat
Temenggung was attributed by the
colonial scholars of adat to Hindu
influence which was alleged to have
injected notions of caste and male
dominance
• Adat Perpatih is expressed in perbilangan or kata
adat (pithy traditional sayings or maxims) passed
down from generation to generation
• Adat temenggung is a body of written rules
found in legal digest e.g. undang-undang Melaka,
Undang-undang Kerajaan Pahang and 99 laws of
Perak
• These personal laws are limited in terms of the
people to whom they apply and their field of
application is also limited
• The law are largely confined family matters:
marriage, divorce, adoption and inheritance.
• C.f with Malay adat and Orang Asli customary law
and native customary law which regulate land
rights as well
• Chinese Customary Law
– The Chinese CL in the Strait Settlements and
Malay States were the creation of the courts
– It was difficult for the court to ascertain what
the substantive principle of this law should be;
the law of China of the Ching were not
considered as suitable to regulate the affairs of
the Chinese immigrants because of the
differences in the social conditions
– The court then created a uniform body of law
applicable to all persons of Chinese race
• Hindu customary law
– The development of Hindu CL was the
extension and adaptation of the Hindu
CL in India
– The Hindu CL in Malaysia was not
necessary the same as that in India
thus, local customs were recognised by
the court provided that they were not
contrary to reasons, justice and general
public policy
– Contrary to the Chinese CL, the Hindu
CL did not impose upon the courts in the
Strait Settlements and Malay States the
problem of ascertaining its substantive
principles
– In ascertaining the principle of Hindu CL,
the court could rely on the evidence of
experts on the local customs of the
Hindu community and the authoritative
texts of the 19th century e.g. Mayne,
Jolly and Mulla and precedents from
India
• Problems posed by Customary law
– Problems of proof of legal customs
– Problems of admissibility of evidence of
oral history in proving customary laws
– Problems of conflict of laws
• Relevance of Customary law today
– Malay adat law that is still in practice is adat
perpatih
– Chinese and Hindu CL on Marriage and divorce
have diminished relevance since the coming
into force of the Law Reform (Marriage and
Divorce) Act, 1976 – the act was largely based
on the English legislation
– The act introduced a uniform law on marriage,
divorce and its ancillary matters among non-
Muslims
– It abolished polygamous marriage among the
non-Muslims, introduces a common system of
solemnization and imposed compulsory