Customary Laws Of Malaysia At present, there is no customary law common to all the communities.

Adat is applicable to Malays, native law and customs ( also called adat ) apply to the natives of Sabah and Sarawak, and Chinese and Hindu customary laws have limited application to their respective communities. Until recently, little was written about aboriginal customary laws. The following discussions focus on Malay and Native adat, where there is greatest current application of customary law.

Malay Adat Malay adat consists of : Ancient Malay customary law Hindu Law Islamic law or syariah law

Ahmad Ibrahim divides Malay customary law into adat perpatih, described as a democratic matriarchal law, and adat temenggung, an autocratic patriarchial law. Not all writers agree with the distinction, but that classification has been used primarily to distinguish between the matrilineal form of social organization and others based on a bilateral form of social organization. Although both originated from tribal organizations in the past, it is in adat perpatih that the remnants of the tribal structure are clearly present. The system of adat perpatih is still practiced in the state of Negeri Sembilan and parts of Melaka, especially Naning. The rest the states in Peninsular Malaysia represent the Islamic-cum-temenggung system of customary law.

Adat Temenggung

The term Adat temenggung does not refer to a recognizable, or certain, body of law. However, since the advent of Islam in Malaya from about the fifteenth century, adat temenggung has identified itself with the Islamic socio-political system. As Islam had influenced much of the marriage and divorce, and succession laws, it has been said that the amalgamation of Islam and the adat temneggung is so complete that it is well nigh impossible to separate one from the other. There are numerous digests of adat temenggung. These include a digest of law compiled by the Sultan of Pahang; a digests of Kedah laws; the ninety-nine laws of Perak; a digests of Selangor laws; and the Melaka digests which contains maritime rules. The undang-undang Melaka (Melaka Laws), though entitled Risalat Hukum Kanun (A Tract on Customary Law), is a digest ³grafting the Islamic Law of the new Sultanate {of Malacca} on to the earlier law of a Hindu Court´

and the Tuanku Besar of Tampin (Article XIV). to a limited extent. it covers matters concerning the state. who must hail from a recognized hereditary clan called perut. of Johol. The undang elect the Yang di-Pertuan Besar. consisting of the Yang di-Pertuan Besar and five ruling chiefs. who is elected in a rotational syatem by the various buapak or members of the clan. luak(district). which includes succession in title or lineage and the election of traditional chiefs. These undang are elected in accordance with the customs of their respective territories. a digest of customary law from Sungei Ujong. as opposed to adat perpatih. whose role is ³to advise on questions relating to customs´ . Adat determines affairs of state with respect to life in the kampong(village). Elements of adat perpatih in written form are found in digests of customary law. reference to Malay adat tends to be a reference to adat perpatih rather than to adat temenggung. and of Rembau. More importantly. There are four undang who each head a luak. in turn. of Jelebu. Adat Perpatih Since it is the adat perpatih society that follows its adat scrupulously. Election of traditional chiefs Adat perpatih envisages a hereditary constitutional monarchy within a matrilineal organization. criminal law and restitution. and is a son identifiable through the maternal lineage. As a socio-political unit. As a traditional territorial unit.Apart from Islam. Jelebu. and nagari or negeri(state). a Minangkabau legal digests from Perak. Adat perpatih covers matters concerning matrimonial law and property and. and Rembau. namely the Undang of Sungai Ujong. Hindu Law had a great impact on adat temenggungin the area of criminal law. and another from Kuala Pilah. the clan is ruled by lembaga. who will liaise closely with the undang on matters of adat. Article XXXII of the State Constitution recognizes the continued application of ancient customs of the state so long as they are not inconsistent with the constitution. mukim(parish). The clans make up the luak and each luak is controlled by an undang. Part of the ancient customs is the concept of composite rulership. infusing into it the elements of retribution and punishment. The buapak is. Johol. for example. the Undang of Sungai Ujong. elected by the anak buah (kin). They are members of a council known as the Dewan Keadilan Undang-Undang. the luak has four clans. These digests contain tribal sayings that have been handed down from generation to generation as much of the adat is contained in oral traditions. These democratic-like elective system in the Negeri Sembilan adat organization is preserved by Article 71(1) and (2) of the Federal Constitution and Article XXXII of the State Constitution of Negeri Sembilan. which aims at restitution rather that retribution.

which is the highest adat constitutional body provided for under Article XVI of the Negeri Sembilan State Constitution. In any matter relating to Malay adat in Negeri Sembilan.P (as he then was)said at pp. it takes cognizance of such matters as may be referred to it and gives decisions in the form of ³advice´ in the same way as the Privy Council gives ³advice´ to His Majesty the Yang di-Pertuan Agong on the matters of appeals from this country. This court. The questions of succession of the fifteenth Undang of Jelebu arose in the case of Dato Menteri Othman bin Baginda & Anor v Dato Ombi Syed Alwi bin Syed Idrus [1981] 1 MLJ 29. the state or the Dewan Keadilan has total jurisdiction. then they may look outside the immediate family to their relations. The court was asked to declare the election ultra vires that adat and the Constitution of the luak of Jelebu. It was drafted in broad and ample style which lays down principles of width and generality pertaining inter alia to Malay custom. and that he lacked the proper characteristics and a qualification to become Undang of Jelebu. The . In that context the Dewan does not make suggestions. Raja Azlan Ag. unequivocally and unanimously the constitutional position of the ruler in matters of succession including the election of the undang and to hold that it is non-justiciable. the sons of the brothers. the paternal uncles. to give effect to the decision. This includes matters relating to the election or succession or rulers of ruling chiefs. of sound mind and a Muslim who is lawfully begotten descendent in the male line of Raja Radin ibni Raja Lenggang´. The court would be usurping the powers of Dewan if it intervened. The Federal Court declined to exercise its jurisdiction. there is no suitable and competent person among the said male issue. Article XVI of the Constitution of the State of Negeri Sembilan«. in that order. When.. Article XVI of the State Constitution was amended to include those words. The seat of the Undang of Jelebu became vacant when the fourteenth Undang died in November 1979 and the choice of the fifteenth Undang was challenged in a civil suit on the grounds that he did not come from the proper ada lineage. in the opinion of the Undang. Delivering the majority decision. After the decision in Dato Menteri Othman.32-3: Election of Undangs has since time immemorial been made in accordance with the ancient customary laws of the respective luaks. although the original Article XVI did not contain the words ³election or succession to or removal from or vacation of office of any of the Ruling Chiefs´.L. It gives carte blanche to the Dewan to give ³advice´ on such matters«. the grandsons. It decided that the appropriate body empowered under the State Constitution to decide on the matter of election of undang is the Dewan Keadilan Undang-Undang. and the sons of the paternal uncles. beginning with the brothers of the deceased Yang di-Pertuan Besar. Protects the ancient customary laws of Negeri Sembilan. The Federation Court in Dato Menteri Othman interpreted the words ³relating to Malay custom in any part of the state´ to include succession of any of the Ruling Chiefs. being the highest court in the land in constitutional matters should take the occasion to reaffirm expressly.The Constitution of Negeri Sembilan 1959 stipulates that no person shall be elected as Yang di-Pertuan Besar of the state unless ³he shall be a male of the Malay race. and therefore it was alleged that his appointment was void.

a piece of sawah (rice field) and a customary house. a certificated person or the natural child of the deceased. and should have been done according to the Malay custom of the luak of Sungei Ujong. like all the states in Malaysia. Under the Torrens system of registration applied in Negeri Sembilan and Malacca. Thus. conditional upon payment of a sum of money. but there is proof that it is ancestral land. Hj Badar v Isam bt. If pesaka land belonging to a member of one clan is registered in the name of another clan. To deprive a tribal female of her customary inheritance is tantamount to reducing her to the status of a dagang (foreigner) in her own tribe. being a person who professes the religion of Islam. Clearly the removal of the Dato¶ Shahbandar of Sungei Ujong was a matter of custom. a female must be identified with a piece of land. leased or transmitted to a Malay. the question was whether Melaka customary land was transmissible by will to a defendant who is not a Malay. Other land endorsed as µcustomary land¶ under the Customary Tenure Enactment (FMS) and the National Land Code (Penang and Malacca Titles) Act 1963 can only be transferred.Federal Court decision was followed in Dato¶ Hj Shahari bin Hj Hassan v Hj Shamsudin bin Talib & Ors [1998] 3 MLJ 705. the owner of ancestral land is required to endorse µcustomary law¶ on the title to ancestral land. the holder of a registred title has legal title. It also provides ways through which adat rules can apply. habitually speaks the Malay language. It re-emphasized that any matter pertaining to the Malay custom in Negeri Sembilan is within the jurisdiction of the Dewan. conforms to Malay customs and was born before Merdeka Day in the Federation or is an issue of such a person. Mohd Syed & Anor [1936] MLJ Rep 34 (SC)(FMS) held that land which had been transferred outside the clan to a male belonging to another clan had to be returned. Therefore. is vested with the customary property which comprises a piece of kampong land. When there is no such endorsement on the title deed. the waris (representative) of the former clan has a right to redeem the land but is not eligible to hold it in his name. in Munah bt. Lamin P. Although the spirit of the legislation is to dissuade Malays from parting with interests in Melaka . charged. by custom. Such an endorsement would restrict transferability of an ancestral property and prevent a member of the clan from ending up landless.C. Inherintance and Harta Pesaka Inherintance of the ancestral land and property under adat perpatih is matrilineal which the female of the family. the Dewan was the final arbiter. the adat Naning in Negeri Sembilan is primarily concerned with land and is founded on a system of matrilineal clans. Thus. the collector is empowered to enter an endorsement to that effect. In Tan Eng Lok v The Estate of Tan Kim Tiong [1999] 6 MLJ 193 (HC). As with adat is incumbent on every lembaga (chieftain) to see that no female member of the tribe is deprived. Thus. Land Tenure. The court¶s jurisdiction has been ousted by the express words of the State Constitution.A noted that only those belonging to or coming within the jurisdiction of the adat may administer adat. By law.

which reverts to her on marriage. the court held that harta sepencarian applies to all kinds of property. In Roberts @ Kamarulzaman v Ummi Kalthom [1966] 1 MLJ 163 (HC). since the owner died leaving a will. which reverts to him on divorce. the principal seemed to be confined to land as the Malays had traditionally worked on the land.customary land. the conjugal property acquired together during marriage is divided equally between the husband and wife. This form of property is genrally recognized as part of Malay adat in the states of Peninsula. Malay Adat in Sabah & Sarawak In Sabah and Sarawak. Malay adat is in the form of:  codes  judicial decision  a mixture of Islamic law and adat . Salleh Abas C. is matrimonial property. although it was registered under the name of the wife. It usually takes the form of gold ornaments or such property as may be given to her by her parents. Initially. so long as it was acquired during the marriage. the collector may deal with it under section 24 of the Small Estates (Distribution) Act 1955 (Act195)(Revised 1972). In the event of divorce. a divorced Muslim husband could claim a half share as harta sepencarian of immovable property jointly acquired by both spouses during the subsistence of their marriage. Marriage or conjugal properties are divided into 3 kinds: i) ii) iii) harta pembawa harta dapatan harta sepencarian Harta pembawa refers to inherited property brought by the husband to the marriage. movable and immovable. In this case. Harta dapatan is brought by the wife to the marriage. which is none the less recognized under adat. any certificated person who is the proprietor of any such customary land has a permanent and heritable right of ownership and may transmit land according to any succession law in force. In Boto¶ binti Taha v Jaaffar bin Muhamed [1985] 2 MLJ 98 (HC). the law presumes that the property was harta sepencarian and it falls on the spouse who denies the clain to rebut the presumptions. that will took centre-stage. It did not matter that the defendant was neither a Malay nor the legitimate daughter of the deceased. The fact that it was so registered was not a bar to his claim. A non-endorsed title. but in this case.J commented that harta sepencarian is not so much based on Islamic jurisprudence as on customs practiced by the Malays. Harta sepencarian refers to property that the couple acquired together during their marriage. Once it is proved that property was acquired jointly or that a claimant has assisted in the working of it. Where a claim under adat exists.

a pregnant woman¶s oath that a particular man was the father of her child was accepted under the said codified Malay custom.91). matrimonial property and bethoral. 96)(Revised Laws of (1958). as it was considered µcustomary among Malays in Sarawak¶ long before the Adoption Ordinance of 1941 (Cap. however. Lee 1973 (Sabah): 27. The courts recognized Malay adat even it conflicted with other laws. For instance. Under the original order. the court upheld the Undang-undang Keluarga Mahkamah Melayu (Code on Malay Family Law) although it was contrary to English law. a case on harta sepencarian. Islamic law was codified in 1936 and administered as part of the native customary laws in matters concerning marriage. according to custom. Malay adat was applied. The judge held that the racial law of the deceased remained unaltered by change of domicile. Islamic law was applied as the µracial law¶ of a Malay who originated from Brunei. NCA. In Sheripah Unei and Sheripah Ta¶siah v Mas Poeti and Anor [1949] SCR 5. child adoption under adat was recognized even though ut was contrary to Islamic law. In that case. . inheritance. Sarawak The principles of Malay adat which were codified by the Rajahs included elements of Muslim law and were embodied in the Undang-undang Mahkamah Melayu Sarawak (the Laws of the Sarawak Malay Court). In Ariff bin Samat v Abdul Samat bin Noor Mohamed. in Matusin bin Simbi v Kawang binti Abdullah [1953] SCR 106. property had to be disposed of in accordance with µthe law and customs of the tribe¶. and distribution µmust be fair and equitable toward the relatives or natural heirs¶ ± an illustration of the mixture of adat and Islamic law. Lee 1973 (Sabah): 164. Then in Abang Haji Zaini v Abang Haji Abdulrahim [1951] SCR 3. placed on record that he felt the custom was contrary to his personal views. The judicial commissioner. NCA. applying the Muslim Wills Ordinance 1896. which only allows disposal of one-third of his property by will. but had resided with the Bajau community in Sabah for 40 years. published in 1915. This is the only such codification in Malaysia.M Mahadar bin Datu Tuanku Mohamed v Chee [1941] SCR 96. an adopted child could inherit the property of the adoptive parent under Malay adat eventhough it conflicted with Islamic law. In S. Then in Tiamsah bt Olod v Kanali Gantarum. and it directly conflicted with the bastardy laws of Great Britain and the principles of natural justice.Sabah Malay adat in Sabah is a mixture of Islamic law and adat. a Muslim was allowed to dispose of his property by will according to his own wishes and not regulated by Islamic law. An example of the codification of Malay adat is the Muslim Wills Ordinance 1896 (Cap. resulting in a situation where there was no uniform application of Malay adat.

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