1.

Introduction: Early Legal Systems

Prior to colonization by western powers, a form of rudimentary, tribal legal system was said to exist on
the Peninsula. [1] Various aboriginal tribes had been in occupation of the Peninsula as well as Borneo
long before foreign settlers arrived. Although their laws were primitive and unwritten, their
organizational abilities were adequate and served as a model for later Malay villages
or kampongs . For example, the head of the village or penghulu was an organizational social structure
derived from the Negrito tribe. [2] The penghulu of any village or kampong usually had full civil and
criminal powers over his flock.

Although the early peoples of the Malay Peninsula were varied, they shared a similar belief system,
which enabled the easy absorption of the Hindu religion, which was to follow. These early societies
were characterized by animism and ancestor worship. Nature and all natural elements were
important, as being primarily agriculturalists, they relied heavily on a bonding with nature. [3]

Records regarding the existence of a large Hindu empire in the Malay Archipelago were derived from
the Tang Dynasty (AD 618-906). The empire encompassed lands across the Straits of Malacca and
parts of Java, including a place north of Palembang in Sumatra called Melayu. This was the kingdom
of Srivijaya. Srivijayan society was known to be both highly civilized and cultured and the kingdom
itself a centre of learning. One of the most lasting legacies of this Hindu rule is the system of
monarchy. The concept of kingship is based on the Hindu concept of sakti , which literally translates
into the king having powers which are not of this realm. During the Malacca Sultanate, this concept
evolved into the concept of daulat . The concept of daulat differs from sakti in that the king is not
regarded as one having supernatural powers, but the idea of kingship is rooted to those having
particular or peculiar characteristics, which separates him from the rest of the ordinary
populace. Hence, this clothed the king, or raja with his right to rule. The king’s power and rule over
his subjects were absolute and it was not possible for any subject to question or go against his wishes
or orders. This concept survived well into and beyond the Malacca Sultanate.
Another lasting legacy of Hindu rule is the adat or customary laws they leave behind. Prior to the
arrival of the British in Malaya, the Malays and the natives of Sabah and Sarawak, followed their own
customs and traditions or adat . There are two main streams of adat - the adat perpateh and the adat
temenggong. Both forms of adat are believed to have originated from Sumatra, especially from the
district of Minangkabau. Early migrants from Minangkabau concentrated themselves in two districts
of the Malay Peninsula - Naning in Malacca, and the State of Negeri Sembilan. The adat
temenggong is patrilineal while the adat perpateh is matrilineal. The system of administration of
the adat temenggong is autocratic, while that of the adat perpateh is democratic. In the
administration of civil and criminal law, both forms of adat admit opposing characteristics. For
example, in the adat temenggong criminal punishment is on the basis of an eye for an eye, while in
the adat perpateh, the emphasis is not so much upon punishment for the offence but upon remedial
measures to correct an injustice. [4]

The British colonial administration was brought into contact with elements of the
Malay adat, particularly the adat perpateh , through disputes pertaining to property, in particular the
issue of division of property between husband and wife upon divorce. A substantial amount of case
law grew around this issue of harta sepencarian , or jointly acquired property. [5] Subsequently, the
British colonial administration enacted legislation to protect some instances of custom, particularly
those pertaining to land. An example of this is the Customary Tenure Enactment of Negeri Sembilan
(Cap 215). [6] In Malaccam, custom received legislative sanction through the Malacca Land
Customary Rights Ordinance. [7]