Customary Law in Malaysia

Customary law or we called it as adat, a Malay term is an ancient unwritten laws that are found
in a particular place where no rules has ever been enacted by the legislative authority. Adat or
customary laws are usually concerned mainly with matters of personal status. For example, land-
holding and inheritance. In the past, customary law consists of a set of unwritten laws or rules
that have not been enacted by legislative authority or formed as in the case of current legislation.1

After the rise and fall of our country, there are several customary laws that still survive to this
day without being destroyed and replaced by the common law during the British colonization.
Those customary laws can be broken down into five categories. The five categories of customary
laws in Malaysia are:

 Malay customary law applicable to the Malays

 Chinese Customary law applicable to the Chinese
 Hindu customary law applicable to the followers of Hinduism
 Orang Asli customary law applicable to the Orang Asli in Peninsular Malaysia
 Native Customary law applicable to the non-Muslim indigenous community in Sabah and
Sarawak2

There is no customary law that are generally apply in Malaysia. Customary law can be said as a
personal laws which are applicable to certain racial, religious or ethnic groups. The one of the
most prominence customary law that currently exists in Malaysia is Malay customary law. Malay
customary law can be further divided into two categories which are adat perpatih and adat
temenggong. In both, the application of the adats differs in some aspects. Adat pepatih is based
on matrilineal which is in favour of women in the distribution of inheritance. Unlike in the case
of Adat Temenggong, it is not based on Islamic rules in land matters. Under Adat Pepatih, there
are two categories of inherited property that is ancestral property (tanah pesaka) and acquired
property. Ancestral property is property belonging to the tribe such as land, paddy fields, orchard
and so on. Apart from that, acquired property refers to the property existing at the time of
marriage. It can be divided into three categories which are harta sepencarian, harta pembawa and
1
Founder, History of Native Customary Law in Sabah and Sarawak. (n.d.). Retrieved from
https://www.lawteacher.net/free-law-essays/equity-law/founder-history-of-native-customary-law-
essays.php
2
Wan Arfah Hamzah, A First Look At the Malaysian Legal System, Selangor: Oxford Fajar,2009
harta dapatan. While for Adat Temenggong or patriarchal Malay customary Malay law where the
men are the head of the family. It was the basis of the laws found in the Malay legal digests
complied between the 15th and 19th centuries. Adat Temenggong is based on patrilineal which is
in favour of men in the distribution of inheritance principles of customary laws and is
fundamentally based on Islamic principles or Hukum Syariah. It basically holds the same rules
on distribution of inheritance as the Quran. Therefore, this helps to explain why Adat
Temenggong is more acceptable by the Malay community. Thus, Adat Temenggong is preferred
by the community when compared with the Adat Pepatih.3 In Malaysia, the basis of Islamic law
that applicable today is come from the Malay customary law.

These customary traditions survived British administration. They were accommodated, as it was
British policy to apply the common law only in so far as the religions, manners and customs of
local inhabitants permitted, to prevent the common law from operating unjustly and
oppressively. However, nowadays customary laws are in decline. In Malay adat law, only adat
perpatih which is the branch of Malay adat law based on matrilineal tradition is still practiced in
Negeri Sembilan.

On the other sides, Chinese and Hindu customary forms of marriage may still be celebrated and
practices by most of the Chinese and Indians. This bring the meaning that the marriage ceremony
can still be in the form of a custom practice by its community as long as the marriage is
registered after the ceremony. However, the legal aspects of marriage and divorce among non-
Muslims are now governed by the Law Reform (Marriage and Divorce) Act 1976 (Act 164). The
changes are made to abolish polygamous marriages among non-Muslims. This Act introduced a
common system of solemnization and registration of marriage without prejudice. Even so, the act
does not affect the validity of any marriage solemnize under any law prior to its affective date of
the Law Reform Act. In short, the application of Chinese and Indian customary law was
restricted only to family matters. It was not fully applicable until today. It is because Malaysian
are now governed by a supreme law of the land which is the Federal Constitution. However, their
marriage customs had been governed by the Law Reform Marriage Act to settle dispute occur
among them besides distinguishing it from the Islamic law which govern the Malay Muslims. 4

3
Founder, History of Native Customary Law in Sabah and Sarawak. (n.d.). Retrieved from
https://www.lawteacher.net/free-law-essays/equity-law/founder-history-of-native-customary-law-essays.php
4
Wan Arfah Hamzah, A First Look At the Malaysian Legal System, Selangor: Oxford Fajar,2009
Nowadays, only the native customary laws applicable to the non- Muslins of Sabah and Sarawak
remain vibrant. They are administered by a system of Native Courts in each of these two states.
Many of the native indigenous in Sabah and Sarawak still practice their native customary law
freely as long as it does not inconsistence with our supreme law, the Federal Constitutions. For
instance, the Iban customary law and Dusun customary law. Iban customary laws is only
applicable to the state of Sarawak in East Malaysia whereas the Dusun customary laws is only
applicable to the state of Sabah in East Malaysia.