CUSTOMARY LAW

Customary law, derived from custom and traditions observed by Malays over the centuries.

These customs and tradition subsequently acquires the character of law which were
enforced by the chiefs or elders. Customary law are personal laws which are applicable to
particular racial, religious or ethnic groups. As for instances in the Malaysian context ,
Islamic law is applicable to muslim irrespective of ethnicity. Cutomary law enforced by the
syariah court as part of the Islamic law, as adat perpatih in Negeri Sembilan enforced by the
adat and native law in Sabah and Sarawak enforced by the Native court. The customary law
of the major racial group and the indigenous people who inhabit the country have long been
recognized in Malaysia. This includes:

1. Malay Customary Law

2. Chinese Customary Law
3. Indian Hindu Customary Law
4. Native Law & Custom in Sabah and Sarawak

Malay Customary Law

The customary law followed by Malays are called adat or “ adst laws” adat has spreserved
and maintained traditional Malay society for many generations. Though there were No.
law, police and judges, yet they could maintain law and order in their society by way of
adats. As it was through the adats the Malays were checked and controlled in those days,
great importance and respect was given to adat. The importance and respect to adat was
also emphasized as “ kecil dikandung ibu, besar di kandang adat, mati dikandung tanah” .

adat perpatih practiced in Negeri Sembilan and the Naning Area of Melaka. The adat
perpatih brought over to this region by the Minangkabau immigrants from Sumatra. Under
adat perpatih, Power in the family was laid in the hands of the mamak (mother’s eldest
brother), then in the hands of sub tribe heads (perut) who were called buapak. This was
followed by the tribal chiefs lembaga the territorial heads undang and finally the ruler the
ownership & inheritance of harta pesaka, or ancestral land is strict to females. This
matrilineal is in the stark contrast to patriarchal adat Temenggung practiced in the rest of
peninsular Malaysia. The Harta Pesaka, or ancestral land, can only be held and inherited by
females. Adat Perpatih encompasses matrimonial law and property, and, to a limited extent,
criminal law. In criminal law, it emphasizes restitution rather than retribution. It also extend
to the election of customary chief such as Lembaga. Undang and the Yang-DiPertuan Besar
Article 71 Clause 1 (1) and (2) of the Federal Constitution and Article XXXII of the Negeri
Sembilan Constitution give force to this aspect of adat perpatih. Matters relating to the adat
perpatih are to be determined by Dewan Keadilan Undang Undang who are charged to
advice on questions relating to customs. In Dato Menteri Othman bin Baginda and another
v. Dato Ombi Syed Alwi bin Syed Idrus the Federal Court held that it could not rule in matters
affecting the election of an Undang, and that the election or succession to or removal from
or vacation of office of any of the ruling chief was within the exclusive purview of the Dewan
Keadilan Undang Undang. This position was reiterated in Dato Haji Shahari bin Haji Hassan v
Haji Samsuddin bin Talib & Ors.

Adat temenggung an inextricable mixture of local customs and Islamic law . This adat
spread to the states in peninsular via the sultanates of Palembang and Malacca. Evidence
to prove that both adats came from common msatrilineal sources could been seen in the
laws of property an inheritance of lands in Perak, Pahang, Selangor. Adat Temenggong is
said to be a mixture of adat, Hinduism and Islamic laws can be seen in the digest of Malacca
, Pahang and Kedah, Perak and Johore. The digest though mainly concerned with criminal
law, also provided rules on slavery, debts, loans and functions of officialls. Adat law
relating to marriage, divorce, custody, guardianship of children inheritance, crime and
punishment.

Chinese Customary Law

The Chinese customary law was brought into Malaya by the Chinese traders so Chinese
customs were applicable to all Chinese by virtue of race, irrespective of religion, domicile or
dialect. Yet the Chinese customary law was not fully recognised. It was, to a certain extent,
recognised only on family matters. In the case of Re Choo Ling Choon (decd) popularly
known as the six widow case, regarding Chinese customary law, the court held that Chinese
marriages under the customary law were polygamous. The principle that Chinese custom
were applicable to all Chinese, by virtue of race, was well accepted, in a divorce petition
Dorathy Yee Yeng Nam v lee Fook Kooi The judge granted decree nisi and confirmed that
the judge had given judicial recognition to certain custom prevalent or thought to be
prevalent among persons of Chinese race irrespective of their domicile or religion.
Generally, Chinese customary law was enforced in relation to marriage, divorce,
guardianship, maintenance, adoption, legitimacy, gift and succession, testate or intestate.

Indian Hindu Customary Law

Indian Hindu was brought into Malaya at the beginning of the Christian era by Indian
traders and settlers. Hindu law has its sources from the Dharmasutras ( law book in prose)
hindu law contains a systematic legal system. As early as the eleventh century, the legal
system spreads to its neighbouring countries including Bali and the Malay archipelago. The
Hindu law played a major role in these region on matters pertaining to family, succession,
property, contract, evidence, crime and punishment and judicial procedure. have long been
enforced in Malaysia: Pooto v Valee Uta Taven. It should be noted that it is possible for
customary law to be displaced by the statutory provision. Example, polygamous marriage
used to be valid under both Chinese customary law and Indian Hindu costmary law, this is
no longer the case. Polygamous marriage amongst the Chinese and Indian were rendered by
the Law Reform (Marriage and Divorce) Act 1976.

Native Law and Custom in Sabah and Sarawak

Paragraph 13 of List IIA of the Ninth Schedule to the Federal Constitution permits each of
the states of Sabah and Sarawak to establish native courts to determine matters relating to
native law or custom. The same paragraph carefully explains that ‘native law and custom’
includes the personal law relating to marriage, divorce, guardianship, maintenance,
adoption, legitimacy, family law, gifts of succession, testate or intestate. Thus, native law or
custom is enforced as law in Sabah and Sarawak by reason of a constitutional injunction.

It will be seen that customary law- whether Malay, Chinese, Indian or that of the native
people of Sabah and Sarawak- is concerned with the family law (marriage, divorce,
guardianship, maintenance, adoption, legitimacy, family law, gifts of succession, testate or
intestate). There is, however, a significant difference between the administration of native
law and custom and the administration of Chinese customary law and Indian Hindu
customary law. This is that while a separate system of courts exists to administer the
former, the latter are dealt with by the ordinary courts.