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 “grafting the Islamic Law of the new Sultanate {of Malacca} on to the earlier law of a
Hindu Court”
 Apart from Islam, Hindu Law had a great impact on adat temenggungin the area of
criminal law, infusing into it the elements of retribution and punishment, as opposed to adat
perpatih, which aims at restitution rather that retribution.

Adat Perpatih

Since it is the adat perpatih society that follows its adat scrupulously, reference to Malay adat
tends to be a reference to adat perpatih rather than to adat temenggung. Elements of adat perpatih
in written form are found in digests of customary law, for example, a digest of customary law
from Sungei Ujong, a Minangkabau legal digests from Perak, and another from Kuala Pilah.
These digests contain tribal sayings that have been handed down from generation to generation
as much of the adat is contained in oral traditions. Adat perpatih covers matters concerning
matrimonial law and property and, to a limited extent, criminal law and restitution. More
importantly, it covers matters concerning the state, which includes succession in title or lineage
and the election of traditional chiefs.

Election of traditional chiefs

Adat perpatih envisages a hereditary constitutional monarchy within a matrilineal organization.

Adat determines affairs of state with respect to life in the kampong(village), mukim(parish),
luak(district), and nagari or negeri(state). As a socio-political unit, the clan is ruled by lembaga,
who is elected in a rotational syatem by the various buapak or members of the clan. The buapak
is, in turn, elected by the anak buah (kin). The clans make up the luak and each luak is controlled
by an undang, who must hail from a recognized hereditary clan called perut, and is a son
identifiable through the maternal lineage. As a traditional territorial unit, the luak has four clans.
There are four undang who each head a luak, namely the Undang of Sungai Ujong, of Jelebu, of
Johol, and of Rembau. These undang are elected in accordance with the customs of their
respective territories. The undang elect the Yang di-Pertuan Besar, who will liaise closely with
the undang on matters of adat.

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. 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. Part of the ancient customs is the concept of composite rulership, consisting of the
Yang di-Pertuan Besar and five ruling chiefs, the Undang of Sungai Ujong, Jelebu, Johol, and
Rembau, and the Tuanku Besar of Tampin (Article XIV). They are members of a council known
as the Dewan Keadilan Undang-Undang, whose role is “to advise on questions relating to
customs”
 The Constitution of Negeri Sembilan 1959 stipulates that no person shall be elected as
Yang di-Pertuan Besar of the state unless “he shall be a male of the Malay race, of sound mind
and a Muslim who is lawfully begotten descendent in the male line of Raja Radin ibni Raja
Lenggang”. When, in the opinion of the Undang, there is no suitable and competent person
among the said male issue, then they may look outside the immediate family to their relations,
beginning with the brothers of the deceased Yang di-Pertuan Besar, the paternal uncles, the
grandsons, the sons of the brothers, and the sons of the paternal uncles, in that order.

In any matter relating to Malay adat in Negeri Sembilan, the state or the Dewan Keadilan
has total jurisdiction. This includes matters relating to the election or succession or rulers of
ruling chiefs. 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 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, and that he lacked the proper
characteristics and a qualification to become Undang of Jelebu, and therefore it was alleged that
his appointment was void. The court was asked to declare the election ultra vires that adat and
the Constitution of the luak of Jelebu. The Federal Court declined to exercise its jurisdiction. 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, which is the highest adat
constitutional body provided for under Article XVI of the Negeri Sembilan State Constitution.
The court would be usurping the powers of Dewan if it intervened. Delivering the majority
decision, Raja Azlan Ag.L.P (as he then was)said at pp.32-3:

Election of Undangs has since time immemorial been made in accordance with the ancient
customary laws of the respective luaks. Article XVI of the Constitution of the State of Negeri
Sembilan…. Protects the ancient customary laws of Negeri Sembilan. It was drafted in broad
and ample style which lays down principles of width and generality pertaining inter alia to Malay
custom. It gives carte blanche to the Dewan to give “advice” on such matters….. In that context
the Dewan does not make suggestions; it takes cognizance of such matters as may be referred to
it and gives decisions in the form of “advice” in the same way as the Privy Council gives
“advice” to His Majesty the Yang di-Pertuan Agong on the matters of appeals from this country.
This court, being the highest court in the land in constitutional matters should take the occasion
to reaffirm expressly, 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 Federation Court in Dato Menteri Othman interpreted the words “relating to Malay custom
in any part of the state” to include succession of any of the Ruling Chiefs, although the original
Article XVI did not contain the words “election or succession to or removal from or vacation of
office of any of the Ruling Chiefs”. After the decision in Dato Menteri Othman, Article XVI of
the State Constitution was amended to include those words, to give effect to the decision. The
Federal Court decision was followed in Dato’ Hj Shahari bin Hj Hassan v Hj Shamsudin bin
Talib & Ors [1998] 3 MLJ 705. It re-emphasized that any matter pertaining to the Malay custom
in Negeri Sembilan is within the jurisdiction of the Dewan. The court’s jurisdiction has been
ousted by the express words of the State Constitution. Clearly the removal of the Dato’
Shahbandar of Sungei Ujong was a matter of custom, and should have been done according to
the Malay custom of the luak of Sungei Ujong. Lamin P.C.A noted that only those belonging to
or coming within the jurisdiction of the adat may administer adat. Thus, the Dewan was the final
arbiter.

Land Tenure, Inherintance and Harta Pesaka

Inherintance of the ancestral land and property under adat perpatih is matrilineal which the
female of the family, by custom, is vested with the customary property which comprises a piece
of kampong land, a piece of sawah (rice field) and a customary house. By law, a female must be
identified with a piece of land. 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. Therefore,it is
incumbent on every lembaga (chieftain) to see that no female member of the tribe is deprived.

As with adat perpatih, the adat Naning in Negeri Sembilan is primarily concerned with
land and is founded on a system of matrilineal clans. If pesaka land belonging to a member of
one clan is registered in the name of another clan, the waris (representative) of the former clan
has a right to redeem the land but is not eligible to hold it in his name. Thus, in Munah bt. Hj
Badar v Isam bt. 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,
conditional upon payment of a sum of money.

Under the Torrens system of registration applied in Negeri Sembilan and Malacca, like
all the states in Malaysia, the holder of a registred title has legal title. Thus, the owner of
ancestral land is required to endorse ‘customary law’ on the title to ancestral land. Such an
endorsement would restrict transferability of an ancestral property and prevent a member of the
clan from ending up landless. It also provides ways through which adat rules can apply. When
there is no such endorsement on the title deed, but there is proof that it is ancestral land, the
collector is empowered to enter an endorsement to that effect.

Other land endorsed as ‘customary land’ under the Customary Tenure Enactment (FMS) and the
National Land Code (Penang and Malacca Titles) Act 1963 can only be transferred, charged,
leased or transmitted to a Malay, being a person who professes the religion of Islam, habitually
speaks the Malay language, conforms to Malay customs and was born before Merdeka Day in
the Federation or is an issue of such a person. In Tan Eng Lok v The Estate of Tan Kim Tiong
[1999] 6 MLJ 193 (HC), the question was whether Melaka customary land was transmissible by
will to a defendant who is not a Malay, a certificated person or the natural child of the deceased.
Although the spirit of the legislation is to dissuade Malays from parting with interests in Melaka
customary land, 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 this case, since the owner died leaving a will, that will took centre-stage. It did
not matter that the defendant was neither a Malay nor the legitimate daughter of the deceased.

A non-endorsed title, which is none the less recognized under adat, is matrimonial
property. Marriage or conjugal properties are divided into 3 kinds:

i) harta pembawa
ii) harta dapatan
iii) harta sepencarian

Harta pembawa refers to inherited property brought by the husband to the marriage,
which reverts to him on divorce. Harta dapatan is brought by the wife to the marriage, which
reverts to her on marriage. It usually takes the form of gold ornaments or such property as may
be given to her by her parents. Harta sepencarian refers to property that the couple acquired
together during their marriage. This form of property is genrally recognized as part of Malay adat
in the states of Peninsula. In the event of divorce, the conjugal property acquired together during
marriage is divided equally between the husband and wife.

In Boto’ binti Taha v Jaaffar bin Muhamed [1985] 2 MLJ 98 (HC), Salleh Abas C.J
commented that harta sepencarian is not so much based on Islamic jurisprudence as on customs
practiced by the Malays. Once it is proved that property was acquired jointly or that a claimant
has assisted in the working of it, the law presumes that the property was harta sepencarian and it
falls on the spouse who denies the clain to rebut the presumptions. Initially, the principal seemed
to be confined to land as the Malays had traditionally worked on the land, but in this case, the
court held that harta sepencarian applies to all kinds of property, movable and immovable, so
long as it was acquired during the marriage. In Roberts @ Kamarulzaman v Ummi Kalthom
[1966] 1 MLJ 163 (HC), 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, although it was registered under the name of the wife. The fact that it was so
registered was not a bar to his claim. Where a claim under adat exists, the collector may deal
with it under section 24 of the Small Estates (Distribution) Act 1955 (Act195)(Revised 1972).

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
Sabah

Malay adat in Sabah is a mixture of Islamic law and adat. Islamic law was codified in 1936 and
administered as part of the native customary laws in matters concerning marriage, inheritance,
matrimonial property and bethoral, resulting in a situation where there was no uniform
application of Malay adat. For instance, in Matusin bin Simbi v Kawang binti Abdullah [1953]
SCR 106, Islamic law was applied as the ‘racial law’ of a Malay who originated from Brunei, but
had resided with the Bajau community in Sabah for 40 years. The judge held that the racial law
of the deceased remained unaltered by change of domicile. In Ariff bin Samat v Abdul Samat
bin Noor Mohamed, Lee 1973 (Sabah): 27, NCA, an adopted child could inherit the property of
the adoptive parent under Malay adat eventhough it conflicted with Islamic law. Then in
Tiamsah bt Olod v Kanali Gantarum, Lee 1973 (Sabah): 164, NCA, a case on harta
sepencarian, Malay adat was applied.

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), published in 1915. An example of the codification of Malay adat is the
Muslim Wills Ordinance 1896 (Cap. 96)(Revised Laws of (1958). This is the only such
codification in Malaysia. Under the original order, property had to be disposed of in accordance
with ‘the law and customs of the tribe’, and distribution ‘must be fair and equitable toward the
relatives or natural heirs’ – an illustration of the mixture of adat and Islamic law.

The courts recognized Malay adat even it conflicted with other laws. In S.M Mahadar
bin Datu Tuanku Mohamed v Chee [1941] SCR 96, the court upheld the Undang-undang
Keluarga Mahkamah Melayu (Code on Malay Family Law) although it was contrary to English
law. In that case, according to custom, a pregnant woman’s oath that a particular man was the
father of her child was accepted under the said codified Malay custom. The judicial
commissioner, however, placed on record that he felt the custom was contrary to his personal
views, and it directly conflicted with the bastardy laws of Great Britain and the principles of
natural justice. 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, as it was
considered ‘customary among Malays in Sarawak’ long before the Adoption Ordinance of 1941
(Cap.91). Then in Abang Haji Zaini v Abang Haji Abdulrahim [1951] SCR 3, applying the
Muslim Wills Ordinance 1896, a Muslim was allowed to dispose of his property by will
according to his own wishes and not regulated by Islamic law, which only allows disposal of
one-third of his property by will.