Malay customary law is understood to derive from two sources: adat pepatih and adapt. Adat pepatih developed among the matrilineal Minangkabau of Sumatra. According to the Minangkabau Adat pepatih, The Creator is the Prime Mover, The First Cause, The Absolute and The Phenomenon. Although we learn about. What is adat land? • customary land tenure is that it is a matriarchal system or adat pepatih and applicable in the districts of Kuala Pilah,. Rembau, Jelebu and.
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Skip to main content. Log In Sign Up. Ustomary law in malaysia. Adat Malays in Peninsular Malaysia are adar by adat and Islamic law in addition to the general law applicable to all communities. It is perhaps one of the most powerful statements relating to adat and its place in Malay society.
The importance of adat is also embodied in this saying: Adat Perpatih and Adat Temenggung. The unique characteristic of Adat Adaat is its matrilineal form of organisation.
It concerns with matters such as land tenure, lineage, inheritance and election of members of lembaga and YDP. Matrilineal is a system in which one belongs to the mother’s lineage; it generally involves the inheritance of property, names or titles from mothers to daughters. Inter-tribal marriage is not allowed among Adat Perpatih followers.
Punishment system in the laws of Adat Perpatih generally aims to reform or rehabilitate the wrongdoer rather than retaliating against him. Adat Temenggung Adat Temenggung applies in other states. It is based on the characteristic of the patrilineal form of organisation.
Patrilineal is a system in which one belongs to the father’s lineage; it generally involves the inheritance of property, names or titles from fathers to sons. Marriage between those who come from the same tribe is allowed. Unlike Adat Perpatih, the laws in Adat Temenggung are harsh – punishment is imposed as retribution. Historical perspective To understand the whole purpose of this topic, it is very important to note the historical background of Peninsular Malaya and the Malays themselves.
Throughout the past centuries, the country and its inhabitants had gone through various stages of cultural influences which had led to the development of a set of rules that govern the country until the beginning of the colonial era. Due to its geografical situation, the Peninsular of Malaya was favoured by the Indian and Chinese traders plying the sea routes between India and China as far back as the 7th century B.
At the beginning of this era the first Indian settlement had already established themselves in Malaya and until the 14th century Indian culture puts its stamp on the Malays way of life, introducing Indian religion, laws and language in this region and replacing native tribal organisation with government by a Sultan.
The Indianisation was the result of a two way traffic, first from the Indian traders and secondly it was possible that the idea of Hinduism spread more from the visits by the Malays to the centre of Hindu culture in India. During the 1st to the 13th century a number of Hinduised empires arises in South East Asia for example, Funan in the 1st century, Sri Vijaya in the 7th century and Majapahit in the 13th century.
In Peninsular Malaya, the Hindu influence can be found in the early civilized states such as Kedah at that time called Langkasuka and in Pahang. The cultural influence spread into Malaya and affected the political and social institution. The concept of state and kinship has been change, tribal policies were raised in status to kingdoms, the concept of god-king had been introduced replacing the tribal chieftan.
Holding power by virtue of a menifest divinity that transcended the customary law of the tribe, the god-king was liberated from the traditional constrain that had limited the power of the tribal chieftan. The influence of Hindu law and the custom can also be found in the Court hirarchy, prerogatives and ceremonial in the marriage customary rites and in the Malay customary law.
The tribal and matriachal elements in Malay customary law were in some areas modified so as to make the customary law monarchial and patriarchal. It is also being said that Adat temenggong being one of the branch in the Malay adat Law derives its patriarchal character from the Hindu influence.
Hindu law being the first foreign element to be adopted by the Malay adat Law, it is significant to note some aspect of it in order to understand the sources of law and legal system at that time.
It covers family law, succession, property, contract, crime and punishment, judicial procedure and evidence. Of all branches of Hindu law, constitutional law and criminal law have left most traces in Medieval Malay States. The Sultan is the sovereign and exercise the function of the executive, judicial and sometime legislature. His power is absolute and this influence to some extend still exist in the modern Malay community today whereby the monarchial institutions and some aspect of feudal values are part of the Malays way of life and is very sacred.
The whole of Hindu criminal law is characterized by lex teleonis. The offender shall lose the limb which was used in the offence, unless he is of higher caste than the offended. Penalties consist of four groups, admonition, reproof, fines and corporal punishment mutilation, torture, death. As to the law of evidence, presumption of guilt was required in the form of human prison houses or roads in order to evidence and devine evidence.
Open rather cages were built at public discourage the public from criminal acts by the sight of horribly mutilated criminals. It is more of a deterrence means rather than to reform. This is a practice which was followed in the Malay States in those days.
Islamic influence in the Malay world During the 14th country Malacca raised adxt be the centre of Malay civilization in the Peninsular. Due to its geographical strategic position it had become a famous port and a trade centre linking Middle-East and China. By the end of 15th century Malacca had become a power of great importance in South East Asia. During the time of Megat Iskandar Shah the first ruler of Malacca, Pasai was the trade centre but by the later stage of his rule the Javanese trade was diverted from Pasai to Malacca.
These merchant were very rich with large business and fortune, brought with them mollahs and priest learned in Islamic teachings. Sultan Iskandar Shah derived great profit and satisfaction by the prosperity of trade in Malacca. He was very pleased and in return he did them honour, giving them places to live and place to built their mosque. The rapid spreading of Islamic teachings in Malacca and the whole Peninsular was indirectly improved by the Hindu influence in the Malay society.
As has been mentioned earlier that the Ruler under the Hindu influence was portrayed as a god adzt and he demands absolute loyalty of his subjects. When Sultan Iskandar converted to Islam he made all his people do the same without any opposition. Within half a century, Malacca became a centre of Islamic studies.
It converted the whole Peninsular by force of arms and made their Rulers accept the new faith and despatched missionaries along every trade route. The early missionaries of Islam found out that officials were administering a system of Hindu customary law and the Malays were very much influenced by mysticism and they tried very hard to change that in compliance with the Islamic teachings using every method of propaganda at their comand.
This was made easier because they had the blessing from pepatig Sultan of the respective states and the concept of blind loyalty to the feudal lords in the Malay community. When they converted the Sultan to Islam, his subjects would do the same.
Hindu incantation were now called prayers doa. This methods of exploiting the Malays obsession to mysticism and giving it a breath of a new faith was very effective. In other words, the social structure of the Malays was not being changed entirely by Islam but it gave a new dimension of interpretation to the social order of the community itself.
At this stage the Islamic teachings was adopted in matters of pure religion only but after some time Islamic laws gradually penetrated into Malay criminal law, marriage and divorce, division of property and inheritance.
Many of the provisions in the Malay law digest and the tribal pe;atih in Negeri Sembilan shows considerable Adaf influence. Islam indeed was welcomed because not only peptaih it free the Malays from the oppressive stratification of Hinduism and absolute power prpatih the Hindu ruler but also change the ideological aspect of the community.
Instead of being a pepayih of a god king, their perspective of the world has widen. This has open a new era of development to a community that has been living in the state of backwardness and oppression of the feudal lords. The Malay laws Adat Malay customary law is called adat, a word borrowed from Arabic. Adat in general means a right to conduct an in common usage, it stands for a variety of things all connected with proper social behaviour and culture.
Thus it will connote rules of etiquette and the ceremonies prescribed for a particular occasion such as marriage as well as those customs which have legal consequences. It has been said: The man who uphold the nouns will be rewarded by his fellowmen with approbation, honours and the like; These are positive sanction. The man who does not uphold the norms will be punished by negative sanction.
They may take many difference forms, ranging from minor social sanction, such as ridicule and refusal to interact with him, to the most extreme — that of ostracism by the community.
Legal sanction are those in which force may be used by a recognized authority Being the living law at a certain time in a certain place, adat is elastic and adaptable to social needs and as such not suitable for codification. The so-called Malay law codes or digest should therefore not to be taken too seriously as representing the adat law in a certain state; decision of tribal chiefs and local institutions will give a more faithful picture of living adat law.
Although adat law is very adaptable, this does not mean, however that he chiefs can hand out decisions at will. A great number of adat regulation put a limit to their freedom.
It is a social norm established by long usage laid down by a paramount political power or rules of human conduct which is recognized as being obligatory. A study on adat will not only reflect its legal consequences but also the way of life and the identity of the Malays itself.
Malay community can be classified into two groups. One following adat temenggong and the other adat pepateh. Adat pepateh was adhered to by the Malays inhibiting Negeri Sembilan and certain parts in Malacca, especially Naning. Malays in other parts of the Peninsular are supposed pepathi follow adat temenggong.
Though both the adat originated from tribal organization in the past, it is in adat pepateh that is the remnants of tribal structure are clearly evident. The two adats are believed to have been called after two legendary law givers, Dato Pepateh Nan Sabatang and Dato Ketemenggungan. According to the terombo songs of origin these law givers held sway ppeatih different parts of Minangkabau.
Commercial Law: Customary Law in Malaysia : Adat Perpatih
Why Dato Pepateh insisted upon matriliny and exogamy for his followers while Dato Ketenmenggungan was inclined to patrilineal peptih and endogamy is not precisely known.
These two systems was imported directly to the Malay Peninsular. It however did not explain why only certain parts of the Peninsular follows adat pepateh and the others adat temenggong. The only explanation suggested is that the Malays in the Peninsular are believed to have come from the Minangkabau highland wdat Central Sumatra by different routes. Direct emigrants from Minangkabau to the strip on the Peninsular opposite, brought the democratic institutions and mild laws, based on exagomous matriarchal tribal structure of their homeland called adat pepateh.
The other route of emigration led through Axat in south Sumatra which formed a pact of Hiduized kingdoms. In this strong patriarchal and autocratic environments, adat pepateh deteriorated into a constantly changing mass of institutions and regulations which pepatihh administered by despotic rulers and officials and became known as adat temenggong.
Between these two groups of Malays, it is the adat pepatih society which follows its adat scrupulously. At present when one refers to the Malay adat, the adat pepatih will gained dominence over adat temenggong. Wilkinson wrote inhe stated that: The difference between adat pepatih and the adat temenggong is visible in the days of British administration Whenever a miscarriage of justice occurs in Perak, Pahang and Selangor the Malays takes it very calmly but in Negeri Sembilan the whole population is exited by any non-recognition of the local adat.
The nature of Malay law Malay lepatih were never committed to writing, they were constantly overriden by autocratic chiefs and unjust adxt, they varied in each state, they did not harmonized with the doctrine of Pepatin that they professed to follow, they were often expressed in methaphores or proverbs that seemed to baffeled interpretation.
They are only digest of Malay laws. There is a great difference between a digest and a code.