Founder, History of Native Customary Law in Sabah and Sarawak

Introduction

Customary law is the law of the local people as developed and handed down from time immemorial. A local word which is quite widely used in South-east Asia for recognised customary behaviour is the word “adat”. Rural people in general have a high regard for adat and usually expect persons from outside the locality to respect it. Owen Rutter provides a distinction between a law and a customs by saying that “strictly speaking the difference between a law and a custom is that a law is a rule of which a judicial court takes cognizance, punishing its infraction, whereas a custom is where it punishes in its own manner those who disobeys it”. The effectiveness of the adat depends on its universal acceptance in the community, the force of public opinion and the general attitude towards one who violates accepted norms and the individual’s susceptibility to feelings of human respect. In order for customary laws to be recognised as law, four conditions must be met that is the native law must be part of a long-established history, it must be continuous and not broken or interrupted from one generation to the next, it must be adhered to be respected and observed and the native law system must possess the authority to impose sentence on an individual who violates those native laws.

ADAT OR CUSTOMARY LAWS

Customary law (or 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. It is widely accepted that the original term for Malay customary law is adat. Adat or customary laws are concerned mainly with matters of personal status (for example land-holding and inheritance). In the past, customary laws (or adat) 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.

Customary laws in Malaysia can be broken down into four categories depending roughly on the geographical location of the states in Malaysia. The four categories of customary laws in Malaysia are:

Adat Pepatih,

Adat Temenggong,

Iban customary laws and

Dusun customary laws.

Adat pepatih is only confined to the state of Negeri Sembilan in West Malaysia and is mainly concerned with the provisions for land-holding including its inheritance. Adat Temenggong is customary laws based on Islamic principles and is applicable to all the other states in West Malaysia except Negeri Sembilan. Iban customary laws is only applicable to the state of Sarawak in East Malaysia while Dusun customary laws is only applicable to the state of Sabah in East Malaysia.

ADAT PEPATIH

Adat pepatih is based on matrilineal (in favour of women in the distribution of inheritance) and can be distinguished from the rest of the Malay customary law in that it contains traditions that are customary sayings which have been passed down from generation to generation. Adat Pepatih is not based on Islamic rules in land matters unlike in the case of Adat Temenggong. Under Adat Pepatih, there are two categories of inherited property that is ancestral property (or tanah pesaka in Malay) and acquired property. Ancestral property is property belonging to the tribe that is land, paddy fields and orchard). On the other hand, acquired property refers to the property existing at the time of marriage and can be divided into three categories – harta sepencarian, harta pembawa and harta dapatan.

According to Adat Pepatih, ancestral property is passed on or are vested in the female descendants of the tribe who hold the property in trust for the tribe. An important feature is that these properties cannot be sold by any will and can be inherited by female tribe members in equal share. In Munah v. Isam (1936) MLJ 42, the court ordered the return of tanah pesaka, which had been transferred to a person outside the clan conditional upon payment of a sum of money. The men unfortunately do not have the right or title to claim the properties. In other words, customary land can only be owned by female members of the tribe. Based on Adat Pepatih, a man is considered a member of his mother’s tribe until he marries and is accepted into his wife’s tribe. A man is considered as the salaried worker in the tribal system. When a man marries into a female tribe, his wife already owns a piece of land (foe example paddy field) as her share of the customary holding. The unmarried males have the right to life occupancy over the property of their mothers. Where a female is married, the property in the decendant line and lineage membership passes through the women.

For acquired property based on Adat Pepatih, the customary laws rules are more complicated than that of ancestral property depending of whether it is harta sepencarian, harta pembawa or harta dapatan. In the case of harta sepencarian, these are property acquired during their marriage, it depends on where the couple has children or not. Where there are no children from the marriage, in the case of harta sepencarian, the property will pass on to the wife upon her husband’s death and vice versa. Where there are children in the marriage, the property will pass on to the surviving spouse or children. In the case of harta pembawa (property belonging to the husband before marriage), the property shall go to (revert) his customary heirs upon his death. In the case of harta dapatan (property owned by the wife at the time of marriage) will go to her customary heirs upon her death.

There appears to be some ongoing tension between the application of Islamic law on one hand and adat, on the other, pertaining to inheritance and distribution of property of a deceased Malay. Islamic law and adat on these matters may differ and a Malay is affected by both sets of law. Traditional leaders in the Adat Pepatih regions would prefer to uphold the adat while Islamic authorities contend that a good Muslim should follow Islamic laws in all matters, including the distributiuon of property.

ADAT TEMENGGONG

It is strongly believed that Adat Temenggong which is found throughout Malaysia (including Brunei) is based on Undang-Undang Melaka. This is evidenced by the Pahang Digests of 1650, in particular the sections on port law, which are compiled when Sultan Rijaluddin Muhammad Shah ruled Naga. Adat Temenggong (or patriarchal Malay customary Malay law where the men are the head of the family) was the law of the Sultan and originated during the time of the Melaka Sultanate. This customary law was ordained by the rulers/Sultan and later adopted in the other regions of Penisular Malaysia. It was the basis of the laws as found in the Malay legal digests complied between the 15th and 19th centuries. Unlike the case of Adat Pepatih, Adat Temenggong is based on patrilineal (in favour of men in the distribution of inheritance) principles of customary laws and is fundamentally based on Islamic principles (or Hukum Syariah). Adat Temenggong basically holds the same rules on distribution of inheritance as the Quran. This helps to explain what Adat Temenggong is more acceptable by the Malay community. Hence, Adat Temenggong is more favourable to the men when compared with the Adat Pepatih.

In the case of Adat Temenggong, the distribution of the deceased estate/property is as follows:

A daughter is entitled to half of the entitlement of the son (for example, if the son is entiled to half share of the property, the daughter will only be entitled to a quarter share).

If there is no son, a daughter is entitled to half of the deceased’s estate.

If the deceased has two daughters and no son, the daughters will be entitled to two-thirds of the estate in equal share.

The wife or wives of the deceased will be entitled to one quarter of the deceased’s estate if there are no children in the marriage. If there are children, the wife or wives will be eligible to only one-eighth of the estate.

A husband is entitled to half of the wife’s estate if there are no children. If there are children, the husband will be eligible to a quarter of the estate.

The father or mother of the deceased who died leaving children is entitled to one-sixth each of the deceased’s estate.

IBAN CUSTOMARY LAW

The Iban (or Sea Dayak of Sarawak) are the single most populous indigenous group in Malaysia other than the Malays. The Ibans are traditionally riverine people, dwelling in longhouse communities along the main rivers and smaller streams of the interior of Sarawak. At the centre of the traditional social system is the longhouse community which remains even till today. Individualism is highly valued by the Iban but mutual economic dependency exist which is in turn supported by a complex code of social rules or adat. To the Iban, the term adapt covers all of the various customary norms, jury rules and rituals that guide an individual’s conduct and the sanctions and forms of redress by which rules are upheld.

The basic unit of Iban social and legal organization is the bilik (or room in Malay). The Iban longhouse is gathering of independently owned family apartments. Each apartment is known as a bilik which is occupied by a particular family group. An individual is born into a particular bilik, either of the father or the mother, and may also become a member of the bilik through adoption. The adopted person is usually close kin and are considered full members of the bilik.

Regarding inheritance under Iban customary laws, it is based on the membership of the bilik and a person’s sex or status in the family is not the issue. As long as a person remains a resident member of his or her bilik either by birth, adoption or marriage, that person has full and equal rights of inheritance. When a person in the bilik dies, all property he or she has acquired is inherited equally by the surviving members of that bilik which consists of his parents, wife and children, any brother or sister and the children who are still resident members. If a man dies as a member of the bilik into which he has married, all property he had acquired would remain in the bilik which consists of his parents-in-law, wife and children and his wife’s siblings and their spouses and children who are resident members. If a woman dies as a member of the bilik in which she has married, the same rule applies.

Wills are generally not used among Ibans as adapt laws are applied for the disposal of the deceased’s property. In the case of Sat anak/lelaki Akum and Anor v. Randung anak/lelaki Charaeng, it was held that an Iban can make a valid written will and dispose the property which he had acquired during his lifetime. However, certain properties he cannot pass on even though it is mentioned in the will, for example land held under customary tenure if there are heirs entitled to exercise the farming rights.

DUSUN CUSTOMARY LAW

Dusun [1] is the collective name of a tribe or ethnic and linguistic group in Sabah. The Dusun customary laws in Sabah the most well-known codes on customary laws is the collection known as Woolley’s Codes [2] written between 1932 and 1937. Wooolley was the Resident of the Interior for several years.

Under Dusun customary law, there are two types of division property – ancestral property (or pusaka) and acquired property. Ancestral property (or pusaka) includes property inherited from ancestors, which can only be inherited by blood relatives. Acquired property refers to the property acquired before marriage and also that acquired jointly during the marriage. A share of acquired property may be passed on to relatives by marriage. Once it is inherited, it becomes ancestral.

When property is distributed, it always remains in the family and never pass from husband to wife or vice-versa. For property acquired before marriage (pusaka), where there is no issue in the marriage, the husband’s pusaka will devolve (pass on) to his nearest blood relatives. The same rule applies to the wife’s property. The rights of inheritance pass to certain classes of heirs in succession and the existence of any heir in the higher class prevents any claim from the heir in the lower class. The order of priority for the classes of heirs are as follows:

children or their descendants;

brothers and sisters or their descendants;

parents;

collaterals (people with the same ancestors but by a different line of descent) of parents and their descendants;

grandparents;

collaterals of grandparents or their descendants.

Section 1(3) of the Wills Ordinance of Sabah provides that nothing in this Ordinance shall enable any native to dispose of his property by Will in a manner contrary to any law or custom applicable to him at the time of his death. This means that a native can write a Will but it must not be contrary to his native custom regarding the disposal of his property. However, a Will which is contrary to the adapt may still be valid if the headman or heirs consent to its provisions.

Adoption is common amongst the dusun. The formal ceremony is for the adoptive parents to call the headman and all his neighbours and acknowledge the child as their own before them. After this, the child is regarded as a true child and has the rights of inheritance. Adoption can only be revoked with a like ceremony. In the case of Alexander Keasberry v Alina Gomez, an adopted daughter and a natural daughter were equally entitled to their parents’ property.