1

Introduction
Malaysia is a multicultural nation with the demographics consisting of many ethnic groups.
According to a 2010 census, Malaysian citizens composed 91.8% of the population, and of
which the bumiputera were 67.4%
1
. The term bumiputera in here means the indigenous people
from the two regions of Peninsular Malaysia and East Malaysia, including the Malays who
formed the largest community. Additionally, customary laws from various ethnic groups in the
country still bear a certain extent of influence to the nation legal system, in term of regulating
these ethnic groups on some of their tradition matters. Especially the Malays whos own
customary law bears a great amount of influences on their personal life.
Customary law is one of the oldest forms of law that existed until now from ancient times. To
put it that way, this law consists of traditions or customs that bear legal consequences by which
the court will enforce. Most of the time, customary law is only restricted to a single ethnic on
personal level but not a general wide application in a country. Like in Malaysia, the Malay
customary law is applicable only to the Malays; Chinese customary law applicable only to the
Chinese; Hindu customary law applicable only to followers of Hinduism and so on.
The Malays are governed by exactly three laws in Peninsular Malaysia, adat, Islamic law, and
the general law applicable to all communities.
Traditionally, the Adat or Malay customary law played an important role in regulating
personal affairs of the Malays. It also upheld the role of preserving and maintaining the
traditional Malay society for centuries, and the extreme importance of adat in the Malays life
can be glimpsed in the Malay maxim biar mati anak, jangan mati adat, a literal meaning is that
let the child die rather the custom. Probably one of the most critical statements related to adat
and its place in Malay society. How important is adat also is emphasized in this saying: kecil
kandung ibu, besar dikandung adat, mati dikandung tanah meaning that when young,
embraced by mother, when adult by custom, when death by the earth.

1
Population and Housing Census, Malaysia 2010 Population Distribution and Basic Demographic Characteristic
Report 2010
http://www.statistics.gov.my/portal/index.php?option=com_content&view=section&id=21&Itemid=154&lang=en
2

As it was mentioned earlier ago, the applicability of adat is restricted only to the Malay ethnic
group. Practically, there are two types of adat which is the Adat Perpatih and Adat Temenggung.
Adat Perpatih was practiced among the Malays in Negeri Sembilan and Nanning in Malacca,
using the matrilineal system which belongs to mothers lineage, involving the inheritance of
property, names or titles from mother to daughters. Matters such as land tenure, lineage,
inheritance and election of members of lembaga and Yang di-Pertuan Besar were also concerned
with. For Adat Temenggung, it has a wider practice sphere in other states, and instead used the
patrilineal system which belongs to fathers lineage.
The Islamic religion had affected the Malay local customs a lot when it first arrived, and a
systematic Islamic legal system begins during the era of the Malacca Sultanate. Today by Article
121(1A) of the Federal Constitution, dual system of law was conducted in Malaysia, aside from
the general law there is the Islamic law. From Article 3, it was also given that Islamic law is a
state law matter with the exception for the Federal Territories of Malaysia. Islamic law otherwise
known as sharia law, is conducted in the court known as the Syariah Court. When inspecting the
Malaysian legal system, sharia law played a relatively small role in the judiciary, being
applicable only to Muslims. The jurisdiction of the Syariah courts mostly extend to personal law
matters related to Muslims, like marriage, inheritance, and apostasy. On the other hand, sharia
criminal laws are available in some states, for instance the Kelantan Syariah Criminal Code
Enactment 1993.
In short, both Malay customary law and Islamic law are heavily involved with the daily life of
the Malays in Malaysia. Since a long time ago, it is to be expected that these two laws will have
important relation when dealing with personal affairs of the Malays, especially in certain cases.
Like in Shaik abdul Latiff & Ors v Shaik Elias Bux [1915] FMSLR 204, whereas the court held
that: The only law at that time applicable to Malays was Mohammedan Law modified by local
customs.



3

History of Malay customary law and Islamic law in Malaysia
First, what is the meaning is of a customary law? Basically, customary law is the ancient rule of
law for a particular place or locality. Customary law can also be considered as a set of laws or
unwritten laws that has never been enacted by the legislative or promulgated as in a country. The
local Malay term for Malay Customary Law is Adat.
2
Adat is a word borrowed from Arabic.
Adat in general means a right to conduct in a common usage, it stands for a variety of things all
connected with proper social behavior and culture. Thus it connotes rules of etiquette and the
ceremonies prescribed for a particular occasion such as marriage as well as those customs which
have legal consequences.
3

It should also not be forgotten that today in Malaysia, the basis of our customary law is the
Malay customary law that was firstly influenced by the Hindu and later the Syariah law.
Customary law can also be said as a regular pattern of social behavior which has been
accepted by the bulk of a given society as binding upon its members, because such behavior has
been found to be beneficial not only as means of encouraging inter-personal relations among
them, but also as being beneficial for maintaining a cohesive society for their individual and
collective betterment.
4
It means that a custom can also be accepted as binding. Thus, customary
laws are customs which have legal consequences.
Malay Customary Law were applied in the Malay states before the arrival of Islam. The two
main law were the Adat Temenggung and Adat Perpatih. Adat Temenggung were practiced by
all Malay states except Negeri Sembilan which practices Adat Perpatih. Adat Temenggung was
also the base law of almost all Malay legal codes and digest. Such codes and digest were the
Hukum Kanun Melaka and Undang-undang Laut Melaka. Hukum Kanun Melaka covers a wide
range of constitutional, civil and criminal matters while the Undang-undang Laut Melaka covers
maritime matters.
There were two types of Malay customary law. Namely, the adat temenggung and adat perpatih.
Adat temeggung is patrilineal while adat perpatih is matrilineal in nature. What does it mean? It

2
Hasbollah bin Mat Saad, Maizatul Azila binti Chee Din, Mohd Azizie bin Abdul Aziz, An Introduction to Malaysian
Legal History, 271
3
Blog Rasmi Jabatan Peguam Negara, http://agc-blog.agc.gov.my/agc-blog
4
Lakshman Marasinghe, Customary Law as an Aspect of Legal Pluralism, with Particular Reference to British
Colonial Africa, JMCL, 25 (1998): 19-20
4

means that the adat temenggung accentuates men while the adat perpatih focus on women more
than the men. This could easily be seen in their law of inheritance. In adat temenggung, if a
father died, the most part of the deceaseds property would be inherited by men. In adat perpatih,
the one who will inherits the property would usually be the women. Other than that, since adat
temenggung is the law of the sultan, it is autocratic. The punishments under the adat temenggung
is usually gruesome. Adat perpatih relied heavily on circumstantial evidence. Like for example,
in the crime of stealing, if the suspect came home soaked in sweat, he could be convicted for the
crime. Another notable characteristics of the adat perpatih is their unique system of election of
their rulers. It is democratic.
5

The arrival of Islam to the Malay states saw the efforts to accommodate Islamic principles to the
local adat law. This process of Islamization could be seen in the Malay Digests. For example, the
previous Hukum Kanun Melaka were heaviliy influenced by the Hindu and Adat Temenggung.
Being influenced by hindu, the punishments provided under the law was trial by ordeal, which
means that the defendants would have to overcome certain kinds of physical tortures like the
suspects would be drowned in water and who came out from it would be considered guilty.The
coming of Islam saw the introduction of Islamic principles to the law. It starts to cover a wide
area of Islamic Law such as qisas, hudud, diyah, taazir, muamalah, family law and etc. There
are 18 chapters provide penalties under the Syariah Law. Such examples could be seen in its
provisions, for examples, Article 7:2 states that for people who commit stealing, their hands will
be severed. Article 30 states that all goods to be sold in Melaka must be halal and the practices of
riba (interest) is prohibited. Article 5:1:3 deals with law of retaliation (qisas). Article 36:1
provides death penalty for apostates. Article 12:3 provides 80 strokes of cane for people who
commits false accusations of adultery against another without having any witnesses. Article 14:1
provides the procedure for making false accusations, the defendants would have to make an oath
while touching the pulpit of the mosque. Article 15:7 deals with matters concerning of lending
and borrowing of property based on the law Ariyah. Article 28:1 deals with the law of divorce
(talaq), tentative (raji) and the period to remarry after a divorce for women (iddah). Article 40:2
states that offences of homosexuality and bestiality should also be considered as adultery.

5
STPM Study, http://stpm-study.blogspot.com/2013/11/adat-temenggung-dan-adat-perpatih.html
5

Punishments can also be varied at the discretion of the judge. Articles 37:1 deals with law of
witnesses and conditions to be a witness.
Islamic have also made its influence towards the Undang-undang Laut Melaka. However, it
provides regulations of maritime laws so it has lesser Islamic principles as compared to the
Hukum Kanun Melaka. There is only one chapter dealing with Islamic Law. Which is provided
by Article 2:1 which imposes 100 lashes for ghayrmuhsan
6
, and stoning to death if married. So
its basically about adultery.
7

Arrival of Islam have also influence the system of administration of the Malay states. Before, the
Malay rulers were known as raja. They were elevated to the status of devaraja(god king) or semi
divine king. He was considered as living god and incarnation of supreme god in earth. It enables
the ruler to claim divine authority which results the rulers to have absolute legal and political
authority. The coming of Islam saw this system to be abolished. Devaraja was replaced with
Sultanate. Under the sultanate, the rulers were no longer considered as a god or incarnation of
supreme god. He was no longer semi divine. He is a khalifah who is the representative of Allah
in the world. Even though the office of sultan is considered as sacred, he is still regarded as a
normal human being. Before, the succession of the throne was inherited from the father to his
eldest son but the coming of Islam have changed this. Under the Islamic influence, the senior
officials elected the sultan. There is also this tradition where If a ruler puts any of his subject to
shame, that shall be a sign that his kingdom will be destroyed by Allah. Likewise, Allah has
granted that Malay subjects shall never be disloyal or treacherous to their rulers, even if their
rulers inflict injustice upon them. It means that only Allah have the rights to punished the rulers
and not the subjects. This was later enforced by the concept of daulat-derhaka. If any of the
subjects go against the sultan, the subjects will experience tulah(curse) and those punishments
were usually gruesome.
8




6
A bachelor, a people who does not married yet
7
Hasbollah bin Mat Saad, Maizatul Azila binti Chee Din, Mohd Azizie bin Abdul Aziz, An Introduction to Malaysian
Legal History, 88-90
8
Wan Arfah Hamzah, A First Look At The Malaysian Legal System, 19-21
6

Practice of Malay customary law and Islamic law
Up to today, the Malays are still following the Malay customary law
9
or also as known as the
adat law. The Malay customary law is an unwritten law or can be said as code of behaviour that
governs the Malay society. The Malay customary law that is practiced in our country, Malaysia,
now is a mixture of the Malay adat and the Shariah law. This is because some of the Malay adat
were ingrained with the Islamic teaching when Islam entered the Peninsular Malaya.
The main Malay customary law are the Adat Temenggung and the Adat Pertpatih. The former is
more favourable to men is practiced in all state in Malaysia except Negeri Sembilan and Naning
in Malacca whereas the latter is more favourable to female and is practiced in Negeri Sembilan
and some of in Malacca where the majority of them are Minangkabau. The Adat Temenggung is
more acceptable among the Malays compared to the Adat Perpatih. This is because the Adat
Temenggung is in accordance to the teaching of Islam in the Al-Quran.
The Adat Temenggung practices the inheritance of property of deceased based on the Islam law
called the Shariah law where:
1) The son is entitled to inherit a ratio of 2/1 from the daughter.
2) If there is no son, the daughter is entitled half of the estate.
3) If there is no son, but only two daughters, both daughters are entitled to 2/3 of the estate
in equal share.
4) If the husband and wife(s) do not have any children, the wife(s) is entitled to 1/4 of the
estate of decease husband. In the other hand, the husband is entitled to 1/2 of the estate of
decease wife(s).
5) If the deceased has children and parents, the parents are entitled to 1/6 of each of the
estate.
The Adat Temenggung did also mention about the distribution of property after divorce which is
divided into three which are the Harta Pembawa, Harta Dapatan and Harta Sepencarian. The case
that can be referred to regarding this matter is the case of Boto binti Taha v Jaafar Bin

9
A First Look at the Malaysian Legal System by Wan Arfah Hamzah pg. 175
7

Muhamed
10
. In this case, the parties were married in 1966. At the time of marriage, the plaintiff
(wife) worked as a coffee-shop assistant and the defendant (husband) carried on a fishmonger
business in Dungun. The business of the defendant then prospered and during the marriage, he
bought the matrimonial home, a land, 4 fishing boats, fishing nets and fish stall. However, a
divorce broke out in 1974, the plaintiff claimed against the Harta Sepencarian that her husband
had purchased. The court held that movable properties can be placed under the provisions of the
matrimonial property even she did not give financial contributions to the husband to buy the
property, but the plaintiff has many times accompanied her defendant when he went fishing in
the sea together . This is enough to count as a contribution in buying the property in the event
of a dispute . Although the plaintiff did not participate directly in the fish business for her
defendant , the presence of the defendant caused peace of mind that allowed it to manage the
business effectively.
The Adat Perpatih
11
however is not very acceptable as it is in conflict with the Islamic teachings.
The ancestral properties are only vested in women and men have no rights in the ancestral
properties. The ancestral properties are considered belong to a clan, not individual and the
females are considered the guardian of the land. The mothers property will be pass to the female
inheritor, no matter whether or not the predeceased their mother. A man is considered in his
mothers tribe when he is still unmarried and in his wifes tribe when he is married to his wife.
However, an unmarried man has the right of life occupancy over the property of his mother.
The case that can be referred regarding the position of ancestral land according to Adat Perpatih
is the case of Munah v Islam
12
. In this case, a certain land was transferred outside of the Tiga
Nenek clan. The court ordered for the said land to be returned to the rightful inheritors, Isam,
conditional upon payment of a sum of money.
Although the Adat Perpatih is not acceptable by majority of the Malays, it is however still
practiced in Malaysia, to be specific, Negeri Sembilan and some parts of Malacca until today. In
the lives of the Negeri Sembilans royal family, the Adat Perpatih is still relevant today. The
hereditary monarch of Negeri Sembilan is other than the rest. It is unlike the hereditary monarchs

10
[1985] 2 MLJ 98
11
What is Customary Law? http://ironwills.com.my/what-is-customary-law.html
12
[1936] MLJ 42
8

of other royal Malay states. For instance, one of the distinction is that the ruler of Negeri
Sembilan or also known as Yang di-Pertuan Besar is selected by the ruling chiefs who lead the
Sungai Ujong, Jelebu, Johol and Rembau.
Other than that, in laws pertaining inheritance, when a Muslim dies there are four duties, which
need to be performed. These are, the payment of funeral expenses, payment of his/her debts and
payment of his/her and also the distribution of estate amongst the heirs according to Shariah.
Firstly, it is assumed that the preliminary issues have been resolved and we shall confine
ourselves principally to discussing the fourth and last duty. The task is to firstly, determine
which of the relatives of the deceased are entitled to inherit and secondly, to determine the
quantum share entitlement of each of the heirs concerned.
The particular importance of the Islamic laws of inheritance is obvious from the verses
immediately following those verses giving specific details on inheritance shares, "These are
limits (set by) Allah (or ordainments as regards laws of inheritance), and whosoever obeys Allah
and His Messenger will be admitted to Gardens under which rivers flow (in Paradise), to abide
therein, and that will be the great success.
And whosoever disobeys Allah and His Messenger, and transgresses His limits, He will cast him
into the Fire, to abide therein; and he shall have a disgraceful torment." [Quran 4:13-14]
The laws of inheritance take on an even greater prominence in Islam because of the restriction
placed by Sharia on the testamentary power of the testator, as we shall see later in this article.
The divine justness and equitability of the Islamic laws of inheritance have been correctly
appreciated by many non-Muslim scholars such as Professor Almaric Rumsey (1825-1899) of
King's College, London, the author of many works on the subject of the Muslim law of
inheritance and a barrister-at-law, who stated that the Muslim law of inheritance, "comprises
beyond question the most refined and elaborate system of rules for the devolution of property
that is known to the civilised world.
1
"
To understand the Islamic laws of inheritance as a whole it is necessary to consider the system of
inheritance that operated within the Arabian peninsula prior to the revelation of the Quranic
injunctions on inheritance. Although we do not have the exact details of the system that operated
9

prior to the Quranic revelations we do know that the system of inheritance was confined to the
male agnate relatives ("asaba") of the deceased. In this old customary system only the male
agnates (asaba) were entitled to inherit. Amongst the male agnates there were rules of priority,
which determined which of the surviving male agnates were entitled to inherit. It is likely that
the rules of priority that operate amongst the asaba in Sharia are a carry-over of the old
customary agnatic system. In Islamic law the son takes priority over the father who in turn takes
priority over the brothers who in turn take priority over the paternal uncles.
As we shall see the Quran does not expressly state the share of the male agnate relatives as such,
although it does enact that the share of the male is twice that of a female. The Sunni jurists take
the view that the intention of the Quranic injunctions was not to completely replace the old
customary agnatic system entirely but merely to modify it with the objective of improving the
position of female relatives. The Sunni Islamic law of inheritance is therefore, an amalgamation
of the Quranic law superimposed upon the old customary law to form a complete and cohesive
system. The rights of the asaba were recognised by the Prophet Muhammad (SAWS) himself.
Abdullah ibn Abbas (RA) reported that the Prophet Muhammad (SAWS) said, "Give the Faraid
(the shares of the inheritance that are prescribed in the Quran) to those who are entitled to
receive it. Then whatever remains, should be given to the closest male relative of the deceased."
(Sahih al-Bukhari)
"Allah commands you regarding your children. For the male a share equivalent to that of two
females. " [Quran 4:11] This first principle which the Quran lays down refers to males and
females of equal degree and class. This means that a son inherits a share equivalent to that of two
daughters, a full (germane) brother inherits twice as much as a full sister, a sons son inherits
twice as much as a sons daughter and so on. This principle is however, not universally
applicable as we shall see later in verse 4:12, the descendants of the mother notably the uterine
brother and uterine sister inherit equally as do their descendants.
"If (there are) women (daughters) more than two, then for them two thirds of the inheritance; and
if there is only one then it is half." [Quran 4:11]
In this context, women refer to daughters. The Quran gives the daughter a specific share. In legal
terminology the daughter is referred to as a Quranic heir or sharer (ashab al-faraid). The Quran
10

mentions nine such obligatory sharers, as we shall see later. Muslims jurists have added a further
three by the juristic method of qiyas (analogy). So in Islamic jurisprudence there are a total of
twelve relations who inherit as sharers.
If there are any sons the share of the daughter(s) is no longer fixed because the share of the
daughter is determined by the principle that a son inherits twice as much as a daughter. In the
absence of any daughters this rule is applicable to agnatic granddaughters (son's daughters). The
agnatic granddaughter has been made a Quranic heir (sharer) by Muslim jurists by analogy.
Umar ibn al-Khattab (RA) by systematically applying the rules gave the Quranic heirs their
shares, husband (1/2), mother (1/6) and the two uterine brothers (1/3). The two full brothers
acting as residuaries received would have been the sole heirs under the old customary agnatic
system, argued that even if their father was a donkey or a stone cast into the sea and they had no
paternal relationship, they still had the same and equal relationship with the deceased as the
uterine brothers through the same mother. Umar ibn al-Khattab (RA) reconsidered his ruling and
allowed the full brothers to inherit equally with the uterine brothers in the share of 1/3.
Another example of Malay customary law is marriage. The marriage practices in
Malaysia consist of religious obligation and cultural practices. As the Malays are mostly
Muslim, the wedding ceremony will be performed according to the Islamic principles.
The traditional Malay wedding is usually conducted in two parts which is the first one is
called the akad nikah (marriage contract) and the other one is called the bersanding
(enthronement). Akad nikah is the moment when the wedding is being legalized in a
religious manner, while bersanding is a family celebration. While the akad nikah
session is done in a very low-profile manner (its usually done at a mosque), the
bersanding session might be elaborately celebrated and cherished.
As a conclusion, when it comes to Malay customary practices and the shara, practices
that does not go against the shara is permissible and continue to be practiced. As for
the rest of the cultural practices that does not comply with the shara, though still
practiced by few, has lost popularity and will later vanish.

11

Bibliography
1. Population and Housing Census, Malaysia 2010 Population Distribution and Basic
Demographic Characteristic Report 2010
http://www.statistics.gov.my/portal/index.php?option=com_content&view=section&id=2
1&Itemid=154&lang=en
2. Hasbollah bin Mat Saad, Maizatul Azila binti Chee Din, Mohd Azizie bin Abdul Aziz,
An Introduction to Malaysian Legal History
3. Blog Rasmi Jabatan Peguam Negara, http://agc-blog.agc.gov.my/agc-blog
4. Lakshman Marasinghe, Customary Law as an Aspect of Legal Pluralism, with Particular
Reference to British Colonial Africa, JMCL, 25 (1998): 19-20
5. STPM Study, http://stpm-study.blogspot.com/2013/11/adat-temenggung-dan-adat-
perpatih.html
6. A First Look at the Malaysian Legal System by Wan Arfah Hamzah
7. [1985] 2 MLJ 98
8. What is Customary Law? http://ironwills.com.my/what-is-customary-law.html
9. [1936] MLJ 42