Native Customary Law Case Study

Question 2:

Even though both common law and civil law is used widely in the world, some countries or cultures still retain their native customary law in addition to either the new common or civil law. Native customary is, by definition, intrinsic to the life and custom indigenous peoples and local communities. One of the countries and cultures with surviving native customary law to this day is the Malaysia.

Custom law, it is named as Adat in Malay term. It is an unwritten law in Malaysia. Custom law is more concern on personal status, for example land-holding and inheritance. Previously, custom law does not make by legislative authority. In Malaysia, custom law has separate in four classifications, which are Adat Pepatih, Adat Temenggong,

Abdul Jalil (1958) MLJ 10, where a divorce wife able to claimed half of her husband property because of Adat Perpatih.

ii.) Adat Temenggong History wise Adat Temenggong are originated from Sumatera and brought in by Datuk Ketemenggungan in early 15th century and are enforced on all Malayan state except Sembilan which they enforced Adat Perpatih. Adat Temenggong are more oriented to male side of the family, example are men are the head of a families and the right of inheritance in name or financial in male, like fathers to sons (based on patriarchal). Furthermore Adat Temenggong are an autocratic systems, which means there are bureaucracy or hierarchy of powers, and also a person works inside the government are normally appointed their own and which gave them power to do different job scope, such as Syahbandar which handles businessman or ships or Temenggong which job scope on crimes. In Adat Temenggong, punishment are harsher compared to Adat Perpatih as one man committed wrong will be punished like death penalty. They are more believed in deterrence where they believe punishment is the ways of stopping people to commit crimes. iii.) Iban Custom

Randung anak/lelaki Charaeng, where the properties cannot passed on even has mentioned in will, iv.) Dusun Custom Law

The largest native group in Sabah, as well as Kadazan. It is collection known as Woolley’s Codes written between year 1932 to 1937. There have 2 categories of division of property, which are ancestral property and acquired property. Ancestral property has stated that property from ancestors can only be inherited by blood relatives. However, acquired property can be obtain before marriage and obtain joint during marriage. Acquired property can be passed to relatives by marriage. When it is inherited, it will become to ancestral.

After property has assigned, it will always remain in family and never ever pass from husband to wife, or vice versa. When the property has obtain before marriage, husband’s property will pass to his nearest blood relative, same goes to the wife’s property. There have classes of heirs to prevents any claim from heir which in lower class, the priority of classes of heirs as follows:

-Children or their later