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The Sources of Law and Legal System of the Malays

Emel Cetak PDF
There are no translations available.

1.1. 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.C. 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. In the words of Sir Roland Braddle, "When certain lights upon the history of the Malay Peninsular we shall find that it can only be understood as a part of the general history of South- Eastern Asia of Father India as it is called".

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.

The law i.e Hindu Law which finds its sources in the Dharmasutra (law books in prose), Dharmasastra (law book in verses) and Hindu customary law contains an extensive legal system. 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.

1.2. Islamic influence in the Malay world

During the 14th country Malacca raised to 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. Tome Pires declares that "Malacca is of such importance and profit that it seem to me that it has no equal in the world - Malacca is a city made for merchandise fitter than any other in the world.

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. Some Arabic Moors, Persian as well as Bengalis who used to trade in Pasai moved 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. 11The Islamic missionaries in Malacca then tried very hard to convert the Sultan to Muslim and at last Sultan Iskandar Shah with all his house turned Muslim. 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 king 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 the 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). The heroes of Hindu epic like Sri Rama, Laksamana and Arjuna was replaced by a fixatious picture of Alexander The Great as a fore runner of Prophet Mohammad and Malay Rulers who had been the incarnation of Indra and Vishnu were made descendants of a Macedorean man god through the Kings of Persia. 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 sayings in Negeri Sembilan shows considerable Islamic influence.

Islam indeed was welcomed because not only did it free the Malays from the oppressive stratification of Hinduism and absolute power of the Hindu ruler but also change the ideological aspect of the community. Instead of being a subject 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.

1.3. 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:

"A social norm is a customary mode of
behaviour - it is what people in a
given society are expected by their
fellow members to do, not only because
such behaviour is usual but also because
it is deemed good. 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. Economic sanction such as
refusal to cooperate in economic
activity and political sanction such as
the depriving of an elected person of
one's support and vote may be applied.
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.

As being defined by its common usage "adat" will connote a code of behaviour and social etiquette governing the Malay society. 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 to 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 over different parts of Minangkabau. while the former rule the hilly inland region, the former govern the coastal region. Why Dato Pepateh insisted upon matriliny and exogamy for his followers while Dato Ketenmenggungan was inclined to patrilineal descent 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 in 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 Palembang 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 was 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 in 1908, he 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.

1.3.1. The nature of Malay law

Malay laws were never committed to writing, they were constantly overriden by autocratic chiefs and unjust judges, they varied in each state, they did not harmonized with the doctrine of Islam that they professed to follow, they were often expressed in methaphores or proverbs that seemed to baffeled interpretation. Although there are so called "codes" such as Malacca codes, one must bear in mind that these so called "codes" were never actually enacted by any legislative authority. They are only digest of Malay laws. There is a great difference between a digest and a code. A digest may give a very faithful picture of its subject but not he actual laws. These published laws are interesting and valuable because of the evidence they give of the legal theories that underline the adat but they possessed the authority of an enactment.

These unwritten laws especially the sententious saying that has been handed down by oral tradition however have the full force of public opinion behind them, reference to them is sufficient to compel even an unjust judge to do justice to the litigants before him. In other words, these tribal saying derived its legal characteristic because it is the expression of an instinctive sense of right and the common consciousness of the people.

1.3.2. Administration of the adat

The Malay in general is not a litigious person. When he happens to be a litigant, he appears to be unhappy about it. This traditional character even exist until now. When conflict arises the injured is made whole by applying the customary remedy which in most cases, especially in adat pepatih society consist in awarding compensation. This method is express in a saying:

The injured is made whole.
The target is made straight

Arbitration pays a very important role. Petty disputes were referred for arbitration to the village elders. Only when failed or when the dispute was serious enough to require stronger measure were the services of the lembaga sought. The judges were usually the village elders or the chiefs of the clans who uphold the norms of their society. As they are not bound by precedent though a precedent may have a great persuasive authority, they can reinterpret the adat in such a way to suit the present day conditions. One must note that the interpretation has not been developed into an esateric science so there will be no serious objection to reinterpretation which is intended to keep pace with the time.

One acting as a judge will proceed carefully and cautiously, he will retrace his steps when his line of inquiry has been found wrong. This code of procedural behaviour can be found in the perbilangan (proverbs).

Astray at the end of the track
Back to the start of the track
Astray at the end of the talk
Back to the start of the talk

A method of inquiry that is discountinuance by the adat is that of insufficient discrimination and is describe as judgement of the thrusting fish trap (hukum serkap), for a core shaped trap when thrust down in shallow water may enclose indiscriminally a myriad catch of fish.

Under the adat, circumstantial evidence is preferred to oral evidence tendered by a witness. On why this method is chosen is not precisely known however it is suggested that since most of the perbilangan stating the law of evidence derived its meaning from circumstantial happening or circumstantial experience gone through by the community, the tendency to rely on circumstances that lead to an even was given priority over direct evidence given by a witness. These system has no doubt proved to be ineffective in the administration of justice. It cannot bring justice by operating under such traditional community which hold tightly to the metaphysical beliefs. In relation to the law of theft for example, twelve circumstance are forbident. They range from being found with booty snatched on stolen by force or being found with flittring heart. In the reliance placed on circumstantial evidence, it is probable that mere coincidence will be mistaken for cause and effect. This kind of evidence derie its interpretation from a "perbilangan".

The branch breaks as the hornbill pases.

The only rationale explanation on the priority given to the circumstantial evidence may have been that man should be encourage to walk warily avoiding suspicious proximities. After all adat is approved behaviour apart from its customary law. This code of behaviour is also being expressed in the "perbilangan".

Rub against the stem of a bamboo and you itch.
Shake it and you are sprayed with moisture.

The compensation to be paid for a wound would vary according to the intensity of the provocation and also to the place where it was inflicted. Restitution rather than retribution was the keynote of the human administration of criminal justice under the adat. But this statement should not be taken to imply that all offences were compoundable. Incest for example was punishable by death.

Since the adat derives its validity from the common conciousness of the people there should be absolute unanimousity for every decision. The imposition of a decision of the majority might leave the minority discontent, while a unanimous decision would make everyone feel a sense of harmony, a feeling of belonging together. This requirement of unanimousity was probably desirable and certainly effective during the days of close knit clan organization. This system of doing what is proper to make everyone happy in the name of harmony and not doing what is right has proven to be a detrimental factor to the Malays especially during the colonial days and the migration of the Chinese and Indians into the country.

1.4.1 Adat pepatih

Only comparison with the despotic law of other states of Malaya can explain why in Negeri Sembilan the matrilireal customary law lived as a magna carta in the hearts and memories of the Minangkabaus it had saved for centuries from oppression. 28 It is because in the other states where the adat law is not clear, justice were often in the hands of the rulers. This had led to constant oppression by the ruling class. Adat pepatih on the other hand has provided a democratic constitutional structure to some extent in order to safeguard justice compared to adat temenggong. In other words the adat pepatih is more organized so as to win the heart of its followers.

Adat pepatih finds expression in traditional verses and sayings of the matriarchal tribes in Negeri Sembilan. The sayings were handed down from generation to generation and are known to everyone and the ignorance of law cannot be an honest and valid excuse. The sayings are simple and can be easily memorised. There may be variety of meanings attributable to some of them. The interpretation of these sayings appears to be less difficult than the interpretation of a statute in common law court; for the interpretation of the sayings along with the significance of the metaphores or other figures of speech contained in it is handed down from generation to generation. This recource to what one might regard as prepatory work to the enuciation of the rules makes the saying not unduly difficult of understanding.

1.4.1. The nature

Before we can examine the adat as a whole, we have to study the matriarchal units, of which the population is made up. Tribal descent goes through women - a man is a member of his mother's tribe until by marriage he is received into his wife's. Land can be owned by women only. Women may not travel; the husband settles in his wife's village - not the wife in the husband's. Exogamy is insisted on. The effect of these curious rules is not to be realised without some thought.

Let us supposed a small party from a tribe settle in Naning. The daughters of the original settlers would belong to the same tribe, she would possessed all the land and would continue to reside in the same place. The sons would be compelled to marry into other communities and leave their native homes and to take abode in the houses of their wives. It seemed that the husband will possesed nothing except what he earns but it is only in theory because property will go to his daughters and his son will go through the same process that he has gone through, in the end the property will always be preserve in the matrilineal lineage.

As a result, the women of a family group (perut) constitute a powerful and united body, banded together by the band of common descent, sharing a common tradition and owning all the property. Their husbands, of men of the community, are a non descript crowd, draw from many different tribes and villagers not united by ties of blood and not owning any of the property. In such settlement the position of women is immensely strong one. 32 A saying will illustrate the situation.

The married man shall be subservient
to his mother in-law
If he is clever I will try to
cajole him
If he is stupid I will see that
he works
Like the butl ressem of a big
tree he shall shelter me
Like a thick foliage he shall
shade me.

This passage bears rather amusing testimony to the power of "wife's relations". Although it seemed to prejudice the men in Negeri Sembilan, common justice ought to make us recognised that the system worked well. Compared to other states, the Malays in Negeri Sembilan are the most industrious, most intelligent and most artistic. They owe these qualities largely to the pressure put on them by "the wife's relation". To the communal system they also owes the merits of their laws.

1.4.2. The constitutional structure

Government in such tribal organization of matriarchal structre is in the first instance in the hands of the family heads, then in the hands of the heads of the sub-tribe (perut) who is called "buapa", the tribal chiefs (lembaga), the territorial chiefs (undang) and finally the ruler who in fact is only nominally a Ruler. The buapas are elected by the family heads, the lembagas by the buapas, the undangs by the lembagas and the ruler by the undangs. The rulers were appointed from the royal house.

The ruler's powers were limited. He was the fountain of justice but the great chiefs executed his justive as they think fit. All executive authority lays with the great local chiefs. However this authority did not operate absolutely. The adat lays down certain procedure to organise these power. It define the position and precedence of the minor chiefs as well, it settle their powers and it covered the whole of what we may termed court etiquette.

Petty disputes are judge by the buapas, more important matters by the lembagas while capital offences came before the undang who has full authority. This system resulted in a gradded jurisdiction which gave every official judicial power beyond which he was not permitted to act. A first offender was in the first instance judge by his own people and only when a person is rejected by his own family then only there will be no other choice but to kill, banish or enslave him.

The chiefs could not initiate attack on an individual. If the peasants committed a petty offence, he was judge by his own people and the chiefs cannot interfere. If he was charged with a graver crime he was heard by his own people and if a prima facie case was made out against him, he will be handed over to the higher authorities for trail. The territorial chiefs could not proceed against anyone except the tribal headmen nor was he strong enough to attack any single lembaga unjustly in face of opposition that such a proceeding would arouse among the rest.

In such society when the family is responsible for its members, penalties like imprisonment and mutilation would only mean extra burden to them and so adat pepatih aims at restitution and compensation of the injured rather than punishment of and revenge on the culprit. Even when a victim dies adat pepatih seek to restore the loss of a breadwinner by compelling the killer's tribe to substitute one of its members or pay blood money instead.

In spite of the good points of this constitution there were two imperfections that were never mended. First of all there was the basic principle that for every election and every decision, complete unanimity is required. This can be illustrated in the saying that:

As a bamboo conduit makes a round
jet of water.
So taking council together round
men to one mind
.

Unanimity is obviously a survival from early days of family rule but though they have long since outgrown family rule, the Minangkabau have never learnt to bow to the decision of the majority. Minorities always broke away and create civil strife.

Secondly, the chief in Negeri Sembilan were never actually united. This had caused the lacking of power on the part of the chiefs. In order to enforce their decrees they must have enough power and be feared.

The big territorial chiefs who professed the matrilineal system in its entirely never merged their individual interest in those of the federation. Except in the face of a foreign aggressor each state was self sufficient, so that until the days of the British protection the territorial chiefs never met regularly in council with the ruler as each one of them met in council with his own tribal chiefs. The British creation of a council for the nine states of which the ruler is President and the undangs are members put the coping - store on the Negeri Sembilan Constitution.

1.5 Adat temenggong

Coming from the same cradle as the adat pepateh, but changing its character under Hindu influence, adat temenggong found its way to the Peninsular via the sultanate of Palembang and Malacca, from which the other Malay states are more or less derived. Evidence of this common matrilineal source still shows in the laws of property and inheritance of lands in such autocratic states such as Perak, Pahang and Selangor which are identical with those in Negeri Sembilan. The rules in Perak and Malacca law digest on acquisition of lands those in Negeri Sembilan. Adat constant and coherent system. are also similar to temenggong was not a It simply represent the old Minangkabau jurisprudence - the true laws of the Malays - in a state of disintegration after many centuries of exposure to the influence of Hindu depotism and Islamic laws.

The adat temenggong was administered on autocratic lines. It was not the common concern of the people. It is a command of the sovereign backed by sanction. It has not become the property of the many but vested in a few chiefs. According to adat temenggong the laws were in the lands of the rulers assisted by his Bendahara (Prime Minister), the Temenggong (Chief of Police) and several Menteri (Ministers) while outside territories were administered through Mandulika (Governors). Each of them in addition to their specified function had far reaching judicial powers only limited by the latter's endurance. Court intrigues were a favourite pastime and rivalry amongst the chiefs caused sudden political charges. Everyone had to find himself a protector and this system of non seperation of powers has given a wide room for corruption and cruelty. The law become uncertain or indefinate from the moment the rulers and judges did not like to see their discretion fettered by any inconvenient rules and regulation. In the absence of precise rules, common sense came to be regarded as the only possible law, discussion as the only possible procedure. Sometime the state of the society itself had not reached the point at which it would be advisable to define more particularly the offences that the chief was empowered to punish. In addition to that the whole spirit of autocracy is hostile to strictly define system of law. This is because the upper class want to preserve their status and power. As the result of it the mases was continued to be oppressed.

Although there are some so called written law such as the Malacca Codes and Perak Code but these digest cannot reflect that the laws has been clearly define bacause sometime their authorities were often subject to the absolute power of the ruling class.

1.5.1. Constitutional structure

A Malay ruler is personally sacred. He is the source of honour and the fountain of justice. The peasants had no right whatsoever. The ruler could do whatever seem best in his own eyes. There was no separation of powers and often the absolute power of the ruler corrupt absolutely. They continued to oppressed the mases. One important point to note about the Malays are although they are being oppressed, it had become a duty to the mases to obey the ruler however cruel he may be. It has become a way of life. If one trace the history of the Malays there seem to be few rebelion against the ruler. Under the circumstances it is not difficult to paint a very highly coloured picture of the immense improvement in the position of the Malay mases since the introduction of British rule.

The system of government in the Malay sultanate clearly did not lend itself at any time to a proper administration of justice. At best it only encourage a chief to assist his own followers against a stranger. It never put a premium on the chief doing justice to a stranger at the cost of his own men. Litigation - in cases where the litigants did not take the law in their own hands, it become a matter of diplomatic negotiation between the nobles who championed either side. This has resulted that every citizen had to find a paid patron or protector. Such a system had encourage bribary and blackmail.

If a commoner was wronged, he leave it to the chiefs to take up his case, if nothing was done he will probably take the laws into his own hands. This often led to a continued fight between the litigants and the wrong doer. But the worst feature of adat temenggong system was the employment of bullies who were ready to committ any crimes in their masters interest. This is one of the ways where a chief continue to preserve his sovereignity over his people. On how this situation change and the influence it had on the Malay community today will be further discussed in Chapter 4.

1.6. Adat pepateh and adat temenggonq distinguished

Adat pepatih was an extremely mild system of laws, lenient to the first offender and always ready to condone a wrong if due restitution was made. The family are responsible for the conduct of its members. The influence of the family will be used to pressure the criminal to amend his ways. By these means the adat pepateh tries to balance between leniency and undue tolerance of crime. Only when a man is rejected by his family then the law will be severely impose.

Taken all in all the adat pepatih may claim great merits as a system of law, it was just, humane, it tolerated no delay in criminal matters, it secured compensation for the injured, it never brutalise or degraded the first offender and is understood by all.

The adat temenggong was different. The interest of the Malay chiefs lay in the director of exacting heavy fines, slavery and vindicating his authority by the cruel punishment of any man who dared to gainsay him or disregard his command. The justice to the adat temenggong was a cruel and pityless hi justice. It seek to deter than reform. When compared with the English law, the adat temenggong seem very faulty indeed, it was crude and primitive in its legal theories, uncertain and unmethodolical in its pronouncement, cruel and brutalising in its punishments.

Written By:
Azman bin Abu Hassan
Head of Prosecution
State of Perlis

Pemutakhiran Terakhir ( Isnin, 04 Januari 2010 17:48 )  

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