Vous êtes sur la page 1sur 10

Introduction

Malay customary law or adat ( a word borrowed from Arabic). Adat generally 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.1

It has been said that: 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 ones support and vote may be applied.

1 The Sources of Law and Legal System of the Malays : blog rasmi Jabatan Peguam Negara , Azman bin Abu

Hassan Head of Prosecution State of Perlis

Adat Temenggong
Dato Ketemenggungan is the one who brought the Adat temenggong, who was born to a royal father and the traditions associated with him emphasized patrilineal descent and patrilocal residence.2 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. In other words, adat temenggung is the mere variation of adat Perpateh which also developed from the adat perpateh in Palembang and Srivijaya from where it was introduced the Malay Peninsula, together, with the entire Palembang customs and culture. The reason why the adat perpateh stood unchanged in the Minangkabau highlands in Sumatra, while it was affected by profound changes in Palembang, can be explained by its exposure to Hindu and later Muslim influences. Due to these influences , it changed from a system matrilineal and democratic to one patriarchal and despotic. Yet, as these influences did not operate evenly throughout the Malay Peninsula, the adat temenggong in some areas exhibit some matrilineal element. 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.3

2 3

Eddie C.Y Kuo & Aline K. Wong, 1979 Contemporary family in Singapore. 1979 Singapore University Press page 90 Adat perpateb seems to be the original form of the adat. It is supposed to have been the law of the Minangkabau people, who lived in the highlands of Sumatra at the beginning of the Christian era. It flourished also in South East Sumatra and in Java prior to the foundation of the Palembang State (Sri Vijaya) in about the 7th century. The strong Hindu influence exercised on it from the arrival of the Indians in the beginning of the Christian era culminated in the palembang State (Sri Vijaya) and was responsible for the formation of the adat temenggong, which gained ground throughout the entire Malay Peninsula. Adat perpateb was, however, continuously applied in the Minangkabau (Padang) highlands in Sumatra, from where it was brought to Negeri Sembilan by Minangkabau settlers in the 15th and 16th century. See R. J. W i 1 k i n -son, Papers on Malay Subjects, Kuala Lumpur, F.M.S. Government Press, 1908, Vol. 2, Pt. 1, pp. 2, 8. Richard 0. W i n d s t e d t, A History of Malaya, Singapore, Marican &Sons, 1962, pp. 29-43, 155. Patrick Edward de J o s s e I i n d e J o n g, Minangkabau and Negeri Sembilan Socio-Political Structure in Indonesia, Leiden, Eduard Ijdo, 1951,pp. 7-9

Characteristics of Adat Temenggong


In Adat Temenggong, in the men's families have the right to inherit the properties then became formally prescribed within Hukum Faraid (Muslim law pertaining to the inheritance vis--vis all forms of acquired property including lands which are outside the purview of the traditional tanah pusaka4 rails from descendants of the men Men also serves as the head of the family

Marriage

In the custom of marriage Temenggong allowed anyone have the original there is no relationship if divorced with three pronouncements can refer back after his wife divorced by her new husband forbidden to marry by religious differences.

Marital status

In the custom of marriage Temenggong allowed anyone have the original there is no relationship if divorced with three pronouncements can refer back after his wife divorced by her new husband forbidden to marry by religious differences

, Eddie C.Y Kuo & Aline K. Wong, 1979 Contemporary family in Singapore. 1979 Singapore University Press page 90

Criminal law Use the principle of retaliation. However, it was common for a more lenient punishment to be imposed Area of evidence which Islamic law requires a specific number and quality of witnesses; this clashes with the customary evidentiary rules which rely on circumstantial evidence.5

In the adat Temenggong was given administrative privileges administration headed by the King or Sultan, aided by certain chiefs and princes of the specific positions at the regional level sultan to appoint chiefs the head of the lowest ranks of the Village Head serve as a symbol of the sultan perpaduan between the people and heads of state sultan's son is heir to the throne if there is no son, his brother would inherit the throne of the sultan if both the above, then the Bendahara will be the sultan administrative decisions made in meetings between the sultan with the magnifying

Ahmad Ibrahim & Ahilemah Joned 1995 (The Malaysian Legal system. Kuala Lumpur. Dewan Bahasa dan Pustaka page 39

Legislation 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 separation 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.

Application of Adat Temenggung in Melaka


In Melaka Adat temenggung was ordained as the law of the Sultan and formed the basis for the law as found in the Malay legal digest, such as the Undang-undang Melaka. The appointment of High Dignitaries According to Undang-undang Melaka which adapted from Adat Temenggong provided that : Every ruler must appoint high dignitaries to act on his behalf so that he need not concern himself with trivial matters6

Sultan Bendahara Temenggong Penghulu Bendahari Syahbandar

Khoo Khay Kim, Malay Society Transformation & Democratisation .Pelanduk Publication. Page 26

King - was selected by descent from the male line. Justice could not be achieved merely by depending on the character of the reigning monarch. Therefore, the officials, especially the Bendahara, would assist the ruler to ensure a just administration and control of the state. Collective decisions were regarded more superior to individual ones. Bendahara was given a jurisdiction over the one who holding office and those who rank tuan, the sida-sida (court officers) and the children of high dignitaries. Temenngong- have jurisdiction over crimes committed in the country, investigate crime Penghulu bendahari or Treasurer take care of the Rajas clerk and servants and his duties confined very much to the palace. Syahbandar- is given jurisdiction all matters concerning foreign merchants and traders, orphans and all who suffered injustice. Then, took care of regulations pertaining to junks, boats and other vessels. The Melaka tradition emplaced heavy responsibilities on the high dignitaries. It is already stated in Undang-undang Melaka that : ..even if the rulers be just, if he has no ministers or judges to carry out, his justice cannot take any effect.. Furthermore, Fang (1976:64) states that the injunction in the Undang-Undang Melaka ruled that Melaka should be governed in accordance with the Quranic law: Concerning all the ministers and the sida-sida (court officers) and the fighting men, they should act in accordance with the words of Allah Most High in the Quran; they should obey the command to dogood and the injunction forbidding to do evil The command shows that not only the idea of the sovereignty was determined by Islamic thought, but also the administration and settlement of legal disputes among citizens contained the Islamic elements. By reinforcing the idea of the divinity of the Sultans (Muslim sovereign) who were often described as the Shadow of God on Earth, they attained strong influence over their subjects, thus made it possible to apply Islamic law over them.

Criminal Penalties Murder was regarded as another very serious offence. An order of execution was the exclusive prerogative of the ruler.In Malacca, according to the Sejarah Melayu, Sultan Alauddin Riayat Shah was quoted as saying that no Malay should be killed, no matter great the crime. Hdwever, an execution was permissible if the crime involved high treason. Clearly no one would like to lose their life so easily, if treason was not regarded as a major offence7. The Bendahara, Temenggong and Syahbandar were allowed to kill without the authority of the ruler and one of the other officers entrusted within the authority to kill in the performance of official duty were the nakhoda ( sea captain). At sea nakhoda himself as a ruler. However in this case, the authority carried with it proviso that when the nakhoda has arrived his destination, he shall tried in court. If it is proves that he has killed a man, who has not committed any offence, he shall be killed or fined.

http://www.malaccaguide.com

Custom in Federal constitution


Article 160 which includes the definition of law includes custom "Law" includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof;

Article 162

(1) Subject to the following provisions of this Article and Article 163, the existing laws shall until repealed by the authority having power to do so under this Constitution, continue in force on and after Merdeka Day, with such modifications as may be made therein under this Article and subject to any amendments made by federal or State law.

Article 76 (1)Parliament may make laws with respect to any matter enumerated in the State List, but only as follows, that is to say:

(a) for the purposed of implementing any treaty, agreement or convention between the Federation and any other country, or any decision of an international organization of which the Federation is a member; or (b) for the purpose of promoting uniformity of the laws of two or more State; or (c) if so requested by the Legislative Assembly of any State.

(2) No law shall be made in pursuance of paragraph (a) of Clause (1) with respect to any matters of Islamic law or the custom of the Malays or to any matters of native law or custom in the States of Sabah and Sarawak and no Bill for a law under that paragraph shall be introduced into either House of Parliament until the Government or any State concerned has been consulted.