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Malay Adat in Sabah and Sarawak - Coggle Diagram
Malay Adat in Sabah and Sarawak
In both Sabah and Sarawak, Malay adat is in the form of:
Judicial decisions
A mixture of Islamic law and adat
Codes
SABAH
Malay adat in Sabah is a mixture of Islamic law and adat. Islamic law was codified in 1936 and administered as part of the native customary laws in matters concerning
inheritance
matrimonial property
resulting in a situation where there was no uniform application of Malay adat
marriage
betrothal
For instance, in Matusin bin Simbi v Kawang binti Abdullah [1935] SCR 106, Islamic law was applied as the ‘racial law’ of a Malay who originated from Brunei, but had resided with the Bajau community in Sabah for forty years. The judge held that the racial law of the deceased remained unaltered by change of domicile.
In Ariff bin Samat v Abdul Samat bin Noor Mohamed, lee 1973 (Sabah):27,NCA, an adopted child could inherit the property of the adoptive parent under Malay adat even though it conflicted with Islamic law.
Then in Tiamsah binte Olod v Kanali Gantarum, Lee 1973 (Sabah): 164,NCA, a case on harta pencarian , Malay adat was applied.
SARAWAK
In Sarawak, the principles of Malay adat which were codified by the Rajahs included elements of Muslim law and were embodied in the Undang-Undang Mahkamah Melayu Sarawak ( the Laws of the Sarawak Malay Court), published in 1915.
An example of the codification of Malay adat is the Muslim Wills Ordinance 1896 (Cap. 96) (Revised Laws of 1958). This is the only such codification in Malaysia. Under the original order, property had to be disposed of in accordance with ‘the law’ and customs of the tribe’, and distribution ‘must be fair and equitable toward the relatives or natural heirs’- an illustration of the mixture of adat and Islamic law.
The court recognized Malay adat even when it conflicted with other laws. In S.M. Mahadar bin Datu Tuanku Mohamed v Chee [1941] SCR 96, the court upheld the Undang-Undang Keluarga Mahkamah Melayu (Code on Malay Family Law) although it was contrary to English law. In that case, according to custom, a pregnant woman’s oat that a particular man was the father of her child was accepted under the said codified Malay custom.
In Sheripah Unei and Sheripah Ta’saih v Mas Poeti and Anor [1949] SCR 5, child adoption under adat was recognized even though it was contrary to Islamic law, as it was considered‘customary among Malays in Sarawak’ long before the Adoption Ordinance of 1941 (Cap.91).
Then in Abang Haji Zaini v Abang Haji Abdulrahim [1951] SCR 3, applying the Muslim Wills Ordinance 1896, a Muslim was allowed to dispose of his property by will according to his own wishes and not regulated by Islamic law, which only allows disposal of one-third of his property by will.