Introduction
The Malaysian legal system is a pluralistic one, comprising a mix of secular laws inherited from British colonial rule, Islamic law, and the native customary laws of its indigenous peoples (Aun, 2005). Native customary law, often referred to as adat, governs the personal lives and land rights of non-Malay indigenous communities, particularly in Sabah and Sarawak. The statement that this body of law is "uncodified" suggests it exists purely in an unwritten, oral form. This essay will argue that while native customary law in Malaysia is indeed predominantly uncodified, relying heavily on oral traditions and judicial recognition, the statement is an oversimplification. There have been significant, albeit partial, efforts to codify or formally declare these customs, especially in East Malaysia, creating a more complex legal landscape than the statement implies.
The Predominantly Uncodified Nature of Customary Law
The foundation of the argument that native customary law is uncodified lies in its origins and transmission. Customary law is, by its nature, a body of rules, traditions, and norms that have been accepted and practised by a particular community over a long period (Jewa, 2005). In Malaysia, these customs were not historically recorded in written legal codes but were passed down orally from one generation to the next. The Federal Constitution of Malaysia acknowledges the legal force of these customs by including ‘custom or usage having the force of law’ within the definition of 'law' in Article 160(2).
The primary method through which this unwritten law is applied within the state legal system is via judicial precedent. When a dispute arises, the civil or native courts will hear evidence from community elders and experts to ascertain the relevant custom (Bulan, 2006). Once a court makes a finding on a particular custom, that decision becomes a source of law for future cases, similar to the operation of the common law. A key example is the case of Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor [1997] 1 MLJ 418, where the court recognised the customary land rights of the Orang Asli, even though these rights were not enshrined in any single statute or code. This demonstrates the law operating and being enforced without prior codification, relying instead on proof of continuous practice. Therefore, in its fundamental form, native customary law remains an unwritten system recognised and developed by the judiciary.
Efforts Towards Codification and Formalisation
Despite its unwritten origins, the statement that native customary law is entirely uncodified is inaccurate. In the states of Sabah and Sarawak, where native communities form a significant portion of the population and their legal systems are more formally integrated, there have been clear moves towards documenting and codifying adat. This process is often described as creating "declarations" or "restatements" of custom rather than comprehensive codification in the continental European sense (Bulan, 2006).
In Sarawak, the Native Customary Laws Ordinance 1992 authorises the Native Courts to apply customary law and facilitates the creation of written codes. Under this framework, several customary law codes have been compiled, such as the Tusun Tunggu for the Iban community, which sets out principles relating to family law, property, and offences. Similarly, in Sabah, the Native Courts Enactment 1992 provides the legal basis for the Native Courts to administer customary law. Efforts have been made to compile the customary laws of various indigenous groups, such as the Kadazandusun, to provide greater certainty and consistency for judges in the Native Courts (Jenting, 2011).
However, these compilations are not exhaustive. They often focus on specific areas like marriage and inheritance and do not cover the entirety of a community's customs. Furthermore, there is a risk that the process of codification can "freeze" a living, evolving law, potentially removing the flexibility that is a hallmark of custom (Aun, 2005). The process is also challenging due to the immense diversity of customs among Malaysia’s many indigenous groups.
Conclusion
In conclusion, the assertion that "the native Customary Law is uncodified" is largely correct but fails to capture the full picture of the Malaysian legal landscape. The core of native customary law, particularly in Peninsular Malaysia, remains unwritten, dependent on oral tradition and its validation through judicial decisions. In this sense, it operates like a form of common law. However, this is not the whole story. In Sabah and Sarawak, where customary law has a more prominent constitutional status, significant and official efforts have been made to formally document and declare these customs in written form. These are not comprehensive civil codes, but they represent a clear move away from a purely unwritten system. Therefore, a more accurate description is that Malaysian native customary law exists on a spectrum between uncodified tradition and partial, formal codification, reflecting the ongoing challenge of integrating ancient customs into a modern state's legal framework.
References
Aun, W. M. (2005) The Malaysian Legal System. 3rd edn. Pearson Malaysia.
Bulan, R. (2006) Native Title in Sarawak, Malaysia: The Legal and Political Struggle. Paper presented at the International Symposium on ‘At the Crossroads of Human Rights, the Environment and Development: a critical assessment of the status and future of the indigenous peoples of Asia’, Tokyo, Japan.
Jenting, H. (2011) ‘Codification of Iban Adat (Customary Law): A Study of its Challenges and Prospects’, Jurnal Teknologi, 55, pp. 103-113.
Jewa, T. S. (2005) Public Law in Malaysia: Cases, Materials and Commentary. 2nd edn. LexisNexis.
Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor [1997] 1 MLJ 418.
Federal Constitution of Malaysia.
Native Courts Enactment 1992 (Sabah).
Native Customary Laws Ordinance 1992 (Sarawak).
