Malaysia, being one of the most multiethnic countries globally, is no stranger when it comes to the customary land system. But how much do you really know about customary or traditional land?
Different tribes and communities in Malaysia, especially, have inherited different ways of life from various aspects. From the smallest thing to the most significant thing in life, such as the food we eat, our clothes, and the place we live. It is all parts and parcels that make up the identity of the community.
Before there was a central government system that governed the people, there were communities that abide by different nuances and social conduct that best fitted the custom of the community, and it is continuously inherited from one generation to another.
This brings us to one of the most, if not controversial, topics to this day, that is customary land. Customary land is commonly found within the area that the native still lives in. In this case, native meaning, that the people who had established themselves in the area before others came along.
What is a customary land system
Generally, the customary land system refers to the right of the people of a particular group, ethnic, tribe, or community to own the land in certain areas that understandably have been inhabited for the longest time. In this modern time, the customary land system certainly posed as a unique system to many countries that still accommodate the rights of the indigenous group within the border of the nation. Technically, the limitation of customary land is not restricted to land but also the natural resources that come with it, such as water and anything underneath the ground.
In Southeast Asia, customary land systems are commonly found in countries like Malaysia and Indonesia, where different indigenous groups exist and are still in practice to this day. To many indigenous groups, customary land is held sacred to the community. Therefore, it should be left to the next generation and preserve their identity, particularly among the smaller minority native groups, particularly Orang Asli in Malaysia (People of the native/ indigenous people of Malaysia). Worth noting that in the customary land system, the land shall not be passed or be sold to people outside of the tribe, group, or community.
What is the difference between statutory and customary land
On the flip side of the system, there is statutory land tenure. Statutory land tenure came into the picture when the country gained independence from the British, and we continue to use the land law they introduced.
Statutory land system
The Statutory land tenure in Malaysia is governed by the rulings of the National Land Code (Act 56 of 1965) in the Peninsular of Malaysia, while in Sarawak, there is Sarawak Land Code (Cap 81) for them to refer to and Sabah Land Ordinance (Cap 68) for the land-related procedure in Sabah. The National Land Code is based on the British Torrens system, where everything has to be registered. In other words, every process has to be written down from land title to deed of the land. One of the main differences that can be distinguished between statutory and customary land, especially in Malaysia, is the availability of registration papers to provide proof of land ownership.
Customary land system
On the one hand, Customary land is managed by the leader of the tribe or the indigenous group. Whilst, the statutory land is administered by both Federal and State governments to some extent. Lastly, the customary land tenure follows unwritten laws passed down from one another through shared understanding over the years, and statutory land tenure follows the law specified by the constitution and legislation body.
Different types of customary land in Malaysia
There are several types of customary land in Malaysia, and the tradition continues today between different indigenous people of Malaysia. Despite the differences between each ethnic group, such as food, clothing, and celebrations, a few striking resemblances make up the huge subset of the characteristics of the customary land.
1. Malay customary land
Despite making up the majority of the racial fraction of the country and not in the category of indigenous people of Malaysia, their rights to the land have been identified as Malay Reserve Land (MRL). MRL or Tanah Rizab Melayu is not the same as Bumi Lot. Historically, the Malay Reserve Land is a concept that the British had instituted in the Federated Malay States (Negeri-Negeri Bersekutu) in 1914.
The enactment that was put in place was meant by the British to prevent the allocated land from being transferred to other people and to avoid any private agreement of people of different races. To date, the enactment’s elaboration still reads that any land of the Malay Reserve Land cannot be the subject of a transaction between the Malays and Non-Malays. In the eyes of the Malaysian constitution, a Malay is someone who is Muslim by religion, speaks Malay, and adheres to Malay traditions.
On that note, in Malacca and Negeri Sembilan, according to the Ministry of Land and Natural Resources, the customary land in these two states is registered in a certificate under the name of the tribe, which in this case following the matrilineal Adat Pepatih.
2. Sarawak native customary land
Spanning across 124,450 sq km. of land area, Sarawak is the biggest state in Malaysia and the home of close to 30 different ethnicities; most of them are considered as Sarawak natives. According to the Land Code, 1957, there are five land classifications in Sarawak; one of them is Native Customary Land. Land can only be distinguished as customary if lawfully created before January 1, 1958, and still maintained.
Out of all, three main ethnicities still follow the traditions and abide by the customary land tenure set up by their ancestors: the Kelabit, Iban, and Penan. Though all three of them settle down in the traditional communal longhouses, the Kelabit and Iban have long agreed that the land is for everyone. Therefore, anyone who wants to use the resources has to seek approval from their community. The community members shall settle within their territory and use the area to cultivate an agriculture ecosystem that in turn help them garner resources, as well as use it as a settlement and burial site.
3. The Orang Asli customary land
Orang Asli is the aboriginals of Malaysia, and they can be identified into three main groups: the Senoi, Negrito, and Proto Malay. From the three leading groups, it then branches out to another 18 smaller groups. Within the tradition and custom of Orang Asli, the land they live in of which their ancestors have established is focal of their community that they held sacred and tied to their identity. The Orang Asli community continuously occupies the land that their forefathers passed down and the knowledge of utilising it to survive and also to preserve the Orang Asli culture.
There have been many problems faced by Orang Asli in Malaysia when it comes to their native customary land. One of the most famous cases is between Sagong Tasi of Dengkil Orang Asli Temuan community vs the Federal and Selangor State Governments. He won the case which led to his name to the first legal precedent that recognised the rights of the Orang Asli to their full customary land ownerships in Peninsular Malaysia.
4. The indigenous people of Sabah customary land
Unlike Sarawak, the customary land of the indigenous people was passed down within the family tree themselves in Sabah. The Land Ordinance of Sabah (Cap 68) has outlined the seven definitions of customary rights. The land ownership through custom and tradition must have been planted by fruit trees; isolated plants that bear economic value have to be maintained as their own.
The land shall have livestock to keep down the undergrowth, the land has to be occupied and built within three years, be a place of shrine or burial site, and lastly, the right of way for people or animals that belong to the community.
Realistically, though many indigenous people are no longer pagans and have since followed other religions, Sabah natives continue to occupy their land where they practice their customs and traditions that closely tie them to their identity.
Challenges and issues of native customary land in Malaysia
As much as the topic of native customary land, a unique quality of our country, there is friction and complication between the aboriginals group and the governing bodies. In the name of development, many customary lands have been breached and natural resources exploited by people who carry forward different interests in the land significant to a specific section of the society.
Orang Asli’s often have to bear the brunt of risking their settlement to be taken away based on the jurisdiction by the state that when the land is no longer continuously occupied, it belongs to the state, despite needing the land of where their ancestors were buried to relate spiritually.
People in Borneo, on that note, are losing their land to make way for the development of palm oil trees, timber, and much more, which means continuous deforestation and land grabbing that jeopardises their customary land and the ecosystem around it.
Example of customary law in Malaysia
The word that people always utter to refer to Customary Law is ‘adat’. Customary law refers to the foundation of every culture, community, tribe, and group that separates them from one another and members of the community share a familiar yet unique way of life.
It pans out from the type of food they cook with the materials they harvested from their land to the distribution of inheritance when someone older passes away. It’s the code of conduct within one society that became their identity.
Adat Pepatih is uniquely famous for its matrilineal system. This customary law or adat comes from Minangkabau, Indonesia, and now they are still in practice by the Malays in Negeri Sembilan and some parts of Malacca. Adat Pepatih prioritises the woman of the family in the distribution of property or inheritance, which includes the ancestral property and the acquired properties. Also, for the classification of a clan, an unmarried man is considered part of his mother’s clan until he finds a wife, and then he would move and settle down at his partner’s village. Despite all that, the men still maintain their role as the leader of the community.
Everything about Adat Temenggong is the opposite of Adat Pepatih. Adat Temenggong is the embodiment of the teaching of Islam. Many aspects of the custom emphasise the man as the group leader. For example, the distribution of inheritance or property should go to the male member of the family, and women should move to their husband’s village instead of staying in their own.
Iban customary law
The Iban comes second in becoming the most populated tribe in Malaysia after the Malays. Due to their nature close to the water, the Ibans have settled in their traditional longhouse near the river of Sarawak and rural areas of the state but still keep close to the water source. In terms of inheritance, distribution does not favour any blood relation but the occupancy of each unit in the longhouse that they refer to as a room or ‘bilik’. The Iban exercise equal rights to the inheritance, which should be distributed within the members of the ‘bilik’, usually family members by blood or adoption.
Dusun customary law
Dusun’s customary law was penned down by the resident assigned to Sabah at that time, G.C. Woolley. In terms of inheritance, the Dusun divide the ancestral property among blood relatives, while the acquired property can be shared among relatives by marriage which then becomes ancestral property. Like the Iban customary law, where adopted family members are also entitled to inheritance like biological children, the Dusun also follow the same tradition. The adoption process involves a ceremony with the leader of the tribe and all their neighbours before announcing that the child is theirs.
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Edited by Rebecca Hani Romeli