Article

Law and the adat perpateh: a problem from Jelebu

From Munshipedia, the MBRAS digital historical encyclopedia

Law and the adat perpateh: a problem from Jelebu

J.M. Gullick, a former British District Officer in Negri Sembilan, published this article in 1981 to examine the 1980 dispute over the election of the 15th Undang of Jelebu and the Court of Appeal’s landmark ruling that Malaysian courts lack jurisdiction over such adat matters. The article’s overarching thesis is that the current constitutional position of the adat perpateh is the product of a long sequence of changes induced by subordinating the system to British colonial administration from 1874 onward, culminating in the 1959 State constitution.

Summary

The article begins with the specific legal dispute that arose after the death of the 14th Undang of Jelebu in November 1979. The Dato’ Mentri and Dato’ Ombi, who jointly managed the election process, disagreed on the eligibility of candidates, and the Mentri ultimately declared a single candidate elected over the Ombi’s objection. The Ombi first took the matter to the Dewan Ka’adilan dan Undang, which upheld the appointment, and then to the High Court. The Court of Appeal held that Article 71 of the Federal Constitution, read with Article XVI of the Negri Sembilan constitution, excluded the courts from jurisdiction over such disputes, since the Dewan was the body constitutionally designated to determine adat matters. Gullick notes that the case was decided on this preliminary issue alone, leaving the substantive question of the election’s validity unexamined.

The bulk of the article traces the historical development that produced this constitutional arrangement. In the pre-colonial period, the Undang was an independent ruler constrained only by the requirement to govern by consent with the lembaga (council of clan chiefs) and by the principle of hierarchical referral (naik menjunjong, turun bertangga). Disputes over succession were resolved by force or community compromise, with no external arbiter. The old confederacy of Raja Melewar (c. 1773) had effectively collapsed by the 1860s, and the Yam Tuan Besar at Sri Menanti possessed only nominal authority over the Undang. British intervention from 1874 introduced an external authority that could intervene in domestic disputes, and the gradual reunification of the districts into a single confederate State (formalised in the 1898 agreement) created the structural precondition for a body like the Dewan. The British Resident’s role in verifying that appointments conformed to custom led to the first written codifications of adat rules by administrators such as Caldecott, Wilkinson, and Nathan & Winstedt.

Gullick argues that the 1959 constitution’s Article XVI, which established the Dewan Ka’adilan dan Undang, was a response to the need for a post-colonial mechanism to resolve adat disputes once the British Resident’s informal regulatory role disappeared. The article also notes growing internal tensions: the adat is increasingly viewed by some Malays as archaic or in conflict with Islamic law, and the privileged clans who participate directly in the system represent only a minority of the present population.

Key Findings

  • The Court of Appeal in Dato’ Othman bin Baginda & Anor v. Dato’ Ombi Syed Alwi bin Syed Idrus held by a majority of four judges that courts lack jurisdiction over adat disputes in Negri Sembilan, with the Lord President dissenting on the ground that “advise” (Article XVI) is not “determine” (Article 71) (pp. 2–5).
  • The 1898 agreement between the Yam Tuan and the four Undang, a Malay-language document, explicitly provided that the Yam Tuan “cannot interfere in the Customs of the Country” and would not entertain complaints from the Undang’s subjects, except in boundary disputes (pp. 12–13).
  • The treaty of 13 July 1889 and the treaty of 8 August 1895 both declared that the confederation arrangement “does not imply that any one Ruler should exercise any other power or authority in respect of any State than that which he now possesses” (p. 12).
  • The 1948 Negri Sembilan constitution contained no provision equivalent to Article XVI of the 1959 constitution; the Dewan Ka’adilan dan Undang was introduced only in 1959 (p. 8).
  • The rotation (giliran) system in Jelebu operates among three waris berundang (Ulu Jelebu, Kemin, Sarin), with further rotation among perut within each waris, producing eight descent groups with rights to provide an Undang; Caldecott noted the system “has always been honoured more in the breach than the observance” (p. 9).
  • The Rembau succession dispute of 1872–1883 lasted over ten years with occasional fighting, illustrating the pre-colonial resort to force when adat mechanisms failed to produce consensus (p. 10).

Conclusion

Gullick’s definitive takeaway is that the restored State of Negri Sembilan is “a modern structure built on ancient foundations”—its outline imposed by the old adat, but its substance entirely new. The Dewan Ka’adilan dan Undang represents an admirable compromise in the spirit of gradual unification, but its constitutional language (“advise” rather than “determine”) is too ambiguous to provide the “clear words” needed to definitively exclude court jurisdiction, a gap the 1980 case exposed.

Context

  • Gullick served as District Officer Seremban (1945–46) and was personally involved in the 1945 Jelebu and 1946 Sungei Ujong Undang elections; his perspective is that of a colonial administrator who witnessed the system in operation and who authored earlier studies of the same subject (1946, 1949, 1954).
  • The article draws on primary sources including the Gibson & Maxwell treaty compilations (1924), British colonial despatches (PRO CO 273 series), the Negri Sembilan State Gazettes (1948, 1959), and the administrative commentaries of Caldecott, Wilkinson, Parr & Mackray, and Nathan & Winstedt.

References