East South Asia

Links to legal datasheets for countries in this region.
Indonesia | Philippines | Malaysia | Brunei | Singapore

 

The Region and Its History

    Southeast Asia encompasses the huge peninsula of Indochina and the extensive archipelago once known as the East Indies.  Within this region lie the states of Burma, Brunei Darussalam, Thailand, Laos, Cambodia, Vietnam, Malaysia, Singapore, Indonesia, and the Philippines.  Islam is the religion of two-fifths of the region's people, most of them living in Malay Peninsula, the Malay Archipelago, and on the Philippine island of Mindanao.  Indonesia is the single largest Muslim country in the world, with a population of  212 million.  Two-thirds of Malaysia's 23 million people are Muslim.

   The Muslim traders who landed in Indonesia in the 7th century found a Hindu-Buddhist civilization that was already centuries-old.   There have been well-organized and developed societies in the Indonesian archipelago since the 7th century BC.  Southeast Asia has always had close economic and social ties with the Indian subcontinent. The oldest Hindu works of art in Indonesia date back to the 3rd century CE.   During the 9th century, both Hinduism and Buddhism were practiced as court religions.  The blending of the two religions continued until the rise of Islam in the 14th century.  Reflecting all the religious changes of the court level, the common people adopted part of each new religion as an additional layer over their basic indigenous beliefs.

     Islam has perhaps bound its adherents together more stronger than have the other religions found in Southeast Asia. It has profoundly affected cultural, social, political, and economic matters in areas where it is practiced. From the 13th  through 17th century Sunnite Islam spread widely, coming from the Middle East via India. In the 15th, 16th, and 17th centuries, insular Southeast Asia attracted Islamic merchants and missionaries from India and farther west (later the  Portuguese and the Dutch.)   If economic interest drove Islam's introduction, the new religion also offered an egalitarian message that challenged the power of traditional elites and a complex theology that held great appeal for  peasants and merchants in the coastal regions.

    The first converts to Islam were local rulers who hoped to attract Muslim traffic. Muslim traders and teachers were probably associated with court administration from the beginning and introduced the religious institutions that made foreign Muslims feel at home. After the consolidation of Islam on the Indian subcontinent, Muslim merchants and Sufi missionaries also began to proselytise extensively. (Lapidus 1991).  The city-state of Pasai and the other early Muslim beachheads in Indonesia were to a considerable extent genuine Muslim creations that commanded the loyalty of the local population.

    There were similar new harbor kingdoms on the northern coast of Java.   The rulers of Malacca, though of prestigious Palembang origin, accepted Islam precisely in order to attract Muslim and Javanese traders to their port.  Islam's asssertion of the equality of all believers and its very profitable communications with the Muslim world throughout Asia gave formerly peripheral regions the opportunity to begin to influence the course of events in Indonesia.

   But Indonesian history is that of many distinct and often vastly separated  regions.  The history of early Indonesian Islam is no exception.  What happened in the 15th and 16th centuries cannot be explained simply in terms  of the influence of new ideas.  The political ambitions of many regional princes intervened, and there was no uniform pattern of early Muslim life in the archipelago.

   Ache (or Acheh), which succeeded Pasai in the 16th century as the leading  harbor kingdom in  northern Sumatra, eventually became a self-consciously  Muslim state; however, a persuasive case has been made for the persistence  as late as the 17th century of  ‘Hindu’ notions of divine kingship familiar  in Java.  Aceh had contacts with Muslim India and its own heterodox school  of Muslim mysticism.  The single and most notable gain for Islam in Sumatra  was in the Minangkabau country, where Shaivite-Mahayana Tantric cults had  flourished in the 14th century.  Islam’s penetration of Minangkabau by way  of the Achinese west coast of Sumatra was far advanced my the beginning of  the 17th century.  Minangkabau was later to exercise a significant influence in the affairs of the archipelago.

    Ships from the Netherlands began arriving in Java at the end of the 16th century. Spain claimed the Phillippines around the same time. During the 19th century most of Indonesia fell under Dutch rule, while the British took control of Malaysia and the United States ousted Spain from the Phillippines.  All three countries gained independence after World War II.

       The mostly Islamicized people of the Malacca area were the first to call themselves ‘Malays’ (a likely reference to earlier Shrivijayan origins).  Thereafter, the term Malay applied to those who practiced Islam and spoke a version of the Malay language.  Identity and behavior, rather than descent, became the criteria for being Malay, so that previously animist and Hindu-Buddhist peoples of  various origins could identify themselves (and even merge) with the Malays.  Over time a loose cultural designation became a coherent ethnic group distributed throughout Malaya, northern and western Borneo, eastern Sumatra, and the smaller islands in between – a region that can be termed the ‘Malay world.’

  The Malays originated in different parts of the peninsula and archpelagic Southeast Asia.  They constitute about two-thirds of the population and are politically the most important group in the area.  They share with each other a common culture, speak a common Austronesian language – Malay (officially called Bahasa Malaysia), which is the national language – and are overwhelmingly Muslim.  Adherence to Islam is regarded as one of the most important factors distinguishing a Malay from a non-Malay.

    For most of the post-war period, secular political parties dominated the governments of Indonesia and Malaysia   Then in the 1980s, Dr. Mahatir Mohamed came to power on a platform of bringing "official Islam" to Malaysia.  The same period saw a flowing of Islamist think-tanks and research centers in Indonesia.  When a  economic and political crisis struck both countries in 1997, the Islamist opposition was able to portray its struggle against the ruling elite of the two countries in religious terms. Islamist political parties scored large gains in 1999 elections held in Malaysia and Indonesia. (Noor 1999).

Legal Practices and Institutions

   In general Muslim communities in southeast Asia are mainly Sunni Muslims of the Shafi school with vestiges of Sufi influence in religious ceremonies, and with the strong adherence to mystical tradition.  Research shows that Islam in Southeast Asia is contextual or blended with pre-Islamic traditions and beliefs, and with degrees of Hindu-Buddhist influence.  Communities differ in the way they balance and apply sharia and the customary legal code or Adat, conditioned by the social structure of the community, its historical processes, kinships system, and economics.

   Before the colonial impact, Southeast Asia had no hiearchical orgnaization of 'ulama' or of any other Muslim religious leaders and therefore no state control of religious affairs as was the case in the Middle East and in India.  Instead, Islam was organized on a local scale around individual teachers and holy men.  While these teachers adhered to the sharia code of law, the local schools were independent of each other. 

    When the Dutch first arrived in Indonesia, they assumed that Indonesian Muslims observed the whole corpus of Islamic law was observed by the Indonesian Muslims. More careful study revealed that the only parts of Islamic Law incorporated into all types of  Adat law were those on marriage, divorce, and polygamy, which apply to all  Indonesian Muslims.  Adat law prevails over Quaranic principles in many places.   The Dutch only upheld those parts of Islamic law that had become part of local custom.  The current government has followed the same policy (Lapidus 1991).

      The judicial system in Indonesia is based on Romano-Dutch law. It consists of a Supreme Court (Mahkamah Agung) in Jakarta, which is the final court of appeal; high courts located in principal cities on Java, Sumatra, Celebes, Kalimantan, Bali, the Moluccas, and Irian Jaya, which deal with the appeals from more than 250 district courts.  There are four judicial spheres (general, religious, military, and administrative), each with its on courts. 

      The religious, military, and administrative courts deal with special cases or particular groups of people, while the general courts deal with normal cases, both civil and criminal.  There is one codified criminal law for all of Indonesia; the Dutch codified civil code is applied to foreigners.  For Indonesians the civil law is the uncodified "humuk Adat" or local customary law, which varies from one district or ethnic group to another.

    The field of law in Malaysia is as complex as most of its other cultural and social heritage, with several intertwining traditions.  Those concerning the Malay population are Islamic law, Adat or customary law, and a British colonial influence. Since 1963 Malaysia has maintained a quasi-democratic parliamentary political system that includes regular elections and moderate political diversity, but also some restrictions on civil liberties, including a ban on public discussion of ‘sensitive’ issues.  In Malaysia the legal system is based on English common law.  The constitution of Malaysia, which is the supreme law of the country, provides that the judicial power of the federation shall be vested in two High Courts, one in Peninsular Malaysia and the other in East Malaysia, and also in subordinate courts.  Above the High Courts is the Supreme Court (Mahkamah Agung), with jurisdiction to hear and determine appeals of decisions by any High Court.  The supreme head of the judiciary is the Lord President of the Supreme Court.

   Each High Court consists of a chief justice and a number of other judges – up to 33 in Peninsular Malaysia and up to eight in East Malaysia.  The High Court has unlimited criminal and civil jurisdiction and may pass any sentence allowed by the law.  Below the High Court are the subordinate courts, which consist of the Sessions Courts and the Magistrates’ Courts.  Both of these lower courts have criminal and civil jurisdiction – criminal cases coming before one or the other court depending on the seriousness of the offense and civil cases depending on the sum involved.  In addition, there are religious courts in those Malay states that are established under Islam law.  These courts are governed by state, not federal legislation.

   Within both Indonesia and Malaysia, the unwritten, traditional code called Adat governs most aspects of personal conduct from birth to death.  Two kinds of Malay Adat law developed prior to the 15th century: Adat Perpateh developed in a matrilineal kinship structure in areas occupied by the Minangkabau people in Sumatra and Negeri Sembilan; Adat Temenggong originated in bilaterally based territorial social units.  Both Adat forms were markedly transformed by Islamic and later European legal systems.  Adat Perpateh emphasized law based on group responsibility.  Criminal or civil offenses were not differentiated.   Enforced by community pressure, punishment stressed compensation rather than retribution.  A crime was absolved by payment in kind, or by a reconciliation feast given to the aggrieved person.  Mutilation and death penalties rarely were invoked, and acceptance of circumstantial evidence was a prominent feature of Adat Perpateh.

   Prior to Islamic influence Adat Temenggong consisted of a mixture of Hindu law and native custom.  It encompassed civil, criminal, constitutional, and maritime law and included torture, amputation, or death as punishment for offenses.  Both Adat systems continued into the 20th century, until formalized European jurisprudence largely displaced them.  Suwarni Salyo argues that Adat applied currently, especially in regulation of the family law (Muzani #2, vol II, 1985, pp. 15-21), but states that there is no single body of Adat.  Adat and its application varies from community to community and from region to region.  There are at least nineteen Adat communities in Indonesia alone.

  Indonesia has some 100 women sitting as sharia (syariah) court judges, but in Malaysia the general view is that women are not qualified to become judges. Women have complained that Malaysia's sharia court system is prejudiced against them (Othman 1996).  The wife of Indonesia's president, Abdurrahman Wahid, is currently engaged revising the country's standard guidebook of religious edicts to make sure that the book stresses the rights of women as much as their obligations under Islamic law  (Asmarani 2000)

   Sharia courts also operate in Brunei and among the Muslim minority communities of Thailand, the Phillipines, and Singapore.

Seclusion of Women/Purdah

   Southeast Asia's Muslims traditionally have not been as concerned about the management of female sexuality as some other Muslim communities, though rules differ from one ethnic group to the next.  The researcher Leela Dube sees the definitive factors that contribute to this development being the absence of a caste, the system of descent, inheritance, and group membership, as well as residence and the nature of conjugal relations (Dube, 1997:57-59).  For example, in general, Southeast Asian women are not driven out of their homes for sexual offenses.  The notion of the protection of women and control over them seems not to be a part of the bilateral kinship system and not a part of the ethos of the region.  In the matrilineal communities in Southeast Asia, the men who are looked upon as the custodians of women’s sexuality, such as brothers and uncles, are not the users of women’s sexuality.

 Generally, Southeast Muslim women, in addition to their roles as wives and mothers, also are engaged in earning an income.  They seem to have a significant share of economic power and autonomy, particularly Malaysian Peninsular, Javanese, and Filipino women.  Typically, women are integral to the peasant economy, entirely responsible for the commercial production of vegetables and for the care of domestic animals.  In general they retain legal control over what they produce and earn, and it appears that, besides rules of inheritance, the institutionalization of marital property in this region also encourages women’s control over resources.  Yet, women’s active economic roles are also conditioned by the classes to which women belong.  In poor families, for example, economic activity gives women positions of considerable importance, and in the wealthier families it gives a material basis for acquiring increased social power.  Although not many women ‘reach the top’ a lot of them are found on the middle levels of various professions (Dube, 1997:46-48).

    As a rule, unmarried Indonesia women are subject to more social restrictions than are married women.  In Indonesia, the matrilineal Muslims of the Lakshadweep Islands, such as the Minangkabau and Sasak believe that the Islam requires a first-time bride to be a virgin. They therefore place restrictions upon young women with the onset of puberty.  In Java as well, although unmarried girls are expected to be modest and cautious in their behavior.

    After marriage, restrictions on women's movement are negligible.  Very often married women migrate to towns, leaving their husbands at home to look after the children and the land (Dube, 1997:57-59, attrib. to Hetler, 1990).   Adat has a strong inflluence on women’s role and position in the society.  Indonesia's Muslim communities view female education and business as fully in line with sharia.  This fact reinforces the independence allowed to women within the traditional parental and matrilineal systems to own and administer property and to conduct business.  It also mitigates the restriction imposed on women belonging to the patrilineal communities.  But in tradition and culture, even women who have jobs or careers are  regarded primarily as home-makers.

    In Malaysia both sexes are subject to more or less the same codes of sexual behavior (Dube, 1997: 57-59).  Although the young girl is expected to remain chaste and virtuous until she is ready for marriage and the term used for a young woman meaning "unopened flower" indicates greater emphasis on the virginity of women than men, male youths too are bound by strong rules of social decorum and propriety; sexual promiscuity in men is greatly condemned; a quite demure male is much preferred as a husband or son-in-law [to] one who is known to have had sexual experiences with other women’ (Dube, 1997:57-59, attrib. To Karim, 1987).  After marriage women are more freely able to participate in economic and productive activities, and are not seen as being under the control of men.

  The Kelantan of Malaysia are an exception.  Kelantan women are segregated but not secluded.  While sexual segregation is not unique to Islam, this feature of social life is codified, and the Kelantan see it as a feature of Islam (Rudie, 1983:134).  Kelantan women usually move around in groupings, and at social occasions both sexes are present but segregated to the highest degree practically possible (idid., 130-131).  Although Islam in Kelantan circumscribes sex-role behavior quite strictly, particularly for women, it has no direct rule against women’s economic autonomy.

  Women in other parts of Malaysia who follow bilateral patterns of kinship enjoy freedom of movement, absence of seclusion and independent involvement in economic activities.  They attend educational  institutions without chaperoning and protection.  A relatively recent social movement demanding conformity with Islamic injunctions has brought in a special cloak that covers women’s hair, neck and arms, and also covers the bust with a double thickness of fabric.  A similar cloak is being adopted by some women in Southeast Asia only for special public occasions.  Sometimes men who complete the haj insist on veiling their wives, but the latter remain largely unconvinced.  Older women in particular argue against it: ‘This is not our custom.  We have never done it.  Have we not been good Muslims?’ (Personal interview cited in Dube, 1997:60-69).

  However, the pressure for women to cover their heads and use the cloak continues to grow.  In Kedah, reports Dube, there is media agitation for the usage of the cloak through television and radio broadcasts (Dube, 1997:60-69).  As a response to such demands, a compromise evolved in the form of a scarf that covers the hair, but even this is used by many women only when they go out with their husbands or other male relatives who insist on the observance of a certain degree of purdah for the sake of Islam.  Some women in Kuala Lumpur wear the cloak out of a conviction of its appropriateness to Islamic injunctions.

While theoretically virginity and chastity before marriage is valued in the Philippines, in practice there are no concrete rules or customs in place to ‘regulate’ women’s sexual behavior once they are courting or engaged.  Among the Yakan of the Philippines, women are not secluded. Both males and females are able to congregate in the same rooms or areas.

     In general, the assumptions and reasons that underlie the seclusion of women in other Muslim communities are not apparent in the Indonesian, Malaysian, or Philippine contexts.  Dube suggests that the final analysis on the differences that exist among the followers of Islam is in the principles and ideologies of kinship (Dube, 1997:64).  Based on this thesis, the total or relative lack of female seclusion in Southeast Asia needs to be viewed as a function of the bilateral and matrilineal forms of kinship organization found there (ibid., 64).   Nevertheless, Muslims are the only Southeast Asians to circumcize girls. Traditional midwives make a small incision in the clitoris of female infants shortly after birth. It is commonly believed that the operation prevents girls from becoming hypersexual (Hosken 1982).

Family in the Region

   In Muslim communities of Southeast Asia, residence patterns vary, with three kinship systems prevailing: patrilineal, matrilineal, and parental (bilateral).  Of these parental is the most prevalent.  Suwarni Salyo argues that the status of women depends on to which system they belong.  Among the Minangkabau, who number about a million, for example, residence patterns are not in keeping with Islamic injunctions. Women have exclusive rights over the longhouses (a long communal dwelling), and most remain there throughout their lives. They also own rice paddies, orchards and all other major property. although each clan's administrator must be a man (Dube, 1997:88-89).  So  far as worship is concerned, the Minangkabau are devout Muslims, but they tend to follow Adat  where property and residence are concerned.  This is also seen in the fact that the Islamic procedure of unilateral divorce, in Lakshadweep islands, and easy remarriage can be made to function in the interests of women as often as men, because women have a privileged position in the economic and trade activities compared to other Muslim communities in the Middle East or South Asia.

    Among the Malays and Javanese, households usually consist of one nuclear family, although one may also see uxorilocal extended families (usually extended, nuclear, joint, and laterally joint families).  Among the matrilineal Minangkabau, males tend to assume a partial ‘father role’ towards their sisters’ children, while partially relinquishing paternal care of their own children to their wives’ brothers.

    Like the families found through most of Muslim Indonesia, the Philippine Yakan families consist of primarily nuclear families, composed of a husband, wife, and unmarried or newly married children.

 Marriage

   In Southeast Asia, marriage has a different texture and character in terms of relationships between spouses, rights over children, and choice of residence than is the case in many other Islamic societies.  Marriage is a relatively egalitarian relationship promoted by kinship organization, the active participation of women in economic production, and access to rights over strategic resources.  The difference stems from traditional customs, which are characteristic of the pre-Islamic lifestyle of the Southeast Asian communities.  Although the institutions of marriage and divorce are primarily Islamic today, they still tend to incorporate pre-Islamic traditions.  These societies offer institutionalized choices in such matters as entering and leaving marriages, marital residence, and the nurturing of children.  These choices have been aided by the general absence of purdah (Dube, 1997:65).

  Although Muslim communities in Southeast Asia are rooted in different kinship systems, all essentially base marriage on sharia, following and fulfilling the basic requirements of the law.  However, in practice the way these requirements are applied in different Muslim communities is radically different from that visualized and emphasized by Islam.  In the mainstream interpretation of Islam, Islam assumes patrilineal structure to be the natural form of social organization.  In Southeast Asia there are specific Islamic courts, but people are often guided by Adat, which has also influenced them together with modern demands.

   In rural areas early marriage is common.  It may be decided by parents, or by partners with the consent of their parents.  Marriage releases some of the constraints put on young women’s mobility.  There is no stigma attached to divorce and remarriage is common.  Mahr is usually small, and payment can be deferred (Dube, 1997:121-131); it does not act as a deterrent to divorce and does not establish a husband’s authority over his wife, in keeping with Quranic injunctions.  In some communities, like the Lakshadweep group of  Kalpeni island) mahr is only a formal compliance with the religious prescription and does not dictate women’s behavior toward men.  Generally, the ideal marriage is one arranged by parents to a first or second cousin, but not necessarily.  In Malaysia, a woman needs a guardian or wali to give her away in marriage.   In Indonesia, the husband is the head of the family who decides the place of the conjugal home  Indonesian men are allowed to marry up to four wives without the consent of the previous wife or wives.  Indonesia's 1974 Marriage Act outlines the procedure of divorce through the court; allows for a polygamous marriage with the court’s approval; states that both parties have a right to conduct legal actions; demands consent of  the aspirant bride and groom; and provides a provision that overrules the right of a family member to force any side into marriage.  Muslim groups have mounted a campaign to overturn a 1973 rule that civil servants cannot enter polygamous marriages, aruing that the regulation gave rise to extramarital affairs and unregistered marriages performed only by Muslim clerics (Asmarani 2000).

    Among the Minangkabau, the woman's family usually proposes marriage and negotiates the terms with the family of a prospective groom.  The husband provides a bed, chairs and other furnishings for the room he will share with his wife in her family's house (Dorgan 1998). Among the Malays, marriages are traditionally arranged by the parents  according to Islamic law.  However, while most marriages are probably no longer parentally arranged among the Javanese, parental approval remains an important factor.  Young men often send intermediaries to gain the approval of a girl’s guardian, who, following Islamic law, is usually her father or brother.  Marriage is a protracted process of betrothal (negotiation, gift exchanges, formal announcement), setting the wedding date, holding the ceremony, paying the bride price, and possibly carrying out post-wedding familial exchanges.  Women are usually 15 to 18 and men between 17 and 20 when they marry, especially in rural areas, and a newly married couple is usually not expected to be economically or residentially independent.  Newly wed Javanese couples frequently reside for several years with the bride’s parents.

   Unlike most patrilineally-based Muslims, who may include payment of a bride price as part of marital arrangements, the Minangkabau have a practice of giving a male dowry or groom price before marriage.  This divergence results from the fact that the Minangkabau have largely retained their pre-Muslim matrilineal customs, despite their general conversion to Islam.  Among the Sasak, marriage is governed by Adat.  Marriages between the first, second, or third cousins is preferred. 

    Within the Philippines, the Maguindanao customs of marriage are also Islamic.  Marriages between persons of varying rank are common, with children assigned a rank intermediate between those of their parents.  This lead to an integrated spectrum of rank rather than sharply defined social classes.  Social rank is important for the determination of the amount of bride wealth to be exchanged at marriage.  Marriage to one’s second cousin is preferred.  Depending on the social status, a man might have multiple wives, but polygamy is rarely practiced among the lower-ranked people. Among the Tausug communities, marriages are ideally arranged by parents, in line with Islamic law.  First and second cousins are favored spouses since their parents are kinsmen and the problems of inheritance are simplified.  The bride wealth must be given to the bride’s family before the wedding is held, and the newly married couple first lives with the bride’s family.   Among the Yakan, marriage is usually initiated by the groom.  He pays not only a bride price, but must also pay all expenses connected with the wedding ceremony.  The newly married couple initially lives with either of their parents, then later build their own home on either the wife’s or husband’s land.

 Divorce

    Talaq is the most common form of divorce among Southeast Asia's Muslims.  There are two other forms of divorce: khula, the purchase by the wife of her freedom; and fasaq, pronounced by the Kazi  or judge on grounds such as lunacy, impotence, or disease.  However, these two forms are rarely applied (Dube 1997:121-131).  Although the initiative in talaq formally lies with the husband, a woman may indicate to her husband that she does not want him to visit her any more and thus create a situation in which he has no options but to pronounce talaq.  Divorces of this type are common on the islands and in Southeast Asia in general (Dube, 1997:121-131).

    Historically it was difficult for an Indonesian wife to get a dissolution of marriage.  However, the Marriage Act of 1974 does provide provisions under which a wife may seek judicial divorce, including conditions such as the other spouse’s adultery or cruelty.  While divorce is common, and usually based on incompatibility of the partners, adultery, or non-payment of a bride price, its application varies within communities, with divorce being equally accessible for males and females in  some communities, but still difficult for females in others.  

    In cases of divorce among the Malays and Javanese of Indonesia, each spouse retains personal property. Women whose husbands divorce them receive the whole amount of their dowry or "marriage gold," usually in the form of jewelry.  One researcher notes that "It is common to see village women prforming their household tasks adored with 22-carat gold earrings, bracelets, necklaces and rings set with gems.  Women must be prepared to fend for themselves, due to the ease of a husband's obtaining a divorce (Laderman 1996, p. 67).   Communal property, which includes all that was acquired by the couple during their marriage, is divided equally between the husband and wife or at a ratio of 2:1.  This ratio is identified with Islamic law, whereas the principle of equal division is associated with the Malayan and Javanese tradition.  Generally, divorce and remarriage do not carry a social stigma for women.  Additionally, Malay cultural values discredit a man who hold his wife against her will (Dube, 1997:121-131).  Some provisions are usually put into a marriage contract, the contravention of which, automatically frees the woman from the marriage.

   Within the Philippines, divorce among the Maguindanao occurs among those of all ranks, especially in cases of incompatibility, adultery, or non-payment of promised amounts of bride wealth.  Divorce is also practiced among the Tausug, with causes including divorce, barrenness, gambling, mistreatment of  the children, and nonsupport.  Since, among the Yakan, a couple’s home may be located on either the husband’s or wife’s land, in cases of divorce – which are not uncommon – the one on whose land the couple live will keep the house and the other spouse leaves.  The right to initiate a divorce is equally available between Yakan men and women.  Additionally, any property the wife brought into her marriage, as well as what she may have acquired during the marriage, remains her property upon divorce.

   In matrilineal societies of Southeast Asia, women retain their right to the ownership of the house in cases of divorce or separation. In general, both sides keep ownership of  the property that they brought to the marriage and share equally the common property.

 Polygyny

   Generally, polygyny is allowed but rarely practiced in Southeast Asia, partly owing to the widespread requirement of obtaining a current wife’s consent, and partly because few men have  sufficient income to support two or more wives.

   Polygyny was a custom in Indonesia before the arrival of Islam, and (as with other Southeast Asian communities) and may still occur with legal permission.  Specifically, while polygamy is rare among Indonesia’s Malayans, Javanese, and Minangkabau, it is common among the orthodox Muslims of the Sasak – though the Marriage Act had led to some decline in polygamous marriages within this community.

   Within the Philippines, polygamy is most commonly practiced among the Tausug.  Among the Yakan, polygamy is also practiced, but most men have only one wife.  Similar to Indonesia’s Marriage Law, Yakan men cannot marry a second or subsequent time without the consent of his first wife.

Children

   Families that have no children or grandparents are often given children to raise by relatives who have an abundance of children.  In the central Javanese principalities and in the Begelen region it is customary for a young couple to leave their firstborn child with its grandparents when they move away from the parental house.  Childless couples commonly adopt a child, most usually a nephew or a niece from either side (Dube, 1997:104-105).  Often little girls are preferred, because in the long run, they are seen as more useful to the household than boys.

   Among Javanese there is a small ceremonial act in which the foster parents make the biological parents a specific payment to avoid complications induced by supernatural agencies.  There is no legality to such adoptions, and it should be noted that Islam forbids adoption.  Although considered one’s own, an adopted child is not entitled to inherit the pusaka, or ancestral family property (Dube, 1997: 104-105).

Custody of Children

   In Southeast Asia the mother-child relationship is given priority, often at the expense of the father's religious or legal rights.  Children always remain close to their mothers, and in the event of divorce or separation children usually remain with their mothers.  In matrilineal communities, marriage does not establish a man’s rights over his children.  For example, among bilateral Javanese and Malays, despite what the law says, children either follow their mother or, if they are old enough, decide for themselves where they wish to live.  Fathers are generally seen as peripheral, a significant point of incongruity between practice and the injunctions of Islamic law.

Inheritance/Land Rights

  In most parts of the region, Adat seems to take precedence over classical sharia in governing inheritance, with inheritance rights determined by a communities status as patrilineal, matrilineal, or bilateral.  In matrilineal and parental kinship systems women inherit either equally with men or a 2:1 share (according to the Quaranic regulations or Adat), but in patrilineal systems women may not inherit at all or at least not in equal share.  Suwarni Salyo highlights that the 1985 draft bill on inheritance rights outlines provisions for the equal division of inheritance among men and women (Suwarni Salyo 1985, in MIZAN Journal #2, vol II, pp. 15-21).In Malaysia, Adat law requires an equal division of property between male and female children.

  In Indonesia more often than not the house in the family goes to the child (younger daughter usually) who will look after the parents, and a share of various kinds of property are given to both female and male children.  The flexibility of the residence patterns (a newlywed couple often move in with or near bride’s parents; and children often have a right to choose relatives that they would want to live with) does not produce static set ideas about rights to resources.  The notion of common marital property is more widespread than the idea that one spouse has exclusive ownership (Dube, 1997:83-87).

  Indonesian Adat tends to be more advantageous to women than sharia on the matter of inheritance.  Its most important rule is inheritance of ancestral land from a mother to her daughters.  In Kelantanese practice, the majority of the land transfers tended towards equal shares to men and women.  In the Kelantan Plain the essential rule to be stated here is that land rights belong to individuals and that children inherit from their mother and father separately.  The understanding of local Adat is to the effect that brothers and sisters should get equal shares. (Utas, 1983:132-133).

   Malay women have a variable, though always sizeable share in land rights.  The variation spans from the matrilineal option of Negri Sembilan, to families who follow the letter of Islamic saw.  The core rule of double inheritance for men is only given a theological explanation: ‘The Lord has ordered it to be so.’  The divine commandment does not contain any statements that men are stronger or more important persons.  Frequent resort to Adat inheritance practices creates an expectation on the wife in most marriages to provide roughly half of the new family’s land resources and usually also an equal contribution as far as work is concerned.  Reasoning given to Adat choice: ‘It is because women have fewer possibilities for earning money than men have’ (Utas, 1983:134).

   Negri Sembilan communities are also known for their particularly complex political history in which Minangkabau traditions are intertwined with the Muslim and Colonial structures.  It should be noted that the matrilineal traditions are supported by a codified customary law (Utas, 1983:130).  Although Islam is the accepted faith in Malaysia, among the people of Negri Sembilan and Malacca – who follow Adat perpateh (which essentially applies to matrilineal communities) rather than Adat temanggong (which essentially applies to bilateral communities) – local custom rather than Muslim law is effective in inheritance, the custody of children, and the division of property following divorce.

    In other regions Islam has considerable influence but Adat moderates its strict interpretation.  For example, a woman who has worked land is entitled to half of it whereas one who has not worked is entitled only to a third (Dube, 1997:154). 

   Among the Batak of Indonesia, emphasis is on patrilineal clans and patrilineal inheritance coincides with the patrilineal stress of Islamic family law.  In Minangkabau, by contrast, tradition was based on matrilineal clans and on passing property from a man to his sister’s son.  Among the Malay, in Adat or customary law, brothers and sisters have equal shares in inheritance.

   In contrast however, the Minangkabau combine their matrilineal customs with the patrilineal-based Islam, resulting in inheritance structures in which the right to use ancestral property, such as wet rice land or a longhouse, is inherited through females, while individual property, such as a vehicle, may be inherited through males in accordance with Quranic rules of inheritance.  In his wife’s home a man holds no property, and at best, only exercises supervisory control over the affairs of his wife’s property.  In his own natal home, a husband inherits property through his mother.  Males do not directly inherit rights to ancestral property and cannot pass to heirs that which they do not possess.  However, what they possess through individual effort can be passed to heirs according to the Islamic rules of inheritance.  Despite their matrilineal orientation, however, Minangkabau  royal ties are inherited through males.  Similar to the Minangkabau, the Cham (located in the Malay Peninsula, Indonesia, the Philippines, and elsewhere) are primarily matrilineal, with property inherited through women.

   Despite Islamic and national law, Sasak Adat prohibits women from owning or inheriting land.  But, within their orthodox Muslim communities, inheritance rights are governed and practiced according to Islamic law, while some villages allow females to inherit one out of every three shares of land.   Within the Philippines, the Maguindanao are characterized by a bilateral kinship system, therefore in a majority of cases males and females inherit equally.   This is also the custom among the Yakan, with sons and daughters inheriting equally from both their parents.

References

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Dube, Leela.  1997.  Women and Kinship: Comparative Perspectices on Gender in South and Southeast Asia. UN University Publications.

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