9 Customary Law Flashcards
Customary law
- A regular pattern of social behaviour which has been accepted by the bulk of a given society as binding upon its members
- Consists of customs and traditions of different races which acquire the characteristics of law gradually
- Customs which have legal consequences, namely their breach invokes legal sanctions.
- The question of proof may raise difficulties since customary law differs from one place to another, and most of it is practised through oral tradition (largely unwritten)
Recognition of Customary law
- The existence of customary law in Malaysia is well recognised and has been well established either through legislation or courts’ decisions
- Under the Federal Constitution, the definition of “law” includes “..and any custom or usage having the force of law in the Federation or any part thereof”
Types of Customary law
- Orang Asli
- Malay
- Chinese and Hindu
- Sarawak and Sabah native
Orang Asli customary law is governed by
the Aboriginal Peoples Act 1954
Administration, welfare and development of Orang Asli in managed by
Director General for Orang Asli Affairs
However, it is clearly stated that this shall not hinder any aboriginal headman (orang Asli chief) from exercising hid powers regarding aboriginal customs and beliefs in any aboriginal community.
Policy statement on the Administration of Orang Asli of Peninsular Malaysia released by Ministry of Home Affairs in 1961
Orang Asli’s rights to have customs, political systems and their own personal laws are recognised, in which they are allowed to keep practising so long as it does not contravene the state’s legal system
Orang Asli aboriginal land
- The Aboriginal Peoples Act 1954 provides for the creation of aboriginal areas and reserved land for aboriginal use
- These statutory rights do not give them title to the land, but a usufructary right of use (use or benefit from other persons property without owning it) according to their traditional way of life
- When such land is alienated/leased, the state authority is liable to pay compensation for any fruit or rubber tree claimed by the Orang Asli
Orang Asli customary law in recent times
In recent times, Orang Asli customary law is emerging as a recognised body of customs by the court in Malaysia, in which it allows them to claim proprietary rights to their traditional and ancestral lands along with other existing rights.
Malay Customary Law is called
Adat - based on oral traditions as well as case law
In Peninsular Malaysia, adat is commonly classified into 2
- Adat Perpatih - practiced by the Malays inhibiting Negeri Sembilan and certain parts of Malacca especially Naning
- Adat Temenggung - usually followed by Malays in other parts of the Peninsular
Adat Perpatih vs Adat Temenggung (Criminal Law)
Adat Perpatih: obtain restitution (compensating someone for the loss/harm they have suffered)
Adat Temenggung: retribution or punishment
Adat Perpatih vs Adat Temenggung (Governance System)
Adat Perpatih: Based on a social democratic system where power is divided between a few leaders.
Adat Temenggung: Aristocratic and autocratic. Aristocratic because the rules are made by decree of a ruler and autocratic because the rules tend to define a crime as an infringement of the ruler’s prerogative.
Adat Perpatih vs Adat Temenggung (Nature of legal/customary systems)
Adat Perpatih: Mainly expressed in perbilangan or kata adat (traditional/customary sayings) passed down orally from generation to generation.
Adat Temenggung: A body of written rules. It is found in several legal digests such as Undang-undang Melaka/Risalat Hukum Kanun, Undang-undang Kerajaan of Pahang, the Kedah Digest, the Undang-undang Kerajaan and the Ninety-nine Laws of Perak.
Adat Perpatih vs Adat Temenggung (Principles)
Adat Perpatih: Matrilineal principles (in favour of woman in the distribution of inheritance)
Adat Temenggung: Patrilineal principles (in favour of men in matters relating to the distribution of inheritance) and is fundamentally based on Islamic legal principles (or Hukum Syariah) - Adat Temenggung basically holds the same rules on distribution of inheritance as those prescribed by the Quran
The main aspects of adat perpatih lies in the division of land where land is divided into:
- Harta pusaka (customary property is vested in the female of the family)
- Harta sepencarian (matrimonial property/property jointly acquired during marriage, which is divided equally in case of divorce)
- Carian bujang (property acquired by either husband or wife before marriage and which may be:
(i) harta dapatan, ancestral property brought to the marriage by the wife, which reverts to her on divorce, and
(ii) harta pembawa, inherited property brought to the marriage by the husband which reverts to him upon divorce)
Chinese Customary Law
- The main problem faced by the courts in the Malay Peninsula in the 19th century was to ascertain what the substantive principles of this law should be
- No authoritative text nor precedent from China
- The Chinese customary law in the Straits Settlements and the Malay states was a creation of the courts
- The courts created a uniform body of Chinese customary law which they applied to the Chinese regardless of their religion or domicile
- Chinese customary laws were recognised by the courts in matters relating to marriage, divorce and inheritance
- Example: In an early case (commonly known as
“The Six Widow Case”, the court held that Chinese marriages under customary law were polygamous
For Hindu Customary law, the courts relied on (3)
- The evidence of experts on local customs of the Hindu community
- Authoritative texts of the 19th century
- Precedents from India
Unlike Chinese Customary law, Hindu customary law…
- did not impose the problem of ascertaining its substantive principles
- was not uniformly applied to all Indians of Hindu faith, in recognition of the fact that there existed a great variety of Hindu customary practices
- were related to the field of family law
2 unique features of Hindu customary law
- joint family property
- moneylending contracts in the Chettair community
Chinese and Hindu customary law
- The Law Reform (Marriage and Divorce) Act 1976 (“LRA”) abolished polygamous marriages among non-Muslims, and imposed a system of compulsory registration of marriage. It came into effect on 1/3/1982
- However, marriages under any law, religion, custom or usage before the effective date are not affected
- LRA does not affect customary forms of marriages. A couple may continue to marry according to customary rites provided such marriage is solemnised in accordance with LRA
Sabah and Sarawak customary law
- Application of customary law in Sabah and Sarawak is more extensive and systematic
- When Sabah and Sarawak joined Malaysia in 1963, the system of native customary law administered by Native Courts had long been an integral part of the state legal system
3 categories of customary law in Sabah and Sarawak
- Malay customary law
- Native customary law applicable to non-Malay natives
- Chinese customary law (codified in Sarawak)
Native customary law in Sabah and Sarawak is found in
- Administrative codes
- Legislation
- Judicial decisions
Sabah and Sarawak customary law codes
• A large part of the substantive content of native customary law in Sabah and Sarawak is found in codes
• The codes were summaries of the native customary laws
• The status of the codes (apart from those which are incorporated into statutes as subsidiary legislation) has never been established. From the cases it appears that while they do not bind the courts, they are highly persuasive
In Sabah, the best known codes are
Woolley’s Codes
Sarawak has more native customary law codes than Sabah. There are 2 categories:
(a) those which have been incorporated as subsidiary legislation under the Native Customary Laws Ordinance
1955
(b) those which have not been so incorporated but have been published at official direction
For the natives of Sabah and Sarawak, customary law remains an important source of law,
particularly as
a means of social control in remote communities, and in the administration of estates, family law, property and customary land rights
Relevance of customary law today
• The influence of customary law in Malaysia is decreasing, except for native land rights in Sabah and Sarawak, and native customary law.
• Adat Perpatih is still practiced in Negeri Sembilan and Naning, Melaka.
• Chinese and Hindu customary laws on marriage and divorce have diminished since the Law Reform (Marriage and Divorce) Act 1976 took effect on 1/3/1982.
• The Act introduced a uniform law for non-Muslims, abolishing polygamy among them.
• The Act doesn’t apply retrospectively, so it doesn’t affect polygamous or customary marriages contracted before its enactment.
• The Act does not apply to natives of Sabah, Sarawak, or Orang Asli unless they choose to marry under the Act.
• Native customary law remains applicable for non-Muslim indigenous communities in Sabah and Sarawak, depending on how long they maintain their traditions.
