Professional Documents
Culture Documents
Customary Law
Customary Law
Week 11
CUSTOM
Custom is a regular pattern of social behaviour and norms, perceived
as correct and accepted by a given society as binding on itself.
It is established through usage and the common consent of the
community.
It becomes the accepted norm or law of the place and regulates
daily activities including agricultural practices systems and the
settlement of disputes.
It is used as a means to generate harmonious relationships within
society and to resolve conflicts to maintain a cohesive society.
Custom and practice of society evolves, often by influence of
religions, beliefs and history.
CUSTOMARY LAW
In particular, rules have developed which identify custom with the
binding character of law. It is established that:
custom as used in the sense of a rule which in particular district, class or
family has from long usage obtained the force of law must be:
Ancient
Continued unaltered, uninterrupted, uniform, constant
Peaceable and acquiesced in
Reasonable
Certain and definite
Compulsory and not optional to every person to follow or not.
The acts required for the establishment of customary law must have been
performed with the consciousness that they spring from a legal necessity
and must not be immoral.
Haji Saemah v Haji Sulaiman adopted English rules - Woodroffe on
Evidence
Hickling viewed that these criteria are probably valid for the
recognition and proof of customary law in Malaysia generally.
EXAMPLES OF STATUTES
THAT DO NOT EXTINGUISH
UNWRITTEN CUSTOM
Negeri Sembilan, the land holding of customary land (tanah adat)
by the members of adat perpatih communities is recognised by the
states Customary Tenure Enactment Cap 215.
Re Haji Mansur bin Duseh Alias Matso Bin Duseh (Deceased):
there are unwritten laws, known as customary laws in Negeri Sembilan,
which remain to exist and
must be regarded as exist so long as it is not changed or repealed
s 4 of the National Land Code expressly provides that it does not apply to
lands held under customary title.
The introduction of the system of Crown grant must be regarded as
having been brought about mainly, if not exclusively, for conveyancing
purposes, and not with a view to altering substantive titles already
existing.
(Amodu Tijani v Southern Nigeria (Secretary) (3) [1921] Viscount
Haldane - Privy Council
Cited in Madeli [2008] 2 MLJ 677
EXAMPLES OF PERSONAL
LAWS IN MALAYSIA
Islamic laws: applicable to Muslim communities,
Communal based laws applicable to different racial based groups.
1. Adat perpatih applicable to adat perpatih communities in Negeri
Sembilan;
2. Certain property distribution laws practised by Malay
communities such as harta sepencarian;
3. Land tenure of the Orang Asli communities in Peninsular
Malaysia;
4. Various types of native customary laws in Sabah and Sarawak
applicable to a sheer number of different native groups.
Many state constitutions also provides for recognition of custom as part of the
law.
Constitution of Negeri Sembilan, art 32:
custom, practice and tradition of the society continue to be applicable
so long as it is not in conflict with the constitutional provisions.
STRAITS SETTLEMENT
In the Straits Settlement, which were the in the Crown colonies,
although the common law was provided to be the basis of the legal
system, the local laws and custom were not meant to be
abrogated.
1. The First Charter of Justice introduced the common law of
England to Penang in 1807
2. The Second Charter of Justice introduced the common law to
Malacca and Singapore in 1826.
3. In 1855, another Charter of Justice was granted to the Straits
Settlements which comprised Penang, Malacca and Singapore.
SINGAPORE
Yeap Cheah Neoh v Ong Cheng Neo, (1872) 1 Ky. 326 PC
It was held that the English common law was in force in Singapore
in so far as it is applicable.
But that the Charter of 1826 provides that the Court of the Colony
was to exercise jurisdiction as an Ecclesiastical Court in so far as
the religions, manners and customs of the inhabitants will admit.
MALACCA
In Malacca, which was ceded by the Dutch to the British in 1824,
lands under Dutch grants were converted to English fee simple in
1839.
The lands in the interior continued to be governed by local
customary law which recognized private ownership of land by right
of occupation with the capacity to be inherited.
The customary tenure protected both the owner and his sub-tenant
cultivator Malacca was ceded by the Dutch to the British through
the Anglo-Dutch Treaty of 1824.
MALAY STATES
Generally adat and Islamic law were applicable to Malays.
The non-Malays, mainly Chinese and Indians, were governed by their
personal laws or English law, if they were British subjects.
The Malay states were legally sovereign and independent and British
administrators applied the practices and customary laws of the
inhabitants as they understood them.
Minatur suggested that custom and practices of the locals were viewed
by the British as the common law of the people in those spheres of
lives where it applied. But the content of customary laws was often
misunderstood as they were unwritten, varied between districts and
changed gradually over time and through local judicial procedures.
During the advent of the British, some customary laws were coded
into writing. Examples were:
But the exact content of the laws
was in doubt.
1. Malacca Laws 1523
2. Pahang Laws 1596
3. Kedah Laws 1605
4. Johor Laws 1789
5. Minangkabau Digests
6. Perak Code
7. Ninety-Nine Laws of Perak 1765.
Extensive laws based on English common law principles and legislation were
gradually introduced. Reasons:
1. The difficulty in determining the exact local custom.
Some qadhis of districts who were often called upon to clarify the custom of the
locals were not really familiar with the exact adat in practice but instead gave the
content of Islamic law that they knew but not in practice locally.
2. The Anglocentric perspective of the English-trained lawyers.
This perspective believed that Britain was the superior nation.
This belief was used to justify colonisation in the 17-18 th centuries and shaped
perspectives on the status of local peoples and the standard of their laws.
The moral imperative of the white mans burden reflected a belief that Christian
nations should guide less civilized societies to enlightenment
At present, personal laws are far more restricted than they used to
be.
The Malay adat law or Malay customary law which is a mixture of
traditional practice and Islamic law, and native custom are still
widely practised and recognized under the law.
On the other hand Chinese and Hindu law on marriage and divorce
have diminished relevance since the coming into force of the Law
Reform (Marriage and Divorce) Act 1976.
The Act was largely based on English legislation. It introduced a
uniform law on marriage, divorce and its ancillary matters among
non-Muslims