CUSTOMARY LAW

Week 11

CUSTOMARY LAW OUTLINE

1. Custom and customary law
2. Custom as the source of law

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.

CUSTOM AND CUSTOMARY

LAW
In Malaysia the term custom, in Malay is known as adat, is used
interchangeably with customary law or native law.
Therefore, custom may be applied as a binding rule of law. Its
content and force are both derived from a constant uniformity of
conduct in the community or locality.
However, most custom and practices have no legal force. They are
a mere guideline to the members of society on the way to conduct
relation to each other with aim to achieve harmony in society
could not be enforced by court.

CUSTOM THAT HAS LEGAL

FORCE
However some custom may have legal force.
The custom which has legal force is known as customary law.
a regular pattern of social behaviour,
which has been accepted by the bulk of a given society as binding
upon its members,
because such behaviour has been found to be beneficial not only as a
means of encouraging inter-personal relations among them, but also as
being beneficial for maintaining a cohesive society for their individual
and collective betterment.
Reference: Ramy Bulan and Amy Locklear, Legal Perspectives on Native Customary Land
Rights in Sarawak (Suhakam (Human Rights Commission of Malaysia), 2009), 17

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

In Sarawak, the criteria for judicial recognition of custom are:

1. Generality & Antiquity: Is the custom general and of great
antiquity?
2. Reasonableness: Is it reasonable?
3. Consistency with morality: Does the custom offend against
morality?
4. Not contrary to public policy: Does the custom offend
against public policy?
Notes for the Guidance of the Officers in
Interpreting Order No L-4 (Law of Sarawak)

Hickling viewed that these criteria are probably valid for the
recognition and proof of customary law in Malaysia generally.

Examples of custom of different communities in Malaysia which are

normally enforceable include those related to:
family relationship such as rules relating to marriage and
divorce; duties and rights relating to custody of children;
property such as land tenure and the inheritance of ancestral
land ; distribution or inheritance of property.

CUSTOM VIS--VIS STATUTE

The legal status of a custom would be clear when it is codified in
the form of statutory provisions or recognised by a judicial
precedent.
Most of these are in the areas of family law and customary forms of
land tenure.
Except expressly stated, the existence of such statutes do not
necessarilyNor
preclude
related
customs
as an element
may
have
Anak Nyawai
v Borneo
Pulp Plantation
Sdn Bhd that
[2001]
6 MLJ
the force of law.
241:
where customs are codified, such codification does not extinguish
uncodified, related customs

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

EXAMPLES OF STATUTES THAT DO NOT

EXTINGUISH RIGHTS CREATED UNDER
UNWRITTEN CUSTOM
Statutes created for the purpose of regulating land use including
laws providing for the land registration system and giving in the
state authority the ownership and control of land such as the
National Land Code.

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

CUSTOM AS PERSONAL LAW

The customary law is also known as personal law.
This refers to the laws which are based on a persons religion,
community or national origin.
These customary laws are substantive laws which are applicable to
an individual according to his religion or place of domicile or origin.

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.

CUSTOM AS THE SOURCE OF

LAW
Custom is constitutionally recognized as a source of law.
Art 160(1) FC:
law include any custom or usage having the force of law in the
Federation or any part thereof.

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.

This position is similar to the position of English law in which custom is a

source of law distinct from other sources of common law

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.

In Penang, the introduction of English law was mainly intended to resolve

the legal chaos from the absence of laws applicable to British subjects,
which had led to perceived injustice for local inhabitants.
Regina v Willan [1858]:
the First Charter of Justice 1807 respected native religions and usages
and that the law in Penang before 1807 was the personal law of the local
people.
Cases should be decided by the principles of natural law and equity which
the judge said, in the case of British subjects, was English law.

Many judges, however, found that English law was applicable in an

erroneous belief that there was no legal system existing in Penang before
the First Charter of Justice

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.

Although the English deeds system was implemented in Malacca to replace

the former system of title including customary law, the rights in land held
under customary land continued.
The English Deed System was implemented gradually until fully implemented
in 1886. Among efforts made, except in Naning, to recognize the customary
land was Malacca Lands Customary Rights No. IX of 1886 (Ordinance 1886).
The 1886 Ordinance was replaced by National Land Code (Penang and
Malacca Titles) 1963 (Act 518) (in force on 1 January 1966).
Act 518 extended the Torrens system to replace the Deed System formerly in
practice.
The customary land in Naning, a district in Malacca, continued to be
governed by Adat Perpatih up to the present day

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.

Numerous customary laws were in

fact unwritten, varied in different
districts and changed gradually
through local judicial procedures.
Hooker pointed out that there is a
probability that the contents of the
written codes were never applied as
legal rules.

Legislation was introduced in matters thought not to be provided for in local

laws. In other areas, legislation was introduced to replace local laws to
achieve what was thought to be better justice.
Examples:
1. Adat criminal law was replaced by a penal code based on the Indian Penal
Code, and a criminal procedure code.
2. Evidence laws were introduced on the belief that they were more
favourable to a suspect and in consonance with the principle of natural
justice.
.Local custom on law of evidence such as declaring an accused person guilty
just because of rumors spread by flies or because the man did not stop to
ask for betel, was considered as unjust and unreasonable

In the absence of local laws, civil law enactments provided

references to the common law and equity of England.
The enactment was: Civil Law Enactment 1937 (FMS). The provision
was extended to other Malay states in 1951 and to the whole
Federation in 1956.
But the application of English law was subject to the consideration
of its consistency with local circumstances.
However, reference to English common law and equity was the
practice of judges even before the passing of the civil law
enactment.

In some other cases, local custom was thought to be unreasonable,

unjust and against public policy.
Example:
In Re The Will of Yap Kwan Seng, Deceased [1924] 4 FMSLR a
trust for ancestral worship was held as not for public religious or
charitable use and infringed the rule against perpetuities.

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