SOURCES OF LAW-- Customary Law

What is custom?

A pattern of behaviour accepted and expected conduct in a community.

Obligatory on those within its scope. Customary law: Custom, if followed from one

generation to another, in the course of time it acquired the character of law.

Uncodified, also known as “living law”

Characteristics of a valid custom

New Windsor Corporation v Mellor [1975] 3 All ER 44

A valid custom is a good custom. In order to be good, a custom must:1. Be a custom from time immemorial

Continued enforcement for a long time; followed from one generation to another.

2. Reasonable3. Certain

Custom in the Federal Constitution

Law includes “customs and usages having the force of law”

Customs in Malaysia

Malay customary law or ‘adat’ Non-Malay ‘adat’

Chinese customary law Hindu customary law

Custom of the aborigines or ‘orang asli’ in West Malaysia

Native customary law in East Malaysia

WEST MALAYSIA

Malay customary law

Adat

Adat Perpatih Matriarchal customary law Embodied in written form in digests of

customary law from Sungau Ujong, Perak and Kuala Pilah.

Adat Temenggong Can be found in digests: Undang-undang

Melaka, Pahang digest, Johore digest, digest of Kedah laws, Ninety-Nine Laws of Perak.

Adat Perpateh

Election

Power in the family laies in the hands of the Mamak (mother’s elder brother);

The Buapak (heads of sub-tribes) would be elected by the Mamak;

The Lembaga (tribal chiefs) by the Buapak; The Undang (territorial heads) by the

Lembaga; The Yam Tuan Besar (ruler of State) by the

Undang (Yam Tuan Besar must have royal blood)

Dato’ Menteri Othman Baginda v Dato’ Ombi Syed Alwi [1981] 1 MLJ 29

Election of Undang of Jelebu — Whether election contrary to adat laws and constitution of luak of Jelebu

Criminal jurisdiction

The accused will be tried by his own family.

If rejected by own family, no other choice but to kill, banish or enslave the accused.

Aimed at restitution and compensation of the injured rather than punishment or revenge on the offender.

Murder – payment of blood money (restoring the loss of a bread-winner)

Evidence

Relied heavily on circumstantial evidence

E.g. fluttering heart, coming home wet and late at night, torn shirt etc.

Circumstantial evidence was enough to sentence the accused.

Inheritance and division of property

Harta Pusaka (Ancestral Property) – the daughter inherits

Carian Bujang Harta Dapatan (Acquired Property) –

property of the wife Harta Pembawa (Accompanied Property)

–property of the husband Carian Laki Bini (Prpoerty acquired

by husband and wife)

Hasmah bt Omar v Abdul Jalil [1958] MLJ 10

Adat Perpateh — Divorce — Claim for share of Charian-laki-bini property

In this case a divorced wife claimed for half share of her husband's land and certain property according to the Adat Perpateh because the property was their charian-laki-bini.

Customary land in Negeri Sembilan and Malacca

Article 90: Special provisions relating to customary land in Negeri Sembilan and Malacca, and Malay holdings in Terengganu

90. (1) nothing in this Constitution shall affect the validity of any restrictions imposed by law on the transfer or lease of customary land in the State of negeri Sembilan or the State of Malacca, or of any interest in such land.

Munah bt Hj Badar v Isam bt Mohd Syed [1936] MLJ 34

(Malacca Lands Customary Rights) — Naning Custom …

In the case of land held by the Naning Custom, if Pesaka land of a suku is registered in the name of some person not of the tribe there remains a right vested in the tribe to redeem the land. 

Adat Temenggong

Source originated from Adat Perpatih but was influenced by Hinduism.

The custom was changed from matriarchal to patriarchal.

Also influenced by Islam later on.

Social organisation

Sultan

Bendahara (Prime Minister and Chief of war)

Temenggong (Chief of Police)

Menteris

Criminal law

Retaliation (qisas) Evidence – relied on circumstantial

evidence Sultan determines the punishments

and has power to pardon offenders – A 42

Followed the Hindu concept of punishment based on the status of the person in the society.

Family structure

Emphasised the importance of having a son for the purposes of inheritance and in order to lead the family.

Harta Sepencharian (Jointly acquired property)

See Ramah v Alpha [1923] FMSLR 179 Robert v Umi Kalthom [1963] 1 MLJ

163 Boto v Jaafar [1985] 2 MLJ 98

Boto v Jaafar

The parties were married in 1966. At the time of the marriage the plaintiff-wife worked as a coffee-shop assistant and the defendant-husband carried on a fishmonger business in Dungun. The business of the defendant prospered and during the marriage he bought the matrimonial home, a piece of land, 4 fishing boats, fishing nets and a fish stall.

They divorced in 1974 and on the divorce the defendant only paid the plaintiff her maintenance for the period of eddah. 

The plaintiff applied to High Court for a declaration that she was entitled as harta sepencarian to one-half share in all the properties acquired during her marriage to the defendant and to one-half of all the income derived from the properties since their divorce.

Court: Harta sepencarian is based on customs practised by the Malays and rests upon the legal recognition of the part played by a divorced spouse in the acquisition of the relevant property and in improvements done to it, in cases where it was acquired by the sole effort of one spouse only. It is due to this joint effort or joint labour that a divorced spouse is entitled to a share in the property.

Court: The share of one-third is awarded to

the plaintiff because the evidence shows that she was helping the plaintiff's business indirectly as a partner in his business trips. The income derived from the properties must likewise be divided into one-third and two-third shares.

Current practice

Harta sepencarian is based on Islamic law.

Now under jurisdiction of Syariah Courts.

Adat Temenggong in digests

Malacca Digest Kedah Digest Johor Digest Ninety-Nine Laws of Perak

Article 76 (2) “No law shall be made in pursuance of paragraph (a) of Clause (1) with respect to any matters of Islamic law or the custom of the Malays or to any matters of native law or custom in the States of Sabah and Sarawak and no bill for a law under that paragraph shall be introduced into either House of Parliament until the Government

of any State concerned has been consulted.”

Cases

Sahrip v Mitchell Malay custom on acquiring

ownership of land was recognised

Roberts v Umi Kalthom [1966] 1 MLJ 163

Malay customary law — Harta sapencharian

Chinese & Hindu customary law

In 1794 there were 3000 Chinese, and 1000 Indian in Penang.

Between 1880-1890, Chinese migration was at the rate of 150 000 annually.

By the 1920s it increased to 300 000 annually.

Between the 1840s and 1930s there were 1.9 million Indian citizens that entered the Malay States.

Chinese and Hindu customary laws were recognised but limited to family matters and to some extent inheritance.

Dorothy Yee Yeng Nam v Lee Fah Kooi [1956] MLJ 257

Thompson CJ: “…the only conclusion that can be drawn from

the Six Widows Case supra, which is the classical case on the subject, is that as regards Chinese the question of personal law is based on race. The Courts in effect have given judicial recognition to certain customs prevalent or thought to be prevalent among persons of Chinese race irrespective of their domicile or religion. They have thus set up what might be called a sort of common law as affecting persons of Chinese race…”

Charitable trust – a customary law not recognised

Ong Cheng Neo v Yeap Cheah Neo Privy Council: “Although it certainty

appears that the performance of these ceremonies is considered by the Chinese to be a pious duty, it is one which does not seem to fall within any definition of a charitable purpose or use.”

See also Choa Choon Neo v Spottiswoode; Re Yap Kwan Seng [1924] FMSLR 313

Polygamous union – a customary law recognised

Chea Thye Pin v Tan Ah Loy -- status of secondary wives.

Six Widows case Re Ding Do Ca Dorothy Yee Yeng Nam

Re Ding Do Ca, Decd [1966] 2 MLJ 220

Chinese marriage — Validity of — Whether Chinese who has married under Christian Marriage Enactment (FMS Cap 109) could contract a polygamous marriage according to Chinese custom 

The deceased had in 1923 married one Madam Wong under the Christian Marriage Enactment and subsequently in 1937 he went through the form of marriage according to Chinese custom with Madam Ngoi.

After his death Madam Wong applied for and obtained letters of administration to his estate; subsequently Madam Ngoi and her children commenced the action against Madam Wong and sought declarations that she was the widow of the deceased and that her children were his lawful children.

Held: (1) in regard to persons of the Chinese race the courts

have given judicial recognition to certain customs which have been imputed to such persons and under such customs Chinese can contract a polygamous marriage;

(2) there is nothing in the Christian Marriage Enactment which renders a party who has married under it incapable during its continuance of contracting a polygamous marriage and therefore in this case the deceased could contract a valid marriage with Madam Ngoi, despite his earlier marriage with Madam Wong under the Christian Marriage Enactment.

Solemnisation of marriage CHING KWONG KUEN v SOH SIEW YOKE [1982] 2 MLJ 139 The respondent first met the appellant in 1957 when she was nineteen

years old, and working in a bar. The respondent came from a family with humble background and the appellant from a rich and respectable family. At the end of 1958 they had sexual relations and he promised that he would marry her. Subsequently they lived together at her place in Geylang. The appellant kept putting off the subject of marriage until 1959, on the persistent promptings of the respondent's mother.

On the 8th Moon in 1959, a simple ceremony was arranged and the appellant gave the respondent's mother $1,000 towards the expenses for the wedding. The respondent then bought cakes and distributed to her mother's and her own friends. On the day of the wedding both the respondent and the appellant served tea to the respondent's mother who then gave them each a red packet. The couple served tea to the respondent's aunts and they burnt joss-sticks and worshipped the Goddess of Mercy. The ceremony was attended by twenty to thirty people.

The respondent left the matrimonial home on May 26, 1977 after a violent quarrel with the appellant.

The appellant disputed that the respondent was ever his wife despite the fact that they had been living together for nineteen years and she bore him three children.

Whether there was a valid marriage Court: The respondent and the appellant

had gone through a ceremony of marriage, that they had lived openly as husband and wife and that there was a valid marriage existing between.

Divorce

WOON NGEE YEW AND OTHERS v NG YOON THAI AND OTHERS [1941] 1 MLJ 37

The plaintiff claimed to be the widow of the deceased, being a t'sip or secondary wife. It was alleged that she had been divorced during the lifetime of the deceased.

Held:There is sufficient evidence that the deceased severed his relations with his wife, that is to say, divorced her according to Chinese custom:

she refused to return to him he informed various friends and relations that he had

done so, the fact of such severance was fully recognized by the

plaintiff by her conduct,

This is sufficient to constitute a divorce of a secondary wife according to the custom among Chinese recognized in Perak.

Hindu customary law

Monogamous union

PARAMESUARI v AYADURAI [1959] 1 MLJ 195

Divorce — Marriage according to Ceylon Tamil Hindu custom — Re-marriage of spouse with another woman while first marriage still in legal existence — Whether first marriage a monogamous marriage

Validity of marriage

NAGAPUSHANI v NESARATNAM & ANOR [1970] 2 MLJ 8

Marriage by Hindu rites Cohabitation and reputation of

husband and wife  for many years A valid marriage existed

The plaintiff claimed to be the wife of the first defendant and the daughter-in-law of the second defendant who was the mother of the first defendant. She claimed that on 30th April 1942 at Sungei Buloh, she went through a ceremony of marriage with the first defendant according to Hindu rites. The defendants denied this.

She came to Malaya from Ceylon at the age of 17 with her sister at the invitation of the father of the first defendant who wanted to arrange a marriage between her and the first defendant.

A copy of the invitation card was produced. The names of the sponsors of the wedding were stated in the invitation card

Friends and relatives were invited. The plaintiff said that she was given away by

Kulathungam and his wife at the wedding. She produced a "tali" (a golden chain) which she

claimed the first defendant tied around her neck during the wedding ceremony as a symbol of marriage. This was recognised by the goldsmith.

She called witnesses who attended the wedding. The plaintiff said that she and the first defendant

cohabited at various places The first defendant agreed that he and the plaintiff

had lived under the same roof. When they were living together, they went to film

shows, attended dinners and visited relatives together.

The plaintiff produced a photograph showing her and the first defendant taken about a year after the wedding. P.W.5 testified that on some occasions plaintiff and the first defendant had paid him social calls.

How to prove customary law?

If the court is familiar with the custom…

Court must take judicial notice of the custom.

Need not be proved in court.

If the court is not familiar with the custom?

Bring expert evidenceTAN KUI LIM & ANOR v LAI SIN

FAH [1980] 1 MLJ 222 Validity of adoption under Chinese

customary law of Hakka. Court relied on evidence given by

expert i.e. a Registrar of Chinese Marriage for the Hakka community, and a recognised leader of the Chinese Community.

See also RE ESTATE OF CHONG SWEE LIN; KAM SOH KEH v CHAN KOK LEONG & ORS [1997] 4 MLJ 464

Validity of Chinese customary marriage.

PARAMESUARI v AYADURAI [1959] 1 MLJ 195

The Court accepted the evidence of the priest who performed the marriage ceremony between the petitioner and respondent, and expert evidence on the traditional features of a marriage between Ceylon Tamil Hindus.

The priest testified to the fact that he had celebrated over 800 such marriages and this was the first instance he had come across of a party to any of those marriages re-marrying during the lifetime of the other spouse. 

Status of customary marriages after Law Reform (M&D) Act 1976

Law Reform (Marriage and Divorce) Act 1976 -- application

Came into force 1 March 1982

S 3 (4) This Act shall not apply to any native of Sabah or Sarawak or any aborigine of Peninsular Malaysia whose marriage and divorce is governed by native customary law or aboriginal custom unless— (a) he elects to marry under this Act; (b) he contracted his marriage under the Christian

Marriage Ordinance [Sabah]; or (c) he contracted his marriage under the Church

and Civil Marriage Ordinance [Sarawak]

Subsisting valid marriages deemed to be registered under this Act S 4 (1) Nothing in this Act shall affect the

validity of any marriage solemnized under any law, religion, custom or usage prior to the appointed date.

(2) Such marriage, if valid under the law, religion, custom or usage under which it was solemnized, shall be deemed to be registered under this Act.

Disability to contract marriages otherwise than under this Act

S5. (1) Every person who on the appointed date is lawfully married under any law, religion, custom or usage to one or more spouses shall be incapable, during the continuance of such marriage or marriages, of contracting a valid marriage under any law, religion, custom or usage with any other person, whether the first mentioned marriage or the purported second mentioned marriage is contracted within Malaysia or outside Malaysia.

Marriage contracted when prior marriage still subsisting

S 6. (1) Every marriage contracted in contravention of section 5 shall be void.

S 7. (1) Any person lawfully married under any law, religion, custom or usage who during the continuance of such marriage purports to contract a marriage under any law, religion, custom or usage in contravention of section 5 shall be deemed to commit the offence of marrying again during the life-time of husband or wife, as the case may be, within the meaning of section 494 of the Penal Code.

Registration of Marriage

S 27. The marriage of every person ordinarily resident in Malaysia and of every person resident abroad who is a citizen of or domiciled in Malaysia after the appointed date shall be registered pursuant to this Act.

Chia Siew Li v Liew Khey Cheong [2010] 4 CLJ 36

Deceased and plaintiff wanted to register their marriage on 26.5.2006. On 16.5.2006 the man unexpectedly died of a heart attack.

The plaintiff was not a “wife”. Federal Court: the customary

marriage between the plaintiff and the deceased was void and ought not to be recognised for non-registration.

Chai Siew Yin v Leong Wee Shing

The Federal Court stated that the customary marriage between the P and D was void and not to be recognised for non-registration.

The legal consequence of this was that the two childern born out of the relationship between P and D are illegitimate children.

Dissolution of marriage

Breakdown of marriage to be sole ground for divorce.

S 53(1): Either party to a marriage may petition for a divorce on the ground that the marriage has irretrievably broken down.

Circumstances where marriage has irretrievably broken down

S 54:

(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition.

Dissolution by mutual consent

S 52: If husband and wife mutually agree that their

marriage should be dissolved they may after the expiration of two years from the date of their marriage present a joint petition accordingly and the court may, if it thinks fit, make a decree of divorce on being satisfied that both parties freely consent, and that proper provision is made for the wife and for the support, care and custody of the children, if any, of the marriage, and may attach such conditions to the decree of divorce as it thinks fit.

Custom of the aborigines of West Malaysia or “orang asli”

Definition of “aborigine” in Aboriginal Peoples Act 1954

Section 3(1)

(a) any person whose male parent is or was, a member of an aboriginal ethnic group, who speaks an aboriginal language and habitually follows an aboriginal way of life and aboriginal customs and beliefs, and includes a descendant through males of such persons;

(b) any person of any race adopted when an infant by aborigines who has been brought up as an aborigine, habitually speaks an aboriginal language, habitually follows an aboriginal way of life and aboriginal customs and beliefs and is a member of an aboriginal community; or

(c) the child of any union between an aboriginal female and a male of another race, provided that the child habitually speaks an aboriginal language, habitually follows an aboriginal way of life and aboriginal customs and beliefs and remains a member of an aboriginal community.

Classification of orang asli tribes

Senoi: Semai, Temiar, Jah Hut, Che Wong, Mah Meri, Semaq Beri.

Negrito: Kensiu, Kintak, Jahai, Lanoh, Mendriq, Batek.

Proto-Malay: Temuan, Semelai, Jakun, Orang Kanaq, Orang Kuala, Orang Seletar.

Application of Law Reform (M&D) Act

S 3 (4) This Act shall not apply to any native of Sabah or Sarawak or any aborigine of Peninsular Malaysia whose marriage and divorce is governed by native customary law or aboriginal custom unless— (a) he elects to marry under this Act; (b) he contracted his marriage under the

Christian Marriage Ordinance [Sabah]; or (c) he contracted his marriage under the Church

and Civil Marriage Ordinance [Sarawak

Customary land of the aborigines

The Aboriginal Peoples Act 1954 enables aborigines to dwell in land areas designated for their exclusive use.

Referred to as “aboriginal areas” (section 6) or “aboriginal reserves” (section 7).

Adong bin Kuwau & Ord v Kerajaan Negeri Johor [1997] 1 MLJ 418

Held:

“Generally, the aboriginal peoples' common law rights over the land include the right to move freely about their land, without any form of disturbance or interference and also to live from the produce of the land itself…

In Malaysia specifically, the aborigines' common law rights include, inter alia, the right to live on their land as their forefathers had lived and this would mean that even the future generations of the aboriginal people would be entitled to this right of their forefathers”.

Sagong Tasi v Kerajaan Negeri Selangor [2002] 2 MLJ 591

The orang asli of the Temuan tribe have proprietary rights over their customary land and therefore when it was acquired by the State, they were entitled to compensation under the Land Acquisition Act 1960.