1.9 PROCESO UNIFICADO
1.9.2 FASES
Custom is a regular pattern of social behaviour and norms, perceived as correct and accepted by a given society as binding on itself.1 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.2 It is used as a means to generate harmonious relationships within society
and to resolve conflicts to maintain a cohesive society.3 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’.4
Discussion of custom is often associated with the practices of traditional society. Some consider custom as an ancient practice5 but custom is not necessarily ancient but accepted by a particular society and gradually evolves to adapt to changes in the society.6 Nevertheless, the practice, usage and norms of local people are a necessary constituent of the law and its development in many jurisdictions. Eugene Ehrlich, one of the founders of the sociology of law, saw law as not being just state law but also norms of conduct which form the popular consciousness. State law normally only applies to matters taken to the courts. From this perspective, law is wider in scope than the norms created and applied by state institutions.7 Custom, practice and usage of the people within the association become part of the law that people obey. In various areas, from business and company law to constitutional law, practice and convention are accepted as part of the law.
This position of custom as part of the law is also reflected in the observation by Chiba that
1 Ramy Bulan and Amy Locklear, Legal Perspectives on Native Customary Land Rights in Sarawak (Suhakam (Human Rights Commission of Malaysia), 2009), 17.
2 Ibid, 17.
3 Ibid, 17 citing Lakshman Marasinghe, Customary Law as An Aspect of Legal Pluralism: With
Particular Reference to British Colonial Africa (1998) 25 Journal of Malaysian and Comparative Law 7-44.
4 E K Braybrooke, 'Custom as a Source of English Law' (1951) 50(1) Michigan Law Review 71,
71.
5 See, eg, the definition of customary law in Bekker, JC, Seymour’s Customary Law in Southern Africa (Juta & Co, 5th edn, 1989) 11.
6 Raja Devasish Roy, Traditional Customary Laws and Indigenous Peoples in Asia (Minority
Rights Group International, 2005) <www.minorityrights.org/download.php?id=131>, 7.
7 E Ehrlich, Fundamental Principles of the Sociology of Law (1913) cited by Roger Cotterrell, The Sociology of Law: An Introduction (Butterworths, 1992), 27.
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The whole structure of law in a non-Western society is seen from a cultural point of view, formed in the interaction between received law and indigenous law.8
This may also be true of the law in Malaysia, including matters of land and resources. In Malaysia the term custom, in Malay is known as adat, is used interchangeably with customary law or native law.9 Custom is constitutionally recognized as a source of law.10
This is similar to the position of English law in which custom is a source of law distinct from other sources of common law.11 The Malaysian legal system is characterised by
legal pluralism.12 Each racial community has its own customary law. The areas of law to
which the custom of different communities normally applies includes matters of land tenure and the inheritance of ancestral land and property.13However, little is written and
known outside of Orang Asli communities about the custom of the Orang Asli communities.14 Discussion of custom in the context of the legal system is often confined to the groups with significant numbers: Malays, natives in Sabah and Sarawak, Chinese and Indians.
As discussed in Chapter 3, the customs of certain sections of society are codified in statutes. But such statutes do not necessarily preclude related customs as an element that may have the force of law.15 This is endorsed in Nor Anak Nyawai (No 1)16 that asserted the enforceability of unwritten custom although part of it is codified. It has been held that where customs are codified, such codification does not extinguish uncodified, related customs.17 This is similar to the position of Islamic law in Malaysia which has been incorporated into legislation. Reference to other written sources and to the opinions
8 Chiba, Masaji (ed.), Asian Indigenous Law: In Interaction with Received Law. (Kegan Paul
International, 1989), cited in William Twining, 'Diffusion of Law: A Global Perspective' (2004) 49
Journal of Legal Pluralism 1, 25.
9 Bulan and Locklear, above n 1, 17.
10Federal Constitution art 160(1). It defines the word law to include ‘written law, the common law
in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof’.
11 Braybrooke, above n 4, 72.
12 Aun, Wu Min, Malaysian Legal System (Pearson Malaysia, 1990), 168.
13 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. 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.
14 See, eg, Hooker, M B, 'The Challenge of Malay Adat Law in the Realm of Comparative Law'
(1973) 22 International and Comparative Law Quarterly 492.
15 See, eg, ibid. 16[2001] 6 MLJ 241. 17Ibid,285-6.
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of experts on the contents of Islamic law are not specifically mentioned in legislation which is normal practice.18
In investigating customs, McDonnell reminded us that they emerge over time. They ‘do not exist with pristine coherence just beyond the contemporary clutter’.19 Observing Cree customs in the province of Quebec and their relationship with the justice system of the state, he found that the intersection of belief and traditions between the group itself and the outside wider society ‘occurred in a very uneven manner … and, consequently, the views on, knowledge of and manner of learning Cree customs vary in highly significant ways’.20 This is specifically true in the context of the diverse Orang Asli communities who have had different experiences of contact and relationship with other groups. Dispossession and assimilation policies may have altogether eroded the customs and autonomy of some communities. Some community members, especially those who have converted to other religions, may not be interested in traditional beliefs or knowledge. Consequently, they may discourage their dissemination. In contrast, there are people, including the young, who are concerned to continue traditional belief and knowledge.21 They see the customary ideas, values, beliefs and stories as crucial to ordering their relations with others, as a guide to their future responsibilities, and as a way to retain their distinctiveness as a group.22 These perceptions have significant implications for their customs specifically with regard to whether they still have the force of law.
B Custom and Orang Asli Communities
The Orang Asli, similar to other groups considered as natives in Malaysia, also continue to be regulated internally by their own traditional laws on various matters including land and natural resources.23 The legal systems of indigenous peoples are recognized in international law as an integral part of their identity.24 Under Malaysian common law, in
18 See, eg, Siraj, M, 'Recent Changes in the Administration of Muslim Law in Malaysia and
Singapore' (1968) 17(11) International and Comparative Law Quarterly 221.
19 Roger F McDonnell, 'Contextualizing the investigation of customary law in contemporary native
communities' (1992) Canadian Journal of Criminology 299, 309.
20 Ibid, 309.
21 Interview data: Orang Asli representatives.
22 Svensson, Tom G, 'On Customary Law: Inquiry into an Indigenous Rights Issue' (2003) 20(2) Borialia, Acta 85.
23 See, eg, Chung, Yi Fan, The Orang Asli of Malaysia: Poverty, Sustainability and Capability Approach (Master of Science Thesis, Lund University Centre of Sustainability Science, 2010) <http://www.lumes.lu.se/database/alumni/08.10/Thesis/YifanCHUNG_Thesis_2010.pdf>, 15.
24United Nations Declaration of the Rights of Indigenous Peoples art 5 declares that: ‘Indigenous
peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions …’ The UN Special Rapporteur, Martinez Cobo in JM Cobo, 'Study of the Problem of Discrimination Against Indigenous Populations, United Nations NE/CN.4/Sub.2/1986/7/Add. 4' (1989) acknowledges that indigenous peoples:
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matters of indigenous rights to land and resources, the custom of indigenous communities including the aborigines determines the content of the communities’ title and interests (Chapter 6.II). The rights and interests under the custom remain in force unless extinguished by clear and plain legislation or by an executive act authorised by such legislation. In Nor Anak Nyawai (No 1),25 the High Court held that custom is accepted as law if it is proved to be a long-established practice. It follows the proposition stated in Halsbury's Laws that,
as a general rule proof of the existence of the custom as far back as living witnesses can remember is treated, in the absence of any sufficient rebutting evidence, as proving the existence of the custom from time immemorial.26
In a brief survey of Orang Asli representatives interviewed for this research, on the Orang Asli’s perspective of custom, it appears that custom continues to have significance. A Semai from Perak described custom as a community system that regulates their communal life.27 It is the crux of the peoples’ economic, social and political lives. For them, institutions, which appear to be separated in other societies, should continue to be united so that custom often appears to be both law and religion. A Temuan asserted,
Custom is our religion. Different groups have their own custom and many still hold strongly to their own custom, even the young generations.28
As forests are part of the communities’ environment, he highlighted that Orang Asli communities have their own rules regulating different relationships in different contexts of their life. Responses from the researcher’s interviews with other Orang Asli representatives reflected a similar relationship between peoples in other communities which have their own political authority and regulation.29 They are obliged to observe specific rules in relation to exploitation of resources within the forest.30 This represents
are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal system ...
25 [2001] 6 MLJ 241, [30].
26 Halsbury's Laws of Malaysia, Vol 12 (4th ed), [422]. 27 Interview data: An Orang Asli representative from Perak.
28 This is the researcher’s translation of a conversation with a Temuan, an Orang Asli
representative and activist from Selangor (Interview data). The interview is in Malay.
29 Interview data: Orang Asli representatives (two Semais from Perak, another Temuan from
Selangor, a Jakun from Pahang),
30 Eg, in the words of a Temuan from Selangor:
Rimba' basik rumah berbasa, lalu' bertabik, naik rumah bertingkat, masuk rumah berpintu, duduk bertempat, makan berajak, cincang beralas, berlumpat bertumpu kepada sapa? lembaga adat: cekera, jenang berlimo, batin.
This is a kind of poem in the community’s language. Briefly, he says that there is rule in everything for human beings which must be observed by the community. There are even specific rules to observe in the forests. It is of significance to the extent that it is equated with the manner in which
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the significance to them of the forest resources which are to be cared for in the interests of the community as a whole. Similar principles are also seen in the manner in which land and forests are used among the Batek in the eastern region of the Peninsular31 and the Semai of the middle-eastern region.32
II RIGHTS AND INTERESTS OF THE ORANG ASLI IN FORESTS