Divers Paths to Justice - English - Forest Peoples Programme

Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiamentioned earlier were initially related to religious and family laws, theseexceptions have extended to proprietary rights and have evolved as a basisfor recognition of fundamental human rights and minority rights.The intent of this paper is to deal only with customary laws under theFederal Constitution. Given the plural legal system that now exists, itconsiders how the courts have or can employ this plurality to achieve justiceand equality to prevent the law from being oppressive, particularly forindigenous peoples and their land rights. It argues that native customaryrights must not merely be reduced to those that the common law is preparedto accept, nor should customary laws be interpreted through the prism ofcommon law, but rather must be taken in their own context. Their validity isto be determined by reference not to the common law, but to the supremelaw; the Federal Constitution. This means that the evidentiary rules andmethods of proof must take into account the uniqueness of customary lawsand the rights that accrue there under as fundamental rights protected by theFederal Constitution.To say that a right is protected by the Federal Constitution elevates its statusand imposes a greater obligation on the government with respect to actionspotentially affecting those rights. As the supreme law of the land, theFederal Constitution provides the ‘plumb line’ against which all laws andactions of the administrators must be measured and a court may declareultra vires or void those laws that are inconsistent with the FederalConstitution.Customs as a source of lawThe definition of law under Art 160(2) of the Federal Constitution Statesthat law ‘includes written law, the common law in so far as it is in operationin the Federation or any part thereof and custom or usage having the forceof law’, thus making customary law an integral part of the legal system.Indeed, customary laws of the various groups inhabiting Malaysia,including Malay, Chinese and Hindu customary laws, have long beenrecognised in Malaysia. However, it is aboriginal and native customary laws43