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Family Law and Customary Law in Asia: a Contemporary Legal Perspective Family Law and Customary Law in Asia FAMILY LAW AND CUSTOMARY LAW IN ASIA: A CONTEMPORARY LEGAL PERSPECTIVE FAMILY LAW AND CUSTOMARY LAW IN ASIA: A CONTEMPORARY LEGAL PERSPECTIVE Editor, DAVID C. BUXBAUM • Springer-Science+ Business Media, B. V. 1968 <Cl 1968 by Springer Science+Business Media Dordrecht Originally published by Martinus Nijhoff, The Hague, Netherlands in 1968 Softcover reprint of the hardcover 1st edition 1968 All rights reserved, including the right to translate or to reproduce this book or parts thereof in any form. ISBN 978-94-017-5794-2 ISBN 978-94-017-6216-8 (eBook) DOI 10.1007/978-94-017-6216-8 TO SHEILA BUXBAUM BIER But there was no breeze in the air, no cloud in the sky. • There was onry a presence. Andre Schwarz-Bart, The Last of the Just The Conference on Family Law and Customary Law in Asia of which this volume is a result was sponsored by THE ASSOCIATION OF SOUTHEAST ASIAN INSTITUTIONS OF HIGHER LEARNING Singapore, April, 1964 PREFACE The Conference on Family Law and Customary Law in Asia, which was held in Singapore in April, 1964, was sponsored by the Association of Southeast Asian Institutions of Higher Learning (A.S.A.I.H.L.). This organization, founded in 1957, " ... has the objective of promoting the economic, social, cultural and civic welfare of the people of the South­ east Asian region by the exchange of information, teachers and students among the institutions of higher learning of the region and by sug­ gestions for cooperative action in the development of educational and research programmes by such institutions." The Administrative Board of A.S.A.I.H.L. includes: Col. Dr. Sjarif Thajeb, Rector, University oflndonesia (President): Prof. Sir Lindsay Ride, Vice-Chancellor, University of Hong Kong (Vice-President); Dato Sir Alexander Oppenheim, Vice-Chancellor, University of Malaya; Miss Helena Z. Benitez, Executive Vice-President, Philippine Women's University; Prof. Huang Ying Jung, Nanyang University (Singapore); Prof. Dr. Svasti Daengsvang, Rector, University of Medical Science (Thailand); Prof. LeVan Lam, University of Saigon (Vietnam). The very able Secretariat located at Chulalongkorn University in Bangkok is composed of Prof. Prince Prem Purachatra, Executive Secretary; Dr. Prachoom Chomchai, Secretary; Dr. Kusuma Sani­ twongse, Assistant Secretary; and Dr. Lydia na Ranong, Administra­ tive Assistant. A.S.A.I.H.L. has been extremely active since its inception, and, for example, since December 18, 1965, has sponsored or will sponsor the following conferences: Fourteenth Meeting of the Administrative Board (Thammasat University, Bangkok); Seminar on the Role of Universities in Human Resource Development (University of Malaya, Kuala Lumpur); Seminar on the Role of Universities in Economic and Social Development (University of Singapore, Singapore); Seminar on Mathematics and Natural and Physical Sciences (Saigon); Seminar on Agriculture and Veterinary Science (Bogor) ; Seminar on Language Problems in Southeast Asian Universities (Philippine Women's Uni­ versity, Manila); and Sixth General Conference (Bangkok). VIII PREFACE The Asia Foundation was most generous in supporting the conference both financially and administratively. Particular thanks must go to Lindley S. Sloan, the Asia Foundation Representative in Singapore during the conference, who was of substantial assistance in eliminating obstacles and expediting administrative procedures so that delegates from all over the world might be brought to Singapore for the confer­ ence. The Lee Foundation also helped to support some of the delegates, and its help is sincerely appreciated. The Far Eastern Department of the University of Washington was most generous in supporting me both financially and otherwise so that I had the opportunity to edit these papers. Particular thanks must be expressed to Professor Hellmut Wilhelm who has withstood my con­ tinual requests with equanimity and guided and assisted me. Eileen Dillon not only helped to type the manuscript, but also made numerous helpful suggestions. Finally my wife, Dvorah Buxbaum, who proofread the manuscript on several occasions with care and diligence must be thanked for her patience and forebearance as well as her help. Unfortunately the papers of all the delegates to the conference could not be published at this time for technical reasons. The delegates to the conference of course are the ones who made the conference a success and made this book possible. Particular thanks to Dr. George Kurian, Head of the Far Eastern Department ofVictoria University of Welling­ ton, and to Professor Huang Yin Jung, Head of the Department of Political Science, Nanyang University, Singapore, whose papers are not included but who played a substantial role in the conference. D. c. BUXBAUM Hongkong, 1966 CONFERENCE PARTICIPANTS Professor S. Takdir Alisjabbana, Head, Department of Malay Studies, University of Malaya, Kuala Lumpur, Malaysia Dr.Joseph Minattur, ProfessorofLaw, Nanyang University, Singapore Mr. Benedict Sandin, Sarawak Museum, Kuching, Sarawak, Malaysia Dr. Vermier Yanatak Chiu, University of Hong Kong (Deceased) U Hla Aung, Esquire, Faculty of Law, University of Singapore, Singa­ pore Professor Luang Chamroon Netisastra, Faculty of Law, Thammasat University, Thailand; Former President of the Supreme Court of Thailand Professor Adul Wichiencharoen, Dean, Faculty of Liberal Arts, Thammasat University, Thailand Inche Ahmad bin Mohamed Ibrahim, State Advocate-General, Singa­ pore Inche Haji Mohamed Din bin Ali, Municipal Secretary, Kuala Lum­ pur, Malaysia Dr. S. P. Khetarpal, Faculty of Law, University of Singapore, Singa­ pore Dr. K. lshwaran, Department of Sociology, York University, Toronto, Canada; Editor, Journal of Asian and Mrican Studies Professor Nguyen Xuan Chanh, Faculty of Law, University of Saigon, Vietnam Professor Hassanally A. Rahman, Principal, Sind Muslim Law College, Karachi, West Pakistan Dr. Syed Hussein Alatas, Department of Malay Studies, University of Malaya, Kuala Lumpur, Malaysia Dr. Victor M. Fie, Professor of International Relations, Nanyang University, Singapore Dr. Voon-Kai Foo, Professor of Commercial Law; Head, Department of Banking and Finance, Nanyang University, Singapore Professor Huang Yin Jung, Head, Department of Political Science, Nanyang University, Singapore Professor T. C. Hwang, Executive Secretary, Law Research Institute, Taipei, Taiwan, Republic of China X CONFERENCE PARTICIPANTS Dr. George Kurian, Head, Department of Asian Studies, Victoria University of Wellington, Wellington, New Zealand Dr. Pablo Tangco, Graduate School, University of Santo Tomas, Philippines Mrs. Ann Wee, Social Studies Department, University of Singapore, Singapore DAviD C. BuxBAUM, Conference Chairman and Organizer University of Washington Seattle, Washington TABLE OF CONTENTS Preface ........... Vll Coriference participants . lX INTRODUCTION (David C. Buxbaum) PART I. THE NATURE OF CUSTOMARY LAW IN DIVERSE ASIAN SOCIETIES 1 CHAPTER I. CUSTOMARY LAW AND MODERNIZATION IN INDONESIA (S. Takdir Alisjabbana) . 3 CHAPTER II. THE NATURE OF MALAY CUSTOMARY LAW (Joseph Minattur) ..... 17 Introduction . 17 Adat Melayu (Malay Custom) . 18 Basic Laws ..... 20 Adat Law and Custom 21 Constitutional Structure 23 Land Tenure . 26 Husband's Position . 29 Administration of the Adat 32 Conclusion 37 CHAPTER III. SOME IBAN (SEA DAYAK) CUSTOMARY LAW IN SARAWAK (Benedict Sandin) . 40 Customs Regarding Engagement, Marriage, and Widowhood 41 Nanya Bini (Engagement), 41. - .~.Yelah Pinang (Marriage Feast), 41. - Sarak Belega (Temporary Divorce), 41.- Sarak Rama (Ordinary Divorce), 42.­ Sarak Manis (Mutual Divorce), 42. - Bedua Reta (Division of Property), 42. - Bedua Anak (Division of Children), 42. - Balu (Widowhood), 42. - Berangkat Tulang (Uprooting the deceased's bones), 43. - Ngemulu Antu (Disrespect of the decreased husband), 43. - Butang Antu (Disrespect of the dead by adultery), 43.- Bebini Maioh (Polygamy), 43. Codification of Customary Law ............ 43 CHAPTER IV. SOME NOTES ON CHINESE CUSTOMARY MARRIAGE ( Vermier ranatak Chiu) . 45 The Six Rites . 45 xii TABLE OF CONTENTS The Master of Matrimony and the Go-between 45 Position of Women in Old China 46 Concubinage- Secondary Wives 47 Ju Kung. 48 Fu Cheng. 48 Chien T'iao . 48 T'ung Tang Hsi . 49 Some Customary Restrictions on Marriages 49 CHAPTER V. SOME NOTES ON INDIAN INFLUENCE ON MALAY CUSTOM- ARY LAw (Joseph Minattur) . 50 PART II. CUSTOMARY LAW AND THE FORMAL LE­ GAL INSTITUTIONS: INTERACTION AND CONFLICT. 65 CHAPTER VI. THE EFFECT OF ANGLO-INDIAN LEGISLATION ON BURMESE CUSTOMARY LAW (U Hla Aung) . 67 Introduction . 67 The Coming of British Rule, 67.- Introduction of English Law, 68.- The Court System Under British Rule, 69.- Imposition of"Direct Rule", 70. Codes versus Custom . 71 Indian Codes for the Burmese, 71.- Criminal Law and Procedure, 75.- Civil Law and Procedure, 78. Judicial Legislation: Court versus Custom . 80 Saving of Personal Laws, 80. - Ignorance Concerning the Nature of Burmese Law, 81. - Private Interest and Social Welfare, 84. - 'Justice, Equity and Good Conseience', 86. Conclusion . 87 CHAPTER VII. SOME MAIN FEATURES OF MODERNIZATION OF ANCIENT FAMILY LAW IN THAILAND ( Adul Wichiencharoen and Luang Chamroon Netisastra) . 89 The Ancient Law . 89 Polygamy, 91. -Conjugal Power of the Husband, 91. -Argument for Modernization, 92. The Modern Law 98 Marriage, 98.- Status of the Spouses and Matrimonial Property, 101.­ Divorce, 103. Muslim Law. 105 Conclusion 105 TABLE OF CONTENTS xiii CHAPTER VIII. ISLAM AND CUSTOMARY LAW IN THE MALAYSIAN LEGAL
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