Sabah’s Native Family Law is set for significant change if draft proposals currently with the State Attorney-General’s Chambers see the light of day.
“It has not been easy to come up with the draft due to the many ethnic groups in Sabah. If all goes well, it should be enacted in the not too distant future,” said deputy state attorney-general Josie D Bosi in remarks released to the local media.
Sceptics, however, are urging a return to the drawing board, for various reasons including the perceived incorporation of elements from Syariah family law in defiance of actual adat (customary practices).
There is no argument against the need for change. District chiefs and native chiefs have perennially complained about the need for better administration of native laws and customs in Sabah.
Former state attorney-general Roderic Fernandez, now a legal consultant to the state government, is on record over the lacunae in the Native Courts Enactment 1992 and the subsidiary rules made in 1995.
The state government has conceded the need to bring the Sabah Native Courts in from the cold, and for attention to the many grey areas.
For example, all marriages solemnised according to native custom must be first referred to the Registrar of Marriages, a practice that has provoked outrage.
“What authority does the Registrar of Marriages have? Even under the Law Reform Act, it has no jurisdiction over native customary marriages solemnised in Sabah,” said a cultural activist experienced in native laws.
“This is clearly an example of the federal-appointed Registrar of Marriages overstepping the boundaries of its jurisdiction. The federal constitution has given the Native Court authority over native marriages.”
Critics have pointed out that the Registrar of Marriages does not interfere in marriages conducted under Syariah laws.
However, those supporting the government stance claimed that illegal immigrants tend to seek refuge under native marriages.
Bosi explains the dilemma as stemming from the absence of a native law on the need to register native marriages to ensure their validity.
“The native marriage law should be comprehensive including important clauses on marital matters such as basic necessities, ritual, registration, marriage certificate format, penalty and others,” she added.
“Natives who marry according to their customs are encouraged to register under the Registration of Marriage Ordinance 1952. Until there is a clear definition on natives and native law, it may be even better for natives from the same state to get married under the Act 164 (Renewed Law Act (Marriage and Divorce) 1976, as was being practised in Sarawak.”
Not surprisingly, there are calls for Section 4 in Act 164 to be amended by the inclusion of a clause – ‘Nothing in this Act shall affect the validity of any marriage solemnised according to native customary law prior to or after the appointed date’ – so that native marriages will not be doubted.
Already, marriages between Muslims and non-Muslims which have been registered under the Native Court have been ruled as not legal.
Polygamy is said to be rampant among natives despite amendments in 1995 to the Native Law. Under Rule 20(1) of the Native Court Rules 1995, bigamy or polygamy is prohibited; an offender faces a RM1,000 fine or a jail term of up to six months or both.
Section 7 of the Law Reform (Marriage & Divorce) Act 1976 also makes polygamy an offence that is punishable with a seven-year jail term.
“The varied and conflicting views and inability of the native chiefs to interpret the law leaves it in a very unsatisfactory condition,” said lawyer Priscilla Ruth Marcus.
“Some men continue to put on a subtle combative front or resistance to prohibitions against bigamy and polygamy, resulting in clandestine marriages and co-habitation. This results in quarrels in families and competing claims for the man’s estate.”
One failure is that the National Policy on Women does not address the subject of bigamy and polygamy in native marriages unlike those conducted under Syariah law.
Now, the thinking is whether the draft proposals on the Native Family Law should revisit the subject in a manner that respects Adat as well.
Before 1995, native marriages were potentially polygamous. Among non-Christians, polygamy was allowed provided the consent of the first wife was obtained and a sogit (fine) was paid to her.
She could also broker the berian (dowry). In the old days, a man could marry again if the first wife was barren or in poor health, or if she did not bear any male heirs and also if he needed more help on the farm.
Joe Fernandez | May 25. Mkini