Modern Monogamy had a chat with a colleague of mine at the university, that concerned personal relationships and he mentioned that it was not in our culture to be polygamous. I had to correct him on this because I do not know why but the idea that the Asian culture is monogamous is just silly.

All throughout our region, monogamy is a new development. Polygamy was a totally accepted concept in the various cultures throughout the region. In fact, this was also true in Malaysia up until recent history, particularly with the inception of the Law Reform (Marriage and Divorce) Act 1976.

Sections 5 and 6 of the Reform Act introduced monogamy into our community, which by religion and custom, had always practised polygamy. However, this act does not apply to Muslims, natives of Sabah and Sarawak, and Orang Asli. Muslims in Malaysia, are allowed to be polygamous – with up to four wives at a time.

I think that this myth stems from our local divide-and-conquer mentality, where the non-Muslims generally like to differentiate themselves from the local Muslims. One facet of differentiation would be the practice of monogamy. As a result of a single generation of monogamous families, we now think that it is our ‘culture’ to be monogamous, which in fact, it is not.

This is the danger of mixing customary laws in with common law.

I would like to correct this myth and state for a fact that – it is in the Asian culture in general – to be polygamous. This is true all throughout the Far-East to the Middle-East. However, the practice of polygamy was generally limited to those of means only, due to constraints.

Monogamy is a recent invention of man, not Asian culture as we like to think of it.

Customary Laws

Customary law is included in Article 160 of our Consti, and as such, has certain legal implications. In fact, in Sarawak and Sabah, there exists a native court system to enforce such laws. However, in the peninsular, such issues are usually settled in civil court, which has to decide on the existence, proof and validity of such customs.

Now, this troubles me for a number of reasons. Personally, I do not truly subscribe to any custom as I make things up as I go along. It’s hard for me to say that I follow Chinese custom because I generally don’t. I live a hybrid life, absorbing and following various customs and traditions as I go along.

Therefore, it’s rather troubling to me to find that there are certain customary issues that have the force of law in Malaysia and can be settled by the courts. It troubles me because I would not want to get dragged into court for customary disputes since it would be unfair for the courts to try to put me in a box.

This leads me to the larger issue of national integration. In order to feed the customary law system, we would need to continuously divide people along cultural lines. It is necessary to put people into a box in order to be able to enforce customary law e.g. we cannot force Malay customs onto a Chinese family, for instance.

Therefore, it is not something that helps promote national integration unless we choose to do away with all other traditions and customs in return for a single unified national custom, which sort of defeats the purpose of having customs in the first place. Therefore, this system seems to be self limiting and self defeating.

On the other hand, such a system would help the continuance of said customs because they would have to be adhered to. So, for those people who are steeped in traditions or who value such things, our legal system presents a boon to them.

Malaysian Courts man.

Malaysian Law is so complicated. I’m in the process of reading Wan Arfah’s introductory text on this subject and boy, is it convoluted.

For one, according to the book, we are not even clear on the issue of binding precedents in our Malaysian courts. The reason is because of various reorganisations of the court systems in Malaysia over the years.

As an example, the Court of Appeal was only created in 1994, and did not exist before that. While it sits below the Federal Court in the hierarchy, it is not clear on where it stands in history.

As I understand it, in the past, the highest position in our court hierarchy was held by the Privy Council in the UK. Under that was the Federal Court. We broke away form that system in 1985 and renamed the Federal Court to the Supreme Court, which was renamed to the Federal Court later.

However, we later inserted the Court of Appeal between the Federal Court and the High Courts. Now, this causes a conundrum.

While my mind can parse the fact that the Federal Court is the highest court of the land and that all its decisions are binding on the lower courts, what I cannot parse is whether this Federal Court is equivalent to the previous Privy Council or the previous Federal Court; and where the two superior courts stand in relation to the Supreme Court?

So, taken at an instantaneous point in time – i.e. now – things are very clear. However, in terms of binding precedent, which may go way back in time, things are less clear on whether the present Court of Appeals is bound by previous decisions made by the Supreme Court and previous Federal Court. Ditto with the present Federal Court.

Honestly, as an engineer, I think that most of this is a synchronisation issue. There was a loss of synchronisation when we went from two superior courts to one and back to two. What we need is to resynchronise with a new point of reference. However, due to the principles of stare decisis, we cannot just do away with the past.

Now, that’s not even taking into account the different laws in the land, as it stands. In almost every piece of legislation, we will have differences between most of Peninsular Malaysia, Sabah, and Sarawak. Often, there will also be differences between Penang, Malacca, and the rest of the Peninsular.