The recent statement by Sepanggar MP Eric Majimbun on the proposed Native Family Enactment should be taken seriously. In the Daily Express on December 16th he had said that the Native Family Enactment which is to be tabled soon has Islamic elements in it. This is certainly worrying. The Native Family Enactment deals mainly with non-Muslim native affairs as Muslims already have the Syariah Family Law Enactment.
The non-Muslim native assemblymen in the state assembly must object to any enactment on native laws that involve Islamic elements. Please be reminded that native law and customs predate the arrival of Islam in Sabah. And since family cases like divorce and marriage for Muslims are handled by Syariah laws, there is no reason for the Native Family Enactment to contain Islamic influence. Perhaps it is also high time that the Director of the Native Affairs Council (MHEAN) be appointed from among the non-Muslim natives.
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i am in entire agreement with this view. once a customary law is enacted into a legislation it is no longer a native law but statutory law. it has changed its character. customary law evolves with the tribe or community that practises it. it is passed down from one generation to another. hence it cannot be enacted into statutory law. it is just like the english common law promulgated by the english courts and to a large degree by our malaysian courts. once a particular common law is enacted into statute it is no longer called a common law as in the case of our contracts act 1950 which in fact incorporated the english common law on contract. of course common law has been varied by statute for various reasons such as to mitigate its harshness etc. once that is done such variation cannot be described as part of the common law. it is merely a statutory law.
so for those who are thinking of legislating the native family law do some rethinking. consider the constitutional aspect as well.
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