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Filling the knowledge gaps on traditional customary laws and indigenous peoples in Asia

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Among the most distinctive features of indigenous peoples are their unique ‘cultural patterns, social institutions and legal systems’. These features vary in different parts of the world according to different social and political systems. The system of government of the states within which indigenous peoples live, whether at the local or the national level, varies enormously in Asia, from highly centralized unitary systems to decentralized federal systems.

Although indigenous peoples throughout the world live within state systems with formalized constitutional and legal systems, many of their social and cultural practices continue to be regulated by traditional law (referred to as customary law). Of course, this is only where their institutions, laws and practices have not been totally eroded, or assimilated beyond recognition. Indigenous peoples’ customary laws and institutions continue to suffer from de-recognition and policy neglect due to discriminatory or assimilationist state policies. Like indigenous peoples in other parts of the world, indigenous peoples in Asia have been subject to social, political and economic marginalization, especially through conquest and colonization. In only a few cases have Asian indigenous peoples been able to retain a substantive level of political and legal autonomy. Most indigenous peoples’ systems and practices have been eroded to an extent. In between are those cases where their customary laws and legal systems are partially recognized by formal state law.

The challenge in each case is different; in some, the highest priority is to reverse the policy neglect and strengthen indigenous peoples’ legal systems and customary law institutions. Such struggles often form part of an autonomy or self-determination movement. In other cases, the greatest challenge is to cope with the changing social dynamics within indigenous societies, whether or not these have happened through choice. Such exchanges are inevitable, and many would say desirable, since ours is a world where peoples and nations are dependent on each other for a variety of reasons.

Information about indigenous peoples’ lifestyles and social systems is generally scarce due to their social, political and economic marginalization, and their relatively ‘remote’ locations. Moreover, formal and informal writings on such matters are sometimes restricted to indigenous or local languages. In addition, because indigenous peoples’ customary laws tend to be in oral form, little information about these laws is available in an easily retrievable format, even among the people or community concerned. MRG’s new report, Traditional Customary Laws and Indigenous Peoples in Asia, hopes to fill a small part of the huge gap in our collective knowledge of indigenous peoples’ customary laws in Asia.

This report does not intend to cover all the major sub-regions of Asia, or all the possible aspects of the practice of customary law. The report concentrates on family or personal laws, and land and natural resource law. Examples will be included from regions and countries the author has visited: the Cordilleras, Philippines; Hokkaido, Japan; India; and Sabah and Sarawak, Malaysia. These are in addition to examples and India from the author’s native region of the Chittagong Hill Tracts (CHTs) in Bangladesh, where he is an advocate, a social activist and traditional chief, which entails judicial and administrative responsibilities in CHTs semi-autonomous governmental system.

The above is an extract from MRG’s new report ‘Traditional Customary Laws and Indigenous Peoples in Asia‘.

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