Developed By: iNFOTYKE
On codification of customary laws
By Fabian Lyngdoh
In spite of many academic disputes, majority of social leaders and scholars admit the reality of the concept of tribes and tribals, and the need for special protection of tribal people in the modern day political and economic system. The Constituent Assembly of India by incorporating the Sixth Schedule in the Constitution made it clear that there is actual need to protect the indigenous tribals who are still backward and marginalized. Hence the Sixth Schedule itself and the constitution of Autonomous District Councils codifies the existence of traditional institutions and indigenous leadership systems among the tribals.
It is stated that the tribals of Meghalaya still retain their customary laws and practices and traditional institutions. However, in a modern society supposed to be administered by old age customs, it would leave ample scope for arbitrary application of customs by vested interests as no two cases would be dealt with in the spirit of law because the judgment is left to the subjective opinion of the traditional judge. Therefore some express the view that customs should be codified into Acts so that the operation of general legal practice can be applied to them. When viewed from another perspective, the codification of customs into Acts, defeats the very nature and meaning of preservation of customs. The meaning and implication of custom is supposed to be interpreted by the elders of the community only and its traditional authority. When a custom is codified it becomes a law which is open to the interpretations of lawyers and the courts. In vulgar language, a codified custom becomes a gold mine for lawyers rather than justice for the people. Through codification, any lawyer or judge would become an authority more legitimate to interpret that custom than the traditional authorities.
Man has always attempted to seek the truth and tries to fathom the mystery surrounding him. The way to the truth is different from one society to another, from one type of philosophy to another. The Khasis have their own process in finding the truth surrounding them. For the Khasis, first of all at the social level, there are ki ain (laws and rules) in all aspects of social life. Ki ain, by themselves are the laws and rules agreed among men and are socially sanctioned. Ki ain have their source in ka hok (right); and ka hok has its source in ka sot (religion, divinely sanctioned laws and rules). Ka sot is also generally called ki riti-ki dustur. Ka sot has its source in ka nia (reason or argument of truth). Ka nia has its source in Ka Hok (Divine Rule, Divine Justice). Divine Justice or Divine Rule is here written in capital letter ‘H’, ka Hok. While for socially instituted rights it is here written in small letter ‘h’, ka hok. Ka Hok is a Divine power that surrounds the world or the human environment and it emanates from God Almighty. It is God’s power that constantly deals with the affairs of man. From ka Hok emerges ka nia (reason or argument of truth). The Khasis believe that whatever is reasonable according to human intellect is also in line with Divine rule and Divine justice.
It is for this reason that God Himself has created man, therefore God would listen to the words of man, and it is on that ground that the Khasis instituted ka sot, a concept which is also equitable to religion, to guide man’s relationships with God and the world and also with all beings. Ka sot may be revealed by God himself or ia pan (set up by man but having been appealed to God for approval). From ka sot comes ka hok. Whoever has a place in ka sot for any aspect of social life would have the right in that aspect of social life, but whoever has no place in ka sot has no right. On the basis of this right man makes ka ain (law). Because of ka sot some individuals have the right to be u Syiem or lyngdoh. Only a man who has an established kur (clan) has the right to take part in social affairs because he has ka sot which is called ka sad ka sunon, a concept which needs further explanation. Ka ain is what man made by himself and for himself, which can be created or changed by agreement among men only, and does not require to be informed to, or approved by Divine assent. Ka sot, whenever it is made by man always requires Divine assent. And, Ka tipbriew-ka tipblei (moral conscience or moral law) is the joint operation of ka nia (reason or argument of truth) with ka Hok (Divine Justice). When put in order the Khasi process of knowledge and experience goes like this:-
Blei–>Hok–>Nia–>Sot–>hok–>Ain [God –> Divine Justice–> Reason–> Divinely approved law–> Right–> Law].
For the Khasis, it is from the belief in the existence of God that starts the whole process of knowledge of truth. The idealist process of knowledge would run as follows:-
Here we see that the concept of ka Hok and ka sot are not in the picture. The rationalists or scientific approach would be as follows:-
Nia–>Ain–>hok [Reason–> Law–> Right].
Here according to the rationalist approach, everything must end at the level of reason, and man formulates his law only on what is reasonable, and can claim his right only as granted by the law. Modern democracy is increasingly leaning to the approach of: – Reason–>Law–>Right. But according to the Khasi philosophy, man can formulate his law only on what is rightful. What is rightful depends on the Divinely approved law called ka sot which is instituted in line with ka nia (reason) under the care of ka Hok (Divine Justice) so that everything would be in line with God. The connecting link between these stages of knowledge and experience is ka nia (reason, or argument of truth). It is from the eyes of reason or the argument of truth that man looks to God and his Divine Justice so that he can conceive of what is rightful and lawful. If Khasi customary laws and social practices should ever be codified, the above process of the truth should not be lost sight of.
Another problem that may arise with regard to codification of custom is in the definition of religious and philosophical concepts and precepts into legal and scientific context. For example, how would the Khasi concept of ‘ka hok-ka sot’, or ‘ka nia-ka jutang’, be defined in a legal instrument? An eminent Khasi author translated the concept, ‘Hei nga bat ho la ka nia’, into ‘I stand by reason”. This is conceptually wrong. It’s proper translation into English would be, “I stand by my own principle as expressed in my argument of truth”. My argument of truth would depend on situations I am in. As u Syiem I stand by ka sot of ka Sad-ka Sunon personified in ka Syiem-sad. As u Lyngdoh I stand on ka sot of ka Lyngdoh-sad. Or my argument of truth may also depend on a certain covenant I am connected with. This is expressed in the concept, ‘ka nia-ka jutang’ meaning, I constitute my argument of truth according to the provisions of the covenant I have entered into. So the concept ka nia-ka jutang does not mean rational argument, but an argument according to a covenant. And ‘ka hok-ka sot’ does not merely mean righteousness, but a right, a prerogative or a righteous behaviour according to ka sot that a person is connected with. Likewise the concepts of ‘iatai-nia’, ‘iasaid-nia’, ‘ka bishar’, ‘ka hok ka juban-lak’ etc. cannot be ordinarily translated into modern legal concepts. To conclude, codification of traditional institutions and customs should be limited to the constitutional recognition of their existence but leave the detail of their functioning to the wise interpretation of indigenous authorities and not to confine to the legal interpretation of lawyers. On the other hand, any custom that can no longer be justly applied should be discarded and any traditional authority that cannot provide justice according to custom should be abolished rather than codified.
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