Indigenous Peoples and Customary Law in Sabah, Malaysia Jannie Lasimbang 38 Indigenous Affairs 1-2/10
1. Background Developments in the indigenous legal system 1 in Sabah in 2010, in particular with regard to the native courts, have brought many interested parties to the fore. 2 These developments are milestones in relation to indigenous peoples’ right to participate in matters that affect them and their future. A number of events have been organised, including discussions through the government’s national Key Result Areas laboratory on native courts, the Native Court Judiciary Convention, the admission of lawyers as advocates to the Native Court of Appeal, and the Seminar by the Malaysian National Human Rights Commission (SU- HAKAM) on the Indigenous Legal System in Sabah. News items covering various opinions have also added further attention and significance to this issue. SUHAKAM has, moreover, organised a number of visits and dialogues with native courts and studied the related complaints it has received over the years. It is planning to hold a high-level Forum with the objective of firming up opinions and soliciting relevant questions and comments that can help achieve a good understanding of such issues. 2. Key Issues For the indigenous peoples of Sabah, the indigenous legal system revolves around the adat, which encompasses customary laws, concepts, principles and practices, and the customary institution that implements and regulates the adat. In short, it can be called an holistic indigenous system of governance. The adat includes both written and unwritten customs, rules and norms that govern every indigenous person and their community. Although the adat of indigenous peoples is recognised in a number of provisions in different laws, such as the Federal Constitution, Native Court Ordinance and Sabah Land Ordinance, there is no single law in Sabah that safeguards Sabah’s indigenous peoples’ right to determine how the adat and customary laws should be promoted and protected. As such, the indigenous communities’ pursuit of the promotion of their distinct ways of life and social traditions is not well supported by either the federal or state governments. Some of the key issues that have surfaced with regard to customary laws are discussed below. (left) Dusun woman from Sabah, Malaysia – Photo: Christian Erni Forum on Indigenous legal system in Sabah – Photo: Suhakam 2.1 Revitalising the Adat and the Role of the Ketua Kampung and Native Court The native courts of Sabah and Sarawak in east Malaysia are among the few indigenous courts in the world that are recognised by the state. However, in the current discourse related to the native court, the role of the Ketua Kampung (village head) has not received much attention in terms of strengthening its position to act as guardian or enforcer of the adat. The concept of justice for indigenous peoples is premised on the need for every member of the community to know what is right and what is wrong, and therefore desist from committing wrong. As such, from a very young age, every member of an indigenous community is taught to know the adat and be a person who is ki-adat (in Kadazan, this means knowledgeable of the adat). It is when someone violates the adat that this person, together with the aggrieved person, is brought before the Ketua Kampung for mediation and resolution of such wrongdoing. If either party is not satisfied with the decision of the Ketua Kampung, the case can be brought before the native court. The traditional role of the Ketua Kampung is therefore to ensure that community members are taught to respect both the adat and other community members. The role of the Ketua Kampung needs to be clarified so that all parties focus firmly on enforcing and promoting the adat and political appointments are stopped. Selection criteria must be based, among other things, on the understanding and experience of elders – both women and men - to enforce the adat in their respective communities, as they are knowledgeable, wise and respectable in the eyes of the community. They could be promoted to the position of judges in the native courts, also on the basis of merit and criteria. The native court judges will act as advisors to the Ketua Kampung in terms of how the adat can be maintained, on the basis of cases they have to deal with in the native court, but they will not interfere with each others’ roles. The interaction of both the na- 39 Indigenous Affairs 1-2/10 39
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