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tive court and Ketua Kampung would ensure that the adat
remains vibrant, and that dispensation of justice is enhanced.
Because of the rapid erosion of the adat among
indigenous communities, the KK and communities need
to be fully involved in revitalising the adat. An efficient
native court therefore needs to be developed in line with
the concept of an indigenous justice system that promotes
community harmony and solidarity.
Native Courts of Sabah, Malaysia
Sabah is an interesting example of an autonomous
state where legal, procedural and judicial
autonomy is respected at the basic levels, and
the judicial authority at mid-levels is shared between
indigenous chiefs, and head people with
state judicial officers. In addition, the superior national
courts retain the highest authority for appeals
and revisions. All courts apply customary
law, unless codified laws supersede it. The Native
Courts Enactment of 1992 provides for a detailed
system of courts. At the lowest level is the Native
Court, which has jurisdiction over a territory below
a district. A native court consists of three
members, who are resident native chiefs or head
people and, exceptionally, a district chief, duly
empowered by the State Secretary. The native
courts act as courts of original jurisdiction and adjudicate
on personal law matters between “native”
and “native”, and between native and nonnative
(if the sanction of the District Officer is obtained).
They may also adjudicate on other matters
if expressly authorized by legislation. They
have powers to fine and imprison (on the endorsement
of a magistrate), and decisions are
taken unanimously or by majority.
Above the native courts are the district native
courts – one for each district within a state – which
consist of the district officer as the presiding member
and two other members, who are appointed
from among district chiefs or native chiefs. Above
the district native courts are the native courts of
appeal, which are presided over by a judge (from
the Ministry of Justice) and include two other
members – district or native chiefs (to be appointed
by the concerned minister). Litigants may not
be represented by advocates in the native courts
or district native courts.
– Excerpts from Traditional Customary Laws
and Indigenous Peoples of Asia by Raja Devasish
Roy, Minority Rights Group International –
2.2 Jurisdiction of the Native Court
Although legal pluralism does exist in Sabah, with the
native court being one of three parallel juridical systems,
the jurisdiction of the native courts has been gradually
eroded through various reasons. Native courts are perceived
as inferior, and some rulings of native or district
chiefs, when administering customary laws, are not respected
by the civil and syariah courts as having judicial
authority. The Chief Judge for Sabah and Sarawak, Richard
Malanjum, has called for genuine legal pluralism
whereby the native courts are not considered inferior
statutory tribunals subject to the supervisory jurisdiction
of the civil court. He is also of the view that the District
Native Court, being an appellate court, should be
staffed by district chiefs independent of the district’s administrative
officials, as is the current practice in Sabah.
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