Divers Paths to Justice - English - Forest Peoples Programme

Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast AsiaNorth Borneo Chartered Company and British colonial officers from 1880to 1950. In the first section I showed that while colonial officers might havebeen committed on paper to honouring native land rights and customsthrough a system of legal pluralism, in practice the separate laws for nativepeoples was used as a means to control the local population and ultimatelyseverely limited the rights of native peoples to govern their traditional landsaccording to their customs. The prime beneficiaries of the dual legal systemwere European commercial agricultural ventures, which were fostered bythe government as their primary source of revenue.In the next section I argued that even after independence from colonial rule,the violation of native peoples land rights has continued into the presentday. At times, the remnants of native customary law that are woven into theSabah land code, as in the case of communal land title, have been pervertedand used in a manner that is not in the best interest of native peoples.What then is the future of legal pluralism in Sabah as a mechanism fornative peoples to gain justice and secure rights to land? Despite the negativepicture described above, three recent events suggest that there is thepossibility that native peoples can reclaim control over native customarylaw and reshape the current form of legal pluralism to their advantage. Thefirst of these events began in mid-2010 when the Chief Judge of Sabah andSarawak, Tan Sri Richard Molanjum, announced that Sabah’s Native Courtsystem should be given equal standing with other legal institutions in Sabah,such as the Syarait Court. 54 Pressing for full recognition of the NativeCourt, Tan Sri Richard Molanjum called for full and equal treatment of thethree different legal traditions in Sabah: the Civil Court, the Syarait Courtand the Native Court.The second event that has bearing on native land rights consists in the twojudgments by the Sabah High Court that ruled in favour of native landrights. The first case was the resolution of the Kundasang Public Inquirydiscussed above. In this case Justice Datuk Ian Chin ruled in favour of thenative farmers saying “there is no need for a native to seek permission from54 Fernandez 2010a103