Divers Paths to Justice - English - Forest Peoples Programme

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Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiasometimes be based on reputation or hearsay”. 27One of the main contentions raised against the enforcement of customaryrights in Sarawak is that custom or adat covers only social etiquette ornorms of correct social behaviour. Customs, it is argued, become‘customary laws’ only when they are codified. 28 Central to this argument isthe meaning given to the phrase “custom and usage having the force oflaw”, where “law” is taken to be only written law. It is also contended thatthese customs were “not part of the Rajah’s legislation or codified” andalthough “practised, are not part of native customary law”. 29 The rationalegiven is that [written] laws and codified customs “provided a degree ofcertainty and stability in the implementation of the State’s developmentgoals.” 30However, it can also be argued that this narrow view appears to putcertainty above the essence and justice of the law. This concept of law asman-made laws passed by legislature monopolises the Malaysian concept oflaw 31 and is undoubtedly influenced by John Austin’s positivist theory thatlaw is the command of the sovereign. Austin, a leading jurist, declared thata custom becomes law when it is recognised by a judge of the State. Untilthe legislator or the judge impresses it with the character of law, the customis nothing more than positive morality. According to Austin, “if it wasrecognised as law, it must have been law already”. By Austin’s definition,there is no such thing as a customary law which is distinct from State law.This conception of law ignores the reality of native existence and survivalbased on the land and the customary laws established and derived from thecommunity.27 Cross on Evidence (Third Edition)28 See Fong ‘Native Customary Laws and Native Rights Over Land in Sarawak’ inSUHAKAM (ed), Penan in Ulu Belaga: Right to Land and Socio-EconomicDevelopment (2007) 175, 177 for an explanation of this argument.29 ibid:3630 Myth, Facts and Reality of EU FLEGT- VPA: Sarawak’s Perspective, SarawakTimber Association, 2009, p. 3431 Hugh Hickling, Introduction to Malaysian Law, Pelanduk Publications (2001)49
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast AsiaBe that as it may, in Nor anak Nyawai v Borneo Pulp Plantations, Ian ChinJ recognised this and referred to adat as a “practice by the habit of a peopleand not by the dictates of the written law”. In Madeli bin Salleh vSuperintendent of Lands and Surveys, Miri Division & Anor, 32 the FederalCourt reaffirmed the recognition of customary laws as pre-existing laws,whose existence does not depend on specific legislation or find its source instatutes or executive direction to ‘create’ them.Admittedly, in consonance with constitutional recognition, some nativecustoms in Sarawak have been codified. Beginning with the Adat IbanOrder of 1993 and the Adat Bidayuh Order, other codes have been draftedbased on the structure reflected in the Iban model. 33 Concepts of Ibancustomary laws 34 were identified and translated into terminologies that werenot only acceptable to Iban throughout Sarawak, but also suitable foradministrative and legislative purposes. Some provisions of the TusunTunggu (an earlier written ‘code’) were rewritten and recast and variationsamong the riverine groups excluded while the core or the commonlypractised adat were included in the Adat Iban Order. These codifiedcustoms are however not exhaustive. A savings clause provides that anaction or suit in respect of any breaches of other customs recognised by thecommunity but not expressly provided for in the code, may be instituted byany person in any Native Court having original jurisdiction over suchmatters and that the court may impose such penalty or award as it considersappropriate in the circumstances. 3532 [2005] 5 MLJ 30533 The Adat Iban comprises 8 chapters, dealing with customs relating to longhousecommunity living, farming, customs on marriage and family, distribution ofproperty, deaths and burial. It also includes a saving provision.34 At a meeting with the leaders of the community held in Kapit in March 1981, itwas agreed that the Iban customary laws throughout Sarawak would be codifiedbased on the existing Tusun Tunggu Iban (Sea Dayak) Third Division 1952 andDayak Adat Law Second Division 1963, which were compiled and edited by AJNRichards.35 In the Adat Iban Order this is included as section 198 under the heading‘miscellaneous’.50
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