Divers Paths to Justice - English - Forest Peoples Programme

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