Divers Paths to Justice - English - Forest Peoples Programme

Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asialegal pluralism and the notion of “reinvigorating” native customary law. Iask: What is the best path for native peoples in contemporary Sabah to gainsecure land rights? Specifically, is there room for a vibrant native customarylaw to exist within the modern legal system in Sabah, Malaysia? Thissection builds on the previous one, demonstrating how the modern State stillpaternalistically articulates the need for the State to protect natives fromtheir own inexperience. This modern reworking of the colonial policies ofselectively supporting limited aspects of native land rights makes for a veryweak form of legal pluralism that does not secure justice for native peoples,but rather further marginalises them by taking control of native customarylaw. In this situation the State’s supposed interest in protecting nativetraditional lifestyles has less to do with equity for natives and everything todo with limiting native land rights.In the conclusion I do not argue for the end of legal pluralism and for thebeginning of legal integration, despite the damage legal pluralism appears tohave done to native peoples’ rights and autonomy. Instead I draw attentionto the need for the State to return control over defining and adjudicatingnative land rights to native peoples. In brief, it is time for a new form oflegal pluralism in Sabah.Treatment of native customary land rights under the rule of NorthBorneo Chartered CompanyThe North Borneo Chartered Company (hereafter the Company),established in 1881, had a dual mission in North Borneo. First, it wasconcerned with economic growth through the exploitation of the territory’snatural resources. Second, the Company was obligated to respect nativerights and customs. There were inherent conflicts between these twoconsiderations; the very property rights and native legal institutions thatCompany officials were charged to respect soon became an obstacle to theexpansion of commercial agriculture. As a result, the Company instituted asystem of legal pluralism in which some native customary laws weresupported while those that hampered the commercial exploitation of landwere replaced with western legal concepts.82