Native Law Centre seen necessary: CJ

DAILY EXPRESS NEWS
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6 August 2008

Kota Kinabalu: Native Courts must undergo a transformation to remain relevant to natives in Sabah, said Chief Judge for Sabah and Sarawak, Tan Sri Richard Malanjum (pic). Making the call when delivering his keynote address in conjunction with the three-day District Chiefs and Native Chiefs conference beginning Tuesday at Wisma Muis, here, he said it was time for Native Courts to re-examine their whole system.

Among his suggestions was for the setting up of a Native Law Centre or Institute to provide a platform for the study of native laws and customs and finding ways of preserving them. He noted that, interestingly, there have been moves to encourage the revival of native laws of indigenous people in other countries such as Australia, New Zealand, the African states, Canada and even the United States.

If a Centre is set up in Sabah, it could look into the publication of more reference materials and guidelines for those involved in administering native laws and customs to ensure consistency in the decisions of Native Courts even from the same district. "Surely the perception of 'I know it from childhood É I feel in my heart whether a thing is right or wrong' should be addressed if natives' confidence in the Native Courts is to be sustained.

"For now may be such perception can be excused simply due to limited reference materials and guidelines for those involved in administering native laws and customs," he said, adding that so far there are only two publications, which reported the decisions of the Native Court of Appeal, in Sabah. He believed a Native Law Centre would be able to address the basic problems in coming up with such publications like manpower and funding.

Malanjum said a working committee should also be considered with the main task of examining the present state of native laws and customs and changes that need to be done. "It is suggested that regular training and updating should be made available to these personnel including study visits in other jurisdictions such as the Sarawak Native Courts," he said.

Malanjum said further short courses on basic court procedures and basic legal principles on fairness and natural justice should be made available to District Chiefs and Native Chiefs by the law faculties of local universities. On the composition of the Native Court of Appeal in any given proceedings, he suggested that in order to ensure greater assistance to the presiding Judge the two other members should come from the same district as the case pending before the court.

It is generally accepted that in Sabah the native laws and customs vary from one district to another but it would be quite unfair to the litigants if the District or Native Chief hearing the case came from another district, he said. "The inevitable consequence is their loss of confidence in the native justice system," he added.

MALANJUM suggested that the relevant State authorities in charge of managing the affairs of Native Courts work together with the study committee set up by the Faculty of Law of Universiti Institut Teknologi Mara (UiTM) to come up with a "handbook" for native laws and customs administrators. He said the State Government had taken some positive steps in the early 1990s with amendments like the Native Courts (Native Customary Laws) Rules 1995, which intended to codify the various native laws and customs into a set of rules.

However, he said there were also questions on whether steps had been taken to ensure the legislation is ready for and understood by all Ketuas Kampung, Native Chiefs, District Chiefs and District Officers involved in the administration of native laws and customs.

Also, whether these legislation are easily available and understood by the natives especially those in rural areas and whether the Native Courts (Native Customary Laws) Rules 1995 represents the uniform native laws and customs for all the native tribes in Sabah. "Maybe it is time the District Chiefs and Native Chiefs are assisted by legally trained Registrars who would be able to advise them on the intricacies of the provisions of the Enactment and the Rules," he said.

Malanjum added such move could reduce the incidence of advocates complaining before the Native Court of Appeal on the issue of breach of natural justice by the Native Courts when hearing cases. In this respect, he said training for District and Native Chiefs is essential and providing them with a simplified version of the Rules in the form of a handbook.

At the same time, he said it should be highlighted that one of the primary roles of the District Chiefs, Native Chiefs and Headmen is to act as mediators between the feuding parties so that disputes could be settled amicably and out of Native Court.

"Along with enhancing the performance of the Native Courts it is also important that the workings of the Native Courts are publicised especially among the natives," he said, adding the District and Native Chiefs could assist by ensuring that copies of the relevant legislations are easily available in their offices.

Maybe one reason why there seems to be a decline in the cases registered with the Native Courts is due to the absence or difficulty in getting reference materials by would-be litigants of Native Courts, he said, adding the Internet as a medium of communication must also not be ruled out. According to him, the conference theme "Transforming the Native Judiciary administration towards uplifting the image of the Native Court " was appropriate.

"The world has become a global village and the catchwords for survival and success is 'either adapt or perish'. I hope the time will never come when the theme of this conference is: Are native laws and customs relevant and necessary to natives of Sabah?," he said. The conference, he said, was critical as it provides the forum to determine the current position on native laws and customs including their usage and relevance to the present generation of natives.

"I would add that if this conference could be held yearly it could also be considered as the Native Law Advisory Council with the main function of giving advice to the authority that manages the affairs of the Native Courts. Such a body existed even during the rule of the Charted Company," he said. He said if transformation of the Native Courts is to be seriously considered then the reasons for the downward trend of cases referred to the Native Courts in Sabah must be found. "Whatever the reason or reasons there may be it is worthwhile to consider some of the views expressed if native laws and customs are to survive," he said.