10 Native Courts Sarawak2007

ISLAMIC SCIENCE UNIVERSITY OF M A L A Y S I A Faculty of Syariah and Law

LBA 1043 Malaysian Legal System II

Special Court Native Court in Sarawak

© Muhammad Nizam Awang @ Ali

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Discussion Points

• Definition of ‘native’ • Courts Hierarchy/ Court Members • Overview of Courts Jurisdiction • Local Jurisdiction • Original Jurisdiction • Appellate Jurisdiction • Revisionary and Supervisory Jurisdiction • Supervisory Jurisdiction by High Court • Matters out of jurisdiction 2

Discussion Points

• Institution of Proceeding • Transfer of Proceeding • Detailed Hierarchy/ Jurisdiction of Court – Headman’s Court – Chief Court – Chief’s Superior Court – District Native Court – Resident’s Native Court – Native Court of Appeal • Legislation: Native Court Ordinance (Sarawak) 1992 3

Definition of ‘native’ • Art. 161A(6)(a) FC: • A citizen, and either belongs to one of the indigenous races to the State or is mixed blood delivering exclusively from those races • Art. 161A(7) - Definition of ‘races’ – Bukitans, Dusuns, Sea Dayaks, Kadayans, Kalabits, Kayans…. 4

Courts Hierarchy –s.3 & Court Members – s.4 Native Court of Appeal (NCA) Resident’s Native Court (RNC) District Native Court (DNC) Chief’s Superior Court (CSC) Chief’s Court (CC) Headman’s Court (HC) 5

Overview of Courts Jurisdiction Appellate Courts

Native Court of Appeal (NCA) Resident’s Native Court (RNC)

Matters involving land disputes

District Native Court (DNC) Chief’s Superior Court (CSC) First Instance Courts

Chief’s Court (CC)

Matters involving breach of native law/ custom

Headman’s Court (HC) 6

Local/ Local Territorial jurisdiction–s.7(1) Jurisdiction • S.7(1) – Causes/ matters arising within local jurisdiction – Causes/ matters arising outside local jurisdiction, but defendant is originally resident within such area – s.7(1) Proviso : Causes/matters relating to immovable property, the jurisdiction will depend on where the land is situated 7

Original Jurisdiction s.5(1): • Cases involving native law/custom (All parties are native) (d)

Cases involving native law/custom – cases relating to religious, matrimonial or sexual matter (One party is a native) 8

Original Jurisdiction (2) (c) cases out of Syariah Court jurisdiction where the value of subject matter does not exceed RM2000 and all parties are subject to the native system of personal law

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Original Jurisdiction (3) (d) criminal case of minor naturespecifically in the Adat Iban or any other customary law where the power to punish to fine not exceeding likewise under s.11 (e) any other matter empowered by written law

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Original Jurisdiction Problem 1 (3) • Scenario I • What if both courts (civil court and native court) have concurrent jurisdictions? • Look where the proceeding is commenced. Unless… (a) refer to commit the case for trial under CPC by some other court having jurisdiction (it means civil court) 11

Original Jurisdiction (4) b) in the case of Native Court, make an order under s. 5(6): the case is transferred for trial by some other courts (order of transfer the case from native Court to other courts)

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OriginalProblem Jurisdiction (5) 2 • Scenario II • Cases relating to matrimonial or sexual matter – of different sex & community – S.5(2) – Parties are bound by the law/custom of the community of which woman is the member –s. 2 – Woman who embraced Islam is bound by Islamic Family Law Ordinance 1991

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Appellate Jurisdiction Native Court of Appeal (NCA) (e)

s.13

Resident’s Native Court (RNC) (d) District Native Court (DNC) (c) Chief’s Superior Court (CSC) (b) Chief’s Court (CC) (a) Headman’s Court (HC) 14

Appellate Jurisdiction (2) Appellate Jurisdiction • S. 12(1)- An appeal shall lie: – a) right on any ground of appeal: if it involves question of native law/custom alone – b) on any ground of appeal: if it involves question of fact @ fact + law ( with the lave of the Resident)

• S.12(2) - If appeal from Resident’s Native Court , appeal lodged with the Resident and in other every case, appeal lodge with District Officer (within the district if NC) 15

Appellate Jurisdiction Appellate Jurisdiction (2)

Shall state grounds of appeal, unless: a) if there is no ground stated, Resident, DO or any body with appeal is lawfully lodged shall ascertain and record the grounds of appeal b) DO may authorise any other person to receive appeals and to exercise functions likewise the appeal from district subordinate courts to DNC. and transmit them to DO. 16

Appellate Jurisdiction (3) Appellate Jurisdiction • S.12(3)- Appeal shall be made in writing within 30 days from the date of the decision • No appeal shall lie to DNC- S.13(2) if the judgments: (a) related to the cases under s.5(1)/(2) (b) of Chief Superior Court is expressly declared to be final 17

Revisionary Jurisdiction Revisionary Jurisdiction? – s.16 • S.16 - Where there is error material in any cases @ involving miscarriage of justice – The Native Court may exercise the power of revision vested in the High Court in such manner as the justice of the case may require – s.16(1) – The Native Court of Appeal may refuse to exercise the power if the party has not exhausted his rights of appeal under the Ordinance –s.16(1) Proviso 18

Revisionary Jurisdiction (2) Revisionary Jurisdiction • Before exercising the power, the Judge may request the Resident or District Officer or the Sarawak Administrative Officer to give report about any order upon consideration of the appeal. – s.16(3) • Such officer must serve the report to all parties to the appeal. –s.16(3)

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Revisionary Jurisdiction (3) Revisionary Jurisdiction • No revision after the expiration of 12 months from the termination of such proceedings in the Native Court – s.16(2)

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Revisionary Jurisdiction (4) Revisionary Jurisdiction • Supervisory Jurisdiction applies when: – Any finding of the Native Court is illegal/ improper – Fair trial cannot be done in Native Court – Some question of unusual difficulty is likely to arise – Generally for expedience and justice • May order for trial de no novo (trial within trial) • When RNC exercise this power, NCA may need need to do so – s.16

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Supervisory Jurisdiction by High Court • By way of prerogative writs, if there is: – Lack of jurisdiction – A serious failure to perform justice – Breach of natural justice – Case: • Haji Laugan Tarki v. Mahkamah Anak Negeri Penampang • Ongkong anak Salleh v. David Panggau Sandin

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Matters Out of Court Jurisdiction s.28 - Except provided under s.5, 20 and 23 (a) Charge of offences that may carry death sentence (b) Offences under Penal Code (c) Matrimonial matters under LRA 1976 and the Registration of Marriages Ordinance 1952, unless… it is brideprice or adultery and founded only on native law/ custom 23

Matters Out Mattersof out of court jurisdiction Court Jurisdiction (2) d) Proceeding as to title registered under National Land Code e) Breach of native law – punishment is less severe than the maximum penalty than under the NCO

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Out of Court Jurisdiction (3) Matters out of court jurisdiction f) cases under Islamic Family Ordinance 1991 and Malay Custom of Sarawak [Any Muslim natives – s.1(2) except in cases under s.5(3) and s.20] g) any proceedings taken under any written law in the State 25

Institution of Proceeding Institution of Proceeding

• S.5(1) – if the Resident consider proceeding under s. 1(b)/(e) or s. 2 are likely: – to cause good relations between communities or – lead to breach of public order – Application more than one native system of personal law – Remedies may be prayed in other courts – Then, proceeding shall stay or shall not be commenced – Resident shall make a report to State AG who may confirm or set aside such order 26

Transfer of Proceeding Transfer of Proceeding (from civil court to native court) • If it is civil or criminal proceeding that require determination according to:-S.5(4) – a) native law /custom applicable to any native community – b) any other customary law by whose custom the Native Court is bound – And the proceeding was commenced in civil court (under SCA 1948), it shall be transferred to a Native Court – s. 5(4)

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Transfer of Proceeding Transfer of Proceeding (from civil court to native court) (2) • If the proceeding involves concurrent jurisdiction of the civil court (under SCA 1948) and native Court (other than cases under s.5(1)): the case shall be tried where the proceeding is commenced unless: – a) refer to commits the case for trial under CPC by some other court having jurisdiction (it means civil court) – b) in the case of Native Court, make an order under s. 5(6): the case is transferred for trial by some other courts (order of transfer the case from native Court to other courts) 28

DETAILED HIERARCHY/ JURISDICTION OF COURTS – HEADMAN’S COURT – CHIEF COURT – CHIEF’S SUPERIOR COURT – DISTRICT NATIVE COURT – RESIDENT’S NATIVE COURT – NATIVE COURT OF APPEAL 29

Transfer of Proceeding Transfer of Proceeding (from civil court to native court) (3) • If the proceeding in Native Court, the court may at any time transfer the case for hearing/ determination by ant other Native Court/ Magistrate’s Court of competent jurisdiction – Copy of the order and reason for transfer shall be transmitted to the Resident – If the transfer is illegal, improper or there is irregular proceeding, the Resident shall order proceeding to stay or shall not be commenced – s.5(6) – New court will start proceeding from the beginning (de novo proceeding)- s.5(7)

• Every case shall be heard in the lowest court of competent jurisdiction – s.5(8)

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HEADMAN’S COURT (HeC) 31

Original Jurisdiction –Headman’s HeCCourt • To hear all matters except cases under s.5(3) (land disputes) • Refer to s.5(1), s.5(2). • For details, refer to the topic of ‘General Overview of Native Court Jurisdiction’

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CHIEF COURT (CC) 33

Chief Court Original Jurisdiction - CC

• To hear cases involving land disputes and where all parties are subject to the same native law–s.5(3) • For details, refer to the topic of ‘General Overview of Native Court Jurisdiction’

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Appellate Jurisdiction - CC • Appeal from Headman’s Court – s.13(1)(a) • Basis of appeal: matter of rights where it involves question of native law and custom alone -s.12 • If it involves about question of fact only or fact and law or against imprisonment – need leave of the Resident - s.12 35

CHIEF’S SUPERIOR COURT (CSC) 36

Chief’s Superior Court Original Jurisdiction - CSC

• Cases of breach of native law heard by the Chief’s Superior Court and the lower courts (collectively referred as native courts) in their respective local jurisdiction- S.5(1), s..5(2) • For details, refer to the topic of ‘General Overview of Native Court Jurisdiction’

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Chief’s- Superior Appellate Jurisdiction CSCCourt

• Hear the appeal from Chief’s Court – s.13(1)(b) • It is the highest appellate court for: – Breach of custom and offences relating to matrimonial, religious and sexual cases – All civil matters where the values does not exceed RM2000 – Minor criminal offences. – Decision is final for all disputes except for cases under s.5(3) 38 – See s.5(1), s.5(2)

Chief’s Superior Court Superisory Jurisdiction CSC

• Supervise the decision made by Chief’s Court and the Headman’s Court – s.5(6)

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DISTRICT NATIVE COURT (DNC) 40

Native Court Original JurisdictionDistrict - DNC

• To hear matters under the codified custom – s.131 Adat Iban Order 1993 (bigamy/ offences of causing disruption by fire in a longhouse)

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Appellate JurisdictionDistrict - DNC Native Court • From CSC to DNC – s.13(1)(c). Read with s.s.13(2) • To hear appeal from lower courts in land dispute – s.5(3) • No appeals on:s.5(1)/(2) – Breach of native customs and matrimonial or sexual matters – Judgment of Chief’s Superior Court is expressly declared to be final and conclusive – For details, refer to the note: General Overview of Native Court Jurisdiction – 42 Appellate Jurisdiction

District-Native Court Supervisory Jurisdiction DNC

• Exercise the similar supervisory jurisdiction and powers as vested upon other appellate courts – s.16

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RESIDENT’S NATIVE COURT (RNC) 44

Resident’s Native Court Original Jurisdiction - RNC

• S. 20 – specific original jurisdiction – s.9 of the National Land Code, the question whether any non-native has become identified with a particular nativecommunity and subject to the native system of personal law of such community – whether a person who is subject to a particular personal system of personal law has become subject to different personal law – whether a person subject to the personal law of a particular community ceased to be so subject

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Resident’s Native Court Appellate Jurisdiction - RNC

• From DNC to RNC concerning lan disputes or native status – s.13(1)(d) • Appellate power is the same like NCA – s.14

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Revisionary & Supervisory Resident’s Native Court Jurisdiction - RNC • s.16 - For details, see notes on ‘General Overview of Native Court Jurisdiction: Supervisory and Revisionary Jurisdiction’

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NATIVE COURT OF APPEAL (NCA)

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Appellate Jurisdiction - NCA Native Court of Appeal (NCA) • From RNC, by way of petition for revision to the NCA • NCA has the same power and standing as the High Court.-s.14(2) • Read with: s.20(5)- determination of native status

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Appellate Power - NCA • See s.14 & s.15 • s.25

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Revisionary and Supervisory Native Court of Appeal Jurisdiction - NCA • Will not hear revise after expiration of 12 months from the termination of such proceeding in the Native Court – s.16(2) • No matter that has previously revised need to be revised again (for the second time) – s.16(2)

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Courts Power - s.11 DNC

Imprisonment - 2 years; Fine – RM5000

CSC

Imprisonment – 1 year; Fine – RM3000

CC

Imprisonment – 6 months; Fine – RM2000

HC

Fine - RM 300

Court may award full compensation (regardless of the fines prescribed above) authorised under Adat Iban or any other customary law whose custom is bound (refer to Adat Iban 1993 which is governed by the 52 Native Customs (Declaration) Ordinance 1996.

Courts Power - s.11 • Where there is modification of law under Native Customary Law Ordinance, power of the court extend to: – CSC – imprisonment: 2 years; RM5000 fine – CC - imprisonment: 1 year; fine RM3000 – HC – fine : RM 500

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Courts Power - s.11 • If the amount of pecuniary penalties imposed by native law are greater than NCO 1992, the court may approve such penalties. • But it shall not exceed the limit under the Native Court (Criminal Jurisdiction) Act 1991- s.11(4) • S. 2 of NC(CJ) Act 1991 – Item 13, List IIA, Ninth Schedule of FC – 2 years’ imprisonment and fine not exceeding RM5000

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Courts Power - s.11 Imprisonment in lieu of Default of Compensation/ Fines - s. 18(1) Fines Less than RM50 RM50 – RM100 RM100 – RM200 RM200 – 500 More than RM500

Imprisonment (month) 1 2 4 6 12 55

Recap • • • • • • • • •

Definition of ‘native’ Courts Hierarchy/ Court Members Overview of Courts Jurisdiction Local Jurisdiction Original Jurisdiction Appellate Jurisdiction Revisionary and Supervisory Jurisdiction Supervisory Jurisdiction by High Court Matters out of jurisdiction 56

Recap (2) • Institution of Proceeding • Transfer of Proceeding • Detailed Hierarchy/ Jurisdiction of Court – – – – – –

Headman’s Court Chief Court Chief’s Superior Court District Native Court Resident’s Native Court Native Court of Appeal 57

W o r d s o f w i s d o m

“Easy is right. Begin right and it will be easy Continue easy and it will be right The right way to go easy Is to forget the right way And forget that going is easy.” Chung Tzu 58

Next lesson

Legal Profession Legislation: Legal Profession Act 1976 59