9 Native Courts Sabah2007

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

LBA 1043 Malaysian Legal System II

Special Courts

Native Courts in Sabah

© Muhammad Nizam Awang @ Ali

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Discussion Points

• Definition of ‘native’ • Hierarchy of Courts and Members • Maximum Jurisdiction of Court • Court Power • Original Jurisdiction • Appellate Jurisdiction/ Power • Revisionary and Supervisory Jurisdiction/ Power • Court Decision/ Judgment • Legislation: Native Courts Ordinance (Sabah) 1992)

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Definition of ‘Native’ • Art.161A(6)(b) of FC: – a citizen – is the child or grandchild of a person of a race indigenous to Sabah, and – was born (whether on or after Malaysia Day or not) either in Sabah or to a father domiciled in Sabah at the time of the birth.

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Hierarchy of Native Courts/ Court Members Native Court of Appeal – s.5(1)/(2)

District Native Courts – s.4(1)/(2)

Native Courts – s.3(1)/ (2) 4

Maximum Court Jurisdiction • Native Courts (Criminal Jurisdiction) Act 1991 (Act 471) – Provides for the jurisdiction of Native Courts (Sabah and Sarawak) – 2 years’ imprisonment or RM5,000 fine or combination of both – s.2 – The Native Court has no jurisdiction if the offence is already provided under Penal Code - s.2 Proviso 5

What isCourt the Court Power? - s.10(1) Power •

For the offences against native law/ custom - s.10(1) (a) Impose fine or (b) Order imprisonment or (c) Or both (d) Inflict any punishment – not contrary to natural justice and humanity 6

Court Power (2) • Proviso of s.10: Fine/ imprisonment shall not exceed amount conferred by federal law – Imprisonment has no effect unless it is endorsed by a Magistrate – s.11 • The court may make any order – as may be just and equitable under native law/custom – s.10(2) 7

Court Power What is the Court Power?(3) - s.11 & 12 • Order to pay compensation (in cash or in kind) to the person injured or aggrieved - s.12 – Compensation shall be paid at certain time or by installment or otherwise – Imprisonment in default of penalty or compensation. Period of imprisonment will justify the justice - s. 13 –S.14(1) 8

Original Jurisdiction • s.6(1) (a) Breach of Native law/ custom (All parties are natives) (b) Breach of native law or custom, religious, matrimonial and sexual cases (if written sanction is obtained from DO (One party is a non-native) (c) Cases on native law or custom relating to: – Betrothal, marriage, divorce and judicial separation 9

Original Jurisdiction Jurisdiction of Court(2) (2) – Adoption, guardianship or custody of infants, maintenance of dependant and legitimacy – Gifts or succession testate or intestate – Any other cases

• No jurisdiction on matters under Syariah Court jurisdiction – s.9 10

Issue: What is the court jurisdiction? Original Jurisdiction Jurisdiction of Court (3) (3) - s.6(2) (FOR CIVIL CASES) For civil cases: Local jurisdiction refers to where- s.6(2) a) Cause of action arose b) Breach is alleged to have been committed c) Facts of proceedings

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Original Jurisdiction Jurisdiction of Court(4) (4) Scenario I: In matrimonial/sexual cases and parties are not of the same race- s. 6(3) The court will follow native law custom of the women’s race

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Original Jurisdiction (5) Scenario II: Cases relating to gift or succession testate or intestate Native law or custom of the grantor

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Original Jurisdiction (6) • Scenario III • Cases of adoption, guardianship or custody of infants, maintenance of dependants and legitimacy • Native law /custom of whom institute the proceedings 14

Appellate Jurisdiction s. 18(2) – basis of appeal: b) Matter of right – if the ground of appeal involves Q of native law or custom d) With DNC leave Q of fact only @ Q of fact + law @ mitigation of sentence

NCA s.18(1)

DNC s. 17(2) – basis of appeal: b) Matter of right – if the ground of appeal involves Q of native law or custom d) With DNC leave Q of fact only @ Q of fact + law @ mitigation of sentence

s.17(1)

NC

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Appellate Jurisdiction (2) •

Recalling Witness - s. 17(3) – – – –

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May recall witness Take further evidence itself Direct NC to take further evidence Summon any person to be assessor to advise it

Request of Written Report - S.19(1) – NCA may request NC/DNC written report before considering the appeal 16

Appellate Power • Appellate Power – s.23(1) (a) dismiss an appeal (b) set aside or vary an order (c) reduce @ increase sentence of imprisonment (d) order rehearing by the same @ different NC

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Revisionary & Supervisory Jurisdiction • S. 16(1) – Power of revision – DNC may revise decision of NC - If the proceedings are irregular, improper or unconscionable – The court may quash or vary the sentence or direct a rehearing (retrial)

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Revisionary & Supervisory Power • S.16 - call for and examine the record of proceeding in NC as to: (a) the correctness, legality or propriety of order passed by NC (b) the regularity of proceedings in NC

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Court Decision/ Judgment - By unanimous or majority decision – s.7, s.24 • Miscellaneous • Power to punish on contempt of court – s.25 20

Recap • • • • • • •

Definition of ‘native’ Hierarchy of Courts and Members Maximum Jurisdiction of Court Court Power Original Jurisdiction Appellate Jurisdiction/ Power Revisionary and Supervisory Jurisdiction/ Power • Court Decision/ Judgment 21

Next Lesson

Special Courts Native Court in Sarawak Legislation: Native Court Ordinance (Sarawak) 1992 22