Native Law

December 8, 2017 Law

Definition Generally a native system of personal law applies only to a native person or community forming a part of part any native race. According to judicial interpretation the term ‘native’ is identified to be a native by descent and way of life.

The Federal Constitution defines a native in Article 161 A, Clause (6&7) thus : (a) In relation to Sarawak, a person who is a citizen and either belongs to one of the races specified in clause (7) as indigenous to the State or is of mixed blood deriving exclusively from those races; and (b) In relation to Sabah, a person who is a citizen, is the child or grandchild of a person of a race indigenous to Sabah,and was born either (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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The races to be treated for the purpose of defining ‘natives’ in clause (6) as indeginious to SarawaAk are the Bukitans, Bisayahs, Dusuns, Sea Dayaks, Land Dayaks, Kadayans, Kalabits, Kayans, kenyahs (including Sabups and Sipengs), Kajangs (including Sekapans, Kejamans, Lahanans, Punans, Tanjongs and Kanowits), Lugats, Lisums, Malays, Melanos, Muruts, Penans, Sians,Tagals,Tabuns and Ukits.

The races listed are also the same ones define as indigenous under the Schedule to the Sarawak Interpretation Ordinance (Cap. 1) (Revised Laws of Sarawak 1958). In Sabah, section 3 of the Interpretation (Definition of Native ) Ordinance 1952 as amended in 1958 defines a native as : a) Any person both of whose parents are or were members of a people indigenous to colony; or (b) Any person ordinarily resident in the Colony and being and living as a members of a native community, one at least of whose parents or ancestors is or was a native with in the meaning of paragraph (a) hereof; or (c) Any person who is ordinarily resident in the Colony, is a member of the Suluk, Kagayan, Simonol, Sibutu, or Ubian people or of a people indigenous to the Colony of Sarawak or the state of Brunei, has lived as and been a member of a native community for a continuous period of three years preceding the date of his claim to be a native, has borne a good character throughout that period and whose stay in the Colony is not limited under any of the provisions of the Immigration Ordinance.

In Sarawak,section 20(1) of the Native Courts Ordinance 1992 empowers the Native Court to determine a person’s native status include the person’s conduct, mode of life, the testimony of responsible members of the community, the opinions of assessors and may issue a certificate to declare the person’s native status. Introduction of Native Law Definition of Native Law can be concluded as the source of law properly categorized as one of the customary law in East Malaysia. Beside native law, there were another law had been categorized that is Malay customary law and Chinese customary law. Native Law’s function is one to protect the right of an indigenous people from invasion by irresponsible people. Generally, this law only in force in Sabah and Sarawak because this state representative most of the indigenous people in Malaysia.

Pahang or other state still have an indigenous people but all of them protected under Federal Constitution. Thus, under Federal Constitution Article 161 A this community have been given special rights and privileges as indigenous people from East Malaysia. The Native Court in East Malaysia are established by state legislation, under the Sabah Native Court Enactment 1992 (No 3 of 1992)(SNCE 1992) and the Sarawak Native Courts Ordinance 1992 (No 9 of 1992)(SNCO 1992), respectively to hear and determine disputes among natives in relation to native customary laws and is to protect, safeguard the rights of indigenous people in the Sabah and Sarawak.

Besides that, The Native court also may entitled to determine the status of indigenous people in eastern Malaysia. By the way, actually Native Courts have limited jurisdiction in exercising its powers. Native Courts have no jurisdiction over civil or Syariah Courts. In addition, Native Courts also no jurisdiction over criminal offences same as Syariah Courts except in so far as conferred by federal law. A Native Courts is not a subordinate court over which the High Court may exercise supervisory power. Thus, it show that Native Courts is only act as a court that handle and progress relating matter about indigenous people and custom prevailing in the area of jurisdiction of the court in Sabah and Sarawak with a limited fine and punishment.

Basically Native Customary Laws in Sabah are found in administrative, legislation, judicial decision and unrecorded oral tradition from indigenous people. While in Native Customary Law in Sarawak are found mostly in administrative codes, statutes and judicial decision. Tribunal and Its Jurisdiction. SABAH Customary Law found in legislation in Sabah The substantive body of native customary laws in legislative form fall under the heading of : Native Rice Cultivation Native Estates Land under the Land Ordinance (case) * In Naung Felix Sitom vs PP A person having native customary tenure should be accorded the same status as one who is in possession of a title deed.

Customary Law found in Judicial Decision in Sabah The reported cases fall into two main categories : 1. family law matters — betrothal, marriage, divorce, and matrimonial property, adoption, and succession 2. Land and property –(case) * In Gulis bin Lundani v Malon bin Golunang A failure to invite the wife’s relative to a wedding was held to be a breach of custom and gave rise to demand for compensation. (other supporting case deal with land property such as Nunding v Itim, Lee 1973 ; divorce such Tiamsah v Kanali,Lee 1973 ; succession such Magdalena alias Timbai v Lohuntin, Lee 1973) SARAWAK Customary Law in Statutes in Sarawak Native Customary Land Tenure

The Torrent system of land is Sarawak only recognizes registered titles to land, but the Land Code 1958 has provisions recognizing native customary rights to land. Under the Land Code 1958, natives may hold land under the following : 1. Mixed Zone Land 2. Native Area Land 3. Interior Area Land Under section 6(1) and (2), the Minister may declare any area of state land to be a native Communal Reserve for the use of any native community, to be regulated by the customary law of that community. A communal reserve do not confer any individual right on native persons. (case) * In Keteng bin Haji Li v Tua Kampong Suhaili (1951) In Sarawak a person can be said to own land only if there is Land Office Title subsisting in respect of that land.

If there is no such title the land is crown land; the occupier is at best a mere license and he has no legal interest which he can either charge or transfer. * In Hamit Matusin v Superintendent of Lands & Survey (2001) The cut-off date of 1 January 1958 under section 5 means that native customary rights may only be created other than by way of transfer, gift, or occupation on or before 1 January 1958 and may lost through non-use or abandonmnent. * In Nyalong ak Bunyan v The Superintendent of Lands and Survey, 2nd Division,Simanggang (1967) Non use of the land for a period of twenty years was considered an abandonment. * In Injing Tuah & Anor An owner was deemed ohave abandoned his cultivated land by imigration toanother district. In Ara bt Aman & Ors v Superintendent of Lands & Mines (1975) Even a force moved such as the Japanese Occupation, caused a loss of native customary rights by reason of non-use of the land. * In Nor anak Nyawai & Ors v Borneo Pulp Plantations sdn. Bhd. & Superintendent of Lands & Survey & Anor (2001) Ian Chin J recognized the existence of Iban customary right to land, based on a ground survey and a map produced by the community with reference to various mountains, hills, ridges, and trees, according to the traditional way of demarcating boundaries . While agreeing that holders of such rights are license, he held that the rights could not be terminated at will.

Judgement was given in favour of Plaintifs. Customary Law in Judicial Decision Judicial Decision deal mainly with : Family law and Property Jurisdiction and choice of law Other miscellaneous matters. * In Sat ak Akum v Randong ak Charareng (1957) SCR 52 established that a Dayak can dispose of his property by will but not contrary to customary law. * In Sindon ak Jawa v Ting Sing Chew, Lee 1973 The property of a Chinese man, who married three wives by Dayak customs, had his property distributed according to dayak customs. He had apparently became an Iban. Thus, the courts continue to apply and to adapt native laws and custom to new situations. Rujukan NATIVE CUSTOMARY LAWS AND NATIVE RIGHTS OVER LAND IN SARAWAK Prepared by the State Attorney-General’s Chambers, Sarawak for Human Rights Commission in 2004. * A first look at The Malaysia Legal System by Wan Arfah Hamzah * An Introduction to Malysian Legal System by Ramy Bulan ; Wan Arfah Hamzah * http://komunitikini. com/sabah/kota-kinabalu/native-courts-of-sabah * Federal Constitution as at 20th june 2009 Tolong Cek BLEK!!! Bwat intriduction dlu.. bru bwat definition AQ POWN X SEDAQ APA AQ TULIS NTY ADJUST LAIN AQ CUMA TULIS BG AG PHAM KES TUE TENTANG APA!! AG TGOK BLEK BUKU SUSUN BGI MASOK BLEK LEKLOK NTY KLAW DA MSALAH!! KOL AKU!!!!


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