A CALL has been made from within the legal fraternity for Sabah’s native courts to be elevated to achieve parity with civil and Syariah courts, starting with a simple amendment to a state legislation.
To achieve this, the state needs to revise or abolish a clause in the Native Courts Enactment 1992 which is restricting its own jurisprudential scope.
Lawyer Datuk Roger Chin explained that Section 9 of the enactment acts as a barrier restricting the jurisdiction of native courts in areas already covered by the civil and Syariah Courts.
Section 9 states that the native courts shall have no jurisdiction in respect of any cause or matter within the jurisdiction of the Syariah courts or of the Civil courts.
“While both native customary law and Syariah law are recognised by the constitution and enjoy equal standing, the reality is starkly different,” the immediate past president of the Sabah Law Society said in comments made to The Vibes.
“Native customary law and Syariah law enjoy equal recognition under the constitution.
“However, Section 9 creates a de facto disparity, undermining this principle and potentially violating individuals’ rights to choose their preferred legal system.
“Adopting concurrent jurisdictions would empower individuals to seek legal recourse in either justice system, allowing them to navigate issues like marriages and inheritance through a lens that aligns with cultural and customary practices,” Chin said.
Sabah is eyeing to raise the stature of the native courts to achieve parity with both the civil and Syariah courts. Chief Minister Datuk Seri Hajiji Noor had planned to do it this year.
He had announced the establishment of the Sabah Native Court Judicial Department and a special committee under the Sabah Native Affairs Council to formulate, amend and revise related enactments and ordinances.
According to Chin, the native courts have a crucial role in upholding traditions and legal systems of Sabah’s diverse indigenous communities, but Section 9 has created certain loopholes.
For instance, in marriage, when a Muslim man entices a wife from a non-Muslim Bumiputera family, the native courts have no power to intervene should the woman convert to Islam.
Thus the case automatically goes under the purview of Syariah law.
Spirit of Malaysia Agreement
Chin said that if Section 9 is revised or abolished it would not only address the limitations of the native courts but also come closer to fulfilling the terms of the Malaysia Agreement 1963.
“The agreement guaranteed Sabah self-determination and recognition of its unique cultural and legal heritage,” he reasoned.
“By ensuring equal footing and effective operation of the native courts, Sabah's diverse communities can have their customary laws and traditions truly recognised and protected.”
He added that elevation of Sabah's native courts also necessitates dismantling constitutional barriers, implementing concurrent jurisdiction, and investing in resource and capacity building.
“Only by taking these steps can we achieve genuine legal equality and honour the spirit of MA63, ensuring justice and recognition for all Sabahans, regardless of their religious affiliation or customary background,” he said.
Issue of Muslim natives
Meanwhile, Moyog assemblyman Datuk Darell Leiking concurred with Chin.
He stated that repealing Section 9 of the Native Courts Enactment can dismantle the barrier, elevating the status of the branch court to equal that of the Syariah and Civil courts.
Leiking stated that there are also the questions of Muslim natives.
While they can come under the ambit of native courts, matters on assets and matrimony may only come under the jurisdiction of Syariah courts.
He added that this is among the issues that has to be tackled in Sabah.
In the same light, the Warisan deputy president said that the definition of natives of Sabah must also be looked into and refined to fit the current realities.
“The Native Interpretation Ordinance must also be reviewed and amended to clearly define who are natives of Sabah.
Native laws of Sabah must also be codified between all districts so that laws are clear too,” he said. – The Vibes, February 21, 2024
