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Opinion

Published on: Tuesday, July 13, 2010

Kudos for upgrade goes to Malanjum
By: Tan Sri Herman Luping

The call by the Chief Judge of Sabah and Sarawak, Tan Sri Richard Malanjun for the setting up a Native Court Judicial Department in Sabah, if acted upon and becomes a reality, will be a fitting tribute to the immediate ancestors of both Datuk Seri Panglima Musa Haji Aman, the Chief Minister and YAA Tan Sri Richard Malanjun.

To Datuk Seri Musa, it would be a signal tribute to two of his ancestors - Datuk Gunsanad and Datuk Sodomon - both native chiefs in their time in Keningau and for YAA Tan Sri Richard, to his grandfather, OKK Lojungah of Penampang. All these native leaders of yesteryears had contributed so much in the care and attention of the community's Adat system and the role of the native court in their time.

Indeed, in the case of the late Datuk OKK Sodomon, he too played an important role in the promotion of the Kadazan Harvest Festival when he arranged to celebrate the Kaamatan festival as part of the Annual Tamu Besar in Keningau. This first celebration of the harvest festival was the precursor of today's Tadau Kaamatan celebration.

Besides, the setting up of the judicial department is a logical conclusion that must ensue to administer and look after the laws, tradition and culture - known as "adat" - of the native people of Sabah, and more particularly to the Kadazandusun and Murut communities.

As I said, it is most fitting that both these descendants of native chiefs would be recorded in history as responsible for the setting up a long awaited judicial department of Sabah's native court.

As I understand it from Tan Sri Richard, the department he envisages would form a judiciary in the Chief Minister's department, very much like the Syriah Court for the Muslim community.

Tan Sri Richard does not see anything wrong in having three judicial systems in the State - the Civil Court under the Judiciary Department, the Syriah Court under the Chief Minister and the native judicial court department also under the Chief Minister department.

I can see a lot of advantages in the setting up of the Native Court judicial Department.

To begin with, the department would be responsible to suggest names of native magistrates or judges for the Head of State to appoint.

The appointed native court judges would be paid from a special allocation of funds voted for in the State Assembly, and that they should be accountable to the Head of State. This is to avoid any political interference in the future.

The judicial court department would be free from any political affiliation.

The present system of appointing native chiefs can continue but should eventually be absorbed under the new system so that all native chiefs would be under the Native Court Judicial Department in the Chief Minister's department.

In the past, the appointment of native chiefs, district chiefs etc was very much political in nature.

They were appointed for their allegiance to the government party in power and as they also served under an appointed head or president, who is himself a political appointment, the native chiefs under this system is liable to be "sacked" if he or she does not toe the governing party's line.

The recent sacking of the 8 community leaders in Kudat is a case in point, I believe.

The setting up of the Native Court Judicial Department then is an effort to streamline the position of native chiefs as judges in the native court.

I can foresee the office of YAA Tan Sri Richard Malanjun eventually producing a "handbook" or "guidebook" of the Department of the Native Court in Sabah.

I can also see the eventual appearance of a monthly magazine publication containing reports on cases heard in the native court.

And further, as a prelude to all these, a special school can also be set up for candidates who want to learn more about native laws - adat - and how to administer justice as native court judges.

As it stands at the moment, the native chiefs and district chiefs who sit as judges in the native court have only some rudimentary knowledge of the native adat and for the most part, they depend heavily on the "bulletin" produced and compiled by a former colonial civil servant, G.C Woolley.

The latter had produced seven Native Affairs Bulletin - for (1) the Timogun (Murut) (2) Tuaran Adat for the Lotud Kadazandusun, (3) Murut Adat,(4) Dusun Adat,(5) Kwijau Adat (Keningau) and (6) Dusun customs in Putatan district (Tangaah Kadazandusun of Penampang).

All were reprinted in 1953 and had formed the basis of native laws or the Adat used by native courts to interpret and dispense justice for the native communities.

Adat was and still is an all-important law, mores and customary laws governing every aspect of KDS and Murut way of life. Adat was indeed a way of life of the KD and Murut communities.

As the KD and Murut communities are nearly all farmers - paddi farmers, the bulk of their Adat are agricultural in nature and ceremonies conducted by the village priests or priestess were agricultural ceremonies.

Adat was the exclusive control of the first institution, the Orang Tua institution.

This person was chosen for his deep knowledge of Adat and when he sat to hear cases on breaches of Adat, he was the judge, the jury and the prosecutor all in one. He must therefore be an exceptional person who must be partial in his judgment on breaches of Adat.

He was some time helped by the second institution, the village elders, and many times, if the spirit world was affected by the breach on Adat, the Bobohizan was also called upon to appease the spirits to avoid pestilence on crops or outbreak of sickness on the villagers.

Very rarely the fourth institution, the Huguan Siou was called upon when an Adat was breached.

The function of the Huguan Siou was different.

(See chapters 6 and 7 - Religion and Adat and Native Court in "The Kadazandusun" book by this writer).

In 1992, the Native Courts Ordinance was instituted by the State government to provide for a new and amended version of the 1953 Native Courts Ordinance.

This is the Native Courts Enactment No.3, of 1992.

It provides for the constitution, procedure, jurisdiction and power of the Native Courts.

Three other Enactments were introduced in 1992 and these were:

a. Native Courts Enactment 1992, Native Courts (Practice and Procedure) Rules 1995.

b. Native Courts Enactment 1992, Native Courts (Native Customary Laws) Rules 1995 and

c. Native Courts Enactment 1992, Native Courts (Registration of Native Court of Appeal Advocates) Rules 1995.

The second (b) Enactment - which contains the native customary laws (Adat) is the most important and it is heavily used by native courts.

This enactment contains all the sets of laws (adat) and the attendant penalties or fines for each breach of customary laws.

The present Native High Court of Appeal is an ad hoc body, created when there is a need for it.

A judge of the high court sits together with a district chief and a native chief.

The recent amendment to the native court rules allows for an advocate of the high court of 'Sabah and Sarawak to appear in the Native High Court of Appeal. In the past, there was a lack of advocates who can appear in the Native High Court of Appeal.

Twenty four advocates were admitted to appear in the Native High Court of Appeal by the Chief Judge of Sabah and Sarawak recently.

I attended the ceremony and was also admitted by the Chief Judge along with three other senior lawyers - retired but still have practicing certificates - namely, Tan Sri Thomas Jayasuria, Datuk Stephen Foo, and Datuk Haji Mhd Noor Mansoor.

History was created in the annals of the native court in Sabah that morning when Tan Sri Richard Malanjun, the Chief Judge of Sabah and Sarawak, admitted the 24 advocates of the High Court of Sabah and Sarawak to become advocates in the Native High Court of Appeal.

The ceremony was conducted with dignity and decorum.

Among those who were admitted included a father and daughter, Datuk Douglas Primus Sikayun and his daughter Shireen Leanda Sikayun, the President of the Sabah Law Association, Datuk John Sikayun, the Permanent Secretary of the Ministry of Local Government, Datuk Abidin Maddingkir, Encik Juprin Wong Adamal of the State Attorney General chamber, Datuk Maijol Mahap, Enck Martin Idang, Puan Ruth Marcus, Encik Ahmad Abdul Rahman, Encik Daminius Aludah, Jeko Kihit, Celetina Stuel Galid, Clive Jublee, Marzuki Haji Sapawi, Peter Marajin, Irene Vitus, Fulton Mark Sitiwan, Saban Sawayan, Suzalye Donal Abdullah, and Mhd Shukur Abd Mumin

Datuk John Sikayun spoke on behalf of the Sabah Law Association.

He thanked the Chief Judge of Sabah and Sarawak for approving the applications of the advocates to practice in the Native High Court of Appeal and also for the history-making in the annals of the native court in Sabah.

Tan Sri Richard Malanjun on his part said that the admission of advocates to the native Court of Appeal would give more justice to the natives in terms of their rights under native law.

He described the event as a quantum leap for the general impression that the Native court is but a "kampong court". He said it would give the court a new dignified image akin to any other judicial system.

The Chief Judge also expressed the hope that the lawyers would work hard to help the poor and be fair to the natives by not charging them too high.

He also reiterated his plan proposal to establish a Native Court Judicial Deparment and have it recognized as part of the judicial system in the State.

Judicial robes to be worn by the advocates of the Native High Court of Appeal were also introduced during the ceremony.

The applications by the advocates were presented to YAA Tan Sri Richard Malanjun, who is also the president of the Native High Court of Appeal.

He sat with Kota Kinabalu District Chief, OKK William Mojimbun and Native Chief Ellen Masalin of Kudat to hear the applications.

There was no objection from the State Attorney Chamber, represented by State counsel, Dayangku Faridah Hatun Pg Bagun nor from the Sabah Law Association represented by its president, Datuk John Sikayun.