| Content | PREFACE HAVING COMPILED a collection entitled "Cases on Native Customary Law in Sabah" for the Government of Sabah to cater for the needs of the Native Chiefs and administrative officers, I have been encouraged by many friends, particularly the Honourable the Lord President, Tun Mohamed Suffian, to do a similar one for Sarawak. Opportunity is taken to include in this collection an Outline History of the Administration of Native Law in Sarawak since there is a dearth of authority on this subject. The cases in this collection have been selected from traceable records kept in the Law Courts in Sarawak, reports in the Sarawak, North Borneo and Brunei Supreme Court and the Malayan Law Journal. Some cases were from the High Court in Borneo. In T.R. Manggai v. Government of Sarawak and Anor (1970) 2 M.L.J. 41, the Federal Court dealt with certain procedural aspects of the native courts. This case is also an authority for the proposition that where a statute creates a specific tribunal for the enforcement of any particular right, then a party seeking to enforce that right must resort to that tribunal and no other. I have also included the case of H.H. the Raiah v. Dunggaw and Unjar (1934) S.C.R. 37 to show that headhunting ceased to be regarded as a custom since the time of the First Rajah but treated as an offence sui generis against the common law. It also shows the inherent danger that an Administrative Officer had to meet in those days in hearing a serious criminal case as he would be subject to pressure from his superior in interfering with the proper administration of justice. Social conditions and economic development would imperceptibly cause changes to the customary laws. But, on the whole, customary laws alter very little despite constitutional changes.
Custom is a mysterious and uncertain thing. Those of us who frequently have to deal with custom when administering the law feel that we could do with a little more certainty and less mystery. Custom is certainly not fossilised. It is static. Custom must grow and change as communities progress and develop in the light of rapid social changes and economic development in the country. Otherwise, it will die. Ceremonies and taboos form part of the customs of many communities. Where they no longer serve any useful purpose or command the respect of the community with which they are associated then they are rightly discarded. The fact that they are gone increases rather than diminishes the value of the hardcore of the custom which remains. Native customary laws like the common law are also built on certain sets of broad and generally accepted principles. But, there are, however, important variations of customs from district to district and even within a district itself. The variations are more pronounced in respect of certain aspects of customary law, e.g., adoption, marriage and succession.
In this collection it is only right that most of the cases are concerned with Iban customs since Iban is the largest native group in Sarawak. Similarly, most cases in Sabah deal with Dusun customs since Dusun forms the largest group in Sabah.
Sarawak is more fortunate than Sabah in that quite a number of cases relating to customary laws are reported in the Sarawak, North Borneo and Brunei Supreme Court Reports and a few in the Malayan Law Journal since Malaysia. Also, in Sarawak legislations on Native Customary Laws are more comprehensive, particularly subsidiary legislations, e.g., The Undang-Undang Mahkamah Melayu Sarawak, The Tusun Tunggu and The Orang Ulu Customary Code of Fines. These subsidiary legislations made under the Native Customary Laws Ordinance (Cap. 51) can be found in the Laws of Sarawak, 1958, Volume VII (Cap. 51). For convenience and ease of reference, I have consigned the relevant legislations and other related papers to various appendices.
It is hoped this collection of cases will be of interest and assistance not only to the Headmen, Penghulus, Pemanchas, Temenggongs and the Administrative Officers in dealing with matters relating to customary laws, but also to students on the subject. My sincere thanks go to Encik M.B. Hooker of the University of Kent at Canterbury for kindly writing an Outline History of the Administration of Native Law in Sarawak. I should also like to thank my secretary, Mrs. Valerie Goh for typing the manuscript and sorting out all sorts of problems in connection with the collection. | | TAN SRI DATUK LEE HUN HOE, (P.M.N., S.P.D.K., P.G.D.K., P.N.B.S., A.D.K.) |
KUCHING, |