Native Courts System

The earliest legal example of the exercise of sovereign powers is the Code of Law which Brooke promulgated on February 2, 1842. It reads as follows:⁴

          "James Brooke, Esquire, governor (rajah) of the country of Sarawak, makes known to all men in the following regulations:-
          1. That murder, robbery, and other heinous crimes, will be punished according to the ondong-ondong (i.e., the written law of Borneo; and no person committing such offences will escape if, after fair inquiry, he be proved guilty.
          2. In order to ensure the good of the country, all men, whether Malays, Chinese, or Dayaks, are permitted to trade or labour according to their pleasure and to enjoy their gains.


           3. All roads will be open, that the inhabitants at large may seek profit both by sea and land; and all boats coming from other parts are free to enter the river and depart, without let or hindrance.

           4. Trade, in all its branches, will be free with the exception of antimony-ore, which the Governor holds in his own hands, but which no person is forced to work, and which will be paid for at a proper price when obtained. The people are encouraged to trade and labour, and to enjoy the profits which are to be made by fair and honest dealing.

           5. It is ordered, that no person going amongst the Dayaks shall disturb them, or gain their goods under false pretences. It must be clearly explained to the different Dayak tribes, that the revenue will be collected by the three Datus bearing the seal of the Governor, and (except this yearly demand from the government) they are to give nothing to any other person; nor are they obliged to sell their goods except they please, and at their own prices.


           6. The Governor will shortly inquire into the revenue, and fix it at a proper rate; so that everyone may know certainly how much he has to contribute yearly to support the government.


           7. It will be necessary, likewise, to settle the weights, measures, and money current in the country, and to introduce doits, that the poor may purchase food cheaply.


           8. The Governor issues these commands, and will enforce obedience to them; and whilst he gives all protection and assistance to the persons who act rightly, he will not fail to punish those who seek to disturb the public peace, or commit crimes; and he warns all such persons to seek their safety, and find some other country where they may be permitted to break the laws of God and man."

In the following years of his reign, Brooke was largely concerned with making good the threat contained in s.8 of his laws. The use of force was constantly necessary to maintain his position but at the same time he did not neglect the gentler art of judicial administration. The following extract, taken verbatim from his Journal⁵ and again emphasizing the personal nature of sovereignty, illustrates the sort of court proceeding feasible at the time:

"I have before mentioned the difficulty of administering justice; and experience teaches me that the risk to myself, on this score, is more to be apprehended than on any other. The forms I have not much alluded to; and the following is as nearly as possible the Malay custom:- The Rajah's brothers and myself sit at one end of the long room in my house; at the sides are the Patingis and Tumangong, and other respectable people; in the centre the parties concerned; and, behind them, anybody who wishes to be present. We hear both parties; question if necessary; and decide-and from this decision there is no appeal. One only condition I insist upon; and that is, that in any intricate case, or whenever I dread confederacy, I do not allow the witnesses to hear each other. The laws of evidence in a free country, prohibit any leading questions being put to witnesses; here, for the purposes of justice, it is indispensable; for the people, being ruled by fear, and apprehensive of consequences often falter before the face of the accused, and their testimony has to be wrung from them. To decide also according to the technicalities of construction would be here ridiculous, and defeat the ends of justice. The people are rude and uncivilised; their oppressors crafty and bold, who have no hesitation about lying, and bringing others to lie for them. Oaths are a farce to them. The aggrieved are timid, vacillating, and simple, and cannot readily procure even necessary evidence; for their witnesses are afraid to speak. Under these circumstances, I look at the leading features of the case, the probability, the characters, the position of the parties, and determine according to my judgment. It is not, indeed, a very difficult task; for the disputes are generally glaring, and, when bolstered up, usually fail in their most important links; and at a touch of cross-questioning, the witnesses, resolved to tell the same story, fall into opposite ones. In one case, about a slave, three witnesses had resolved on the sex; but, questioned separately as to size and age, all disagreed. They were not prepared. One represented her a woman grown and marriagable; another, as high as my walking-stick; the third, a little child .... ".

The events in the years following this description were not such as to make possible the establishment of a settled legal system. For the legal historian the necessary data are almost entirely lacking and Brooke's Journals and Letters provide only fragmentary comments, merely reiterating the passages just cited. It is not until twenty years later, in the comparative stability of the 1860’s, that the history of a legal system in Sarawak can properly be said to begin.

The informality and personal nature of the Rajah's rule were reflected in the laws (called "Orders") promulgated in H.H. The Rajah's Order Books, the source of the present laws of Sarawak, which began in 1863. Although no clear legal policy was ever formulated, it is apparent from the Orders that the Rajahs were concerned to establish a distinct system of law for each racial and religious group. The personal nature and informality of government is again reflected in the Orders, especially in respect of the Native communities.

In the early and more informal period (1863-c.1920), if one may so designate the legal history, inter-racial relations were clearly of the first importance. The Court's Order (1870), which remained in force until 1922, provided in s. III that in cases of murder where a Native was involved "one half, or at least one third, of the jury will be formed of natives." The same section also went on to provide for a separation of Supreme Court jurisdiction by distinguishing a "Native Probate and Divorce section within the Supreme Court's jurisdiction." While the Order was drafted informally, s.IV "trust[ed] .... the Officers in Charge to have the spirit of the Regulations carried out and to adhere to the letter as near as circumstances will permit". Under s. VIII dealing with debts, English law is directed to be applied in cases where a Native and a European were involved; this is the earliest example of a recourse to English law in matters affecting Natives.

The next Order of note is the Marriage Order of 1st May, 1871. It provided rules for the marriage of persons of different religion or of no religion. Validity was dependent upon registration by the Resident; the issue of such marriages were declared legitimate (s.6). The custody of children was a matter of continuing concern and an early Order of 1st March, 1878, provided for compulsory registration of adoption. This requirement was not, however, enforced in the case of children adopted by Natives in accordance with custom.⁶ The offspring of liaisons between Chinese men and Native women were directed to remain in the custody of the maternal parent: claims by a Chinese father for custody would, only be entertained if a relationship of marriage, had been entered into in terms of the Order of 1^st May, 1871, providing for registered marriage.⁷ The custody Order was amended in 1915⁸ providing that when a child reached the age of discretion he or she might apply to the Resident of a Division for permission to adopt the nationality and faith of their Chinese father.

The marriage regulations in respect of Natives in this period were a constant source of difficulty. The Order of 26th September, 1892, attempted to regulate the marriage of Native Christian converts by providing for registration before the religious ceremony. Marriages under this Order could only be dissolved, on grounds of adultery or ill treatment, by the Supreme Court.⁹ Re-marriage was dependent upon such a decree. The Order was cancelled by an Order dated 10th November, 1892 but renewed, with some alteration, by the Order of 4th February, 1898 which added a second paragraph on Muslim marriage. In addition to these Orders, the later Order XI of 1906 provided for intermarriage between Kayans and Davaks. The Order attempted to regulate, by way of registration the marriage of a Dayak male to a Kayan female.

In addition to the difficulty caused by the case of the Native Christian, the case of pagan converts to Islam also necessitated regulation. This was provided for in Order XXIV of 1915 which applied to all pagan peoples in Sarawak. Where such had become Muslims, the Order required them to protect the interests of native heirs by executing an assignment of property or drawing a deed of trust to be administered by the court. This Order was in addition to the general rule stated in the Order of 11th June, 1891 s.6, that succession be determined by custom except where the deceased was a Muslim when Muslim law¹⁰ applied.

In addition to the private law matters just outlined, the early Orders dealt with three matters of public interest involving Natives. First, the question of slavery was regulated by a series of Orders, the first of which was executed on 24th June, 1868, and followed by Orders of 14 November, 1882, and 24 August, 1883. The early Order set the tone for the treatment of slavery by stating in its introduction that "the following regulations are not to be considered at present [i.e., 1868] strictly as law, but may simply afford assistance . . . . . " "Such reforms as are requisite ... had better be quietly and gradually brought about." The Order then went on to define the status of slave and to provide regulations for their treatment; the matters covered included sale, valuation, transmission and ill-treatment, debts, the status of children, marriage and foreign slave debtors. The later Orders of 1882 and 1883 merely elaborated the contents of the first Order. The institution was eventually brought to an end by Order No. S-2 of 1928 as amended by Order No. S-3 of 1930, later cap. 79 of the revised laws of Sarawak, 1948. The latter was repealed in 1958 by s.6 of Ordinance No. 12 of that year, thus bringing to an end the slavery laws in Sarawak.

The second public law matter was revenue. In the Order of 1876 revenue was assessed on Dayaks of named areas to be paid in stated quantities of rice. Later revenue Orders¹¹ made provision for payment in rice, sago and cash, and extended the tax system to cover most of Sarawak. Occasionally, certain groups were relieved of tax, ¹² including those who worked for the government. Tax was eventually commuted to a standard customary payment by Order No. N-4 of 1939. The matter is now regulated by the Native Taxes Ordinance and the Native Tax Rules made under s.3 of the principal ordinance.¹³

Finally, the native Main (sung rituals of various sorts) required special permission and a series of Orders laid down rules for when and how long a Main could be held. Special permission was necessary if His Highness was to be in residence.

It can be seen from this outline that the laws affecting the Native communities of Sarawak were few in number, limited in scope and probably only partially effective. The real administration of Native law was carried on in the Residents’ Offices throughout the state and the law applied was the local customary law (adat). In other words, Native law implementation was an administrative rather than a strictly judicial matter.^13a Under the Courts Orders from 1870¹⁴ onwards, the term "Native Court" referred to a Muslim court rather than to the "Natives" in the sense used in other enactments. This remained true for the Courts Order of 1922 as subsequently amended and also for the Courts Order of 1993.¹⁵ Under the latter, Native laws were dealt with in the Magistrates’ and Residents’ Courts¹⁶ with a right of appeal to the Supreme Court.¹⁷ Thus it is that, while the odd Native case appears in the Supreme Court Reports, the substantive body of Native Case law is to be found in the Residents’ Court Books from each division.¹⁸ Even here, the reports are generally brief; the job of the Resident was (and still is) to administer native disputes attempting in all cases to reach an amicable settlement. It is the emphasis upon a personal administration which really provides the key to understanding Native law of Sarawak.

The increasing complexity of life, including Native affairs, was reflected in an increasing rigidity of Native legal administration. Although the personal touch remained as a legacy from the first two Rajahs, a greater formality in government machinery became inevitable. In addition, the source of law applicable in the courts in Sarawak was placed upon a more formal basis in 1928 with the enactment of the Law of Sarawak Order¹⁹ which provided that the law of England, insofar as it was not modified by Orders of H.H. The Rajah, and so far as it was applicable having regard to native customs, was to be the law of Sarawak.

In the administration of Native law, this formality was embodied in the Native Administration Order of 1940.²⁰ The Order provided for the setting-up of “Native Authorities” under the control of the Officer-in-Charge of the District. The function of the authority was to interpret the government fiat to the local people, to keep public order²¹ and to assist the Officer-in-Charge. The Authority, who was normally the Headman, had powers of arrest.²² The Order was later repealed (see below).

The same year also saw the passing of the Native Courts Order²³ which constituted a series of Native Courts and defined their powers.²⁴ The classes of Native Court were (a) the District Court constituted by a Magistrate of the Second Class, a Native Officer and two assessors; (b) the Court of a Native Officer or Chief constituted by those officials and (c) a Headman's Court consisting of a Headman and two assessors.²⁵ Jurisdiction consisted of power to adjudicate breaches of native law and customs and the first two classes of court could impose both fine and imprisonment whilst the latter could impose a fine only. Rights of appeal went from the most junior to the most senior of the Native Courts and from thence to the court of a Magistrate of the First Class and eventually to the Supreme Court. The fees payable in respect of proceedings under the Order were low, in some cases no fee at all, as befitted their limited jurisdiction.

The formal proceedings imposed by these two Orders was paralleled in the constitutional sphere by the promulgation of the Sarawak Constitution Ordinance²⁶ as amended by the Sarawak Letters Patent of 1946. This not only meant the end of the Rajah's direct rule but introduced Orders (made within the sphere of the new constitutional arrangements) under which the determination of Native law principles became a judicial rather than an administrative matter. Precedent and judicial interpretation of statute rather than administrative practice was now the final determinant of Native law within the state-wide legal system. As if to emphasise this change in attitude, the Native Administration Ordinance was repealed by the Local Authority Ordinance of 1948.²⁷ In 1949 a new Application of Laws Ordinance²⁸ was also promulgated importing the common law, doctrines of equity and statutes of general application, the extent of which, however, is limited by local circumstance and native custom. Thus for example, the Guardianship of Infants Ordinance,³⁰ while introducing principles drawn from English statute, contains special provisions as to native infants. These take the form of allowing the court to invoke the aid of Native assessors.³¹ The definition of "Native" had already been decided as “a race declared to be indigenous to Sarawak “ in the Constitution Ordinance of 1946,³² the first time that this was thought necessary.

In 1955 the formal structure of Native law administration reached its definitive form with the promulgation of the Native Courts Ordinance³³ (and accompanying regulations³⁴) and the Native Customary Laws Ordinance.³⁵ The former is a substantial enlargement of the earlier Native Courts legislation; its most important feature is the creation of a Native Court of Appeal³⁶ presided over by a judge.³⁷ At the same time, the Native Customary Laws Ordinance not only made provision for the keeping of records but gave power to the Governor-in-Council to amend any native system o f personal law.³⁹ Section 5 of the Ordinance, in dealing with the methods by which change under section 3 may be carried out, refers to “authorized versions” Native law.

The last provision raises a very important question of principle affecting Native law in Sarawak.⁴⁰ The increasing formalism of Native law adjudication has made it necessary to settle the form and content of Native law. The judicial process proceeds by way of the creation of general principle, derived from precedent and applied in the specific instance. This was not generally characteristic of past administrative decisions under the Residents, nor is it so at present. The judicial system is formulated in such a way as to make Native law a (distinct) part of an English-derived legal system. Such was not the position under the first two Rajahs where a localized and highly fact-specific administration was the norm. This is still characteristic of the lower levels of the Native Courts as at present constituted, but at the level of the Native Appeal Court the common law legal system demands something else, viz., a body of precedent or an ascertainable body of principle. The need manifested itself in the late 1940’s and early 1950’s with the formalization of the Native law system.⁴¹ The result was the production of codes or fines lists for various groups within Sarawak,⁴² and the incorporation of some of these lists as subsidiary legislation under the authority of the Native Customary Laws Ordinance.⁴³

The trend is, therefore, towards the codification of Native law. There is no doubt that the speed of change in modern times leaves little room for the gradual development of Native law principles by way of precedent. To take only one example: The Land Code⁴⁴ classifies land into three classes as follows: (a) Mixed Zone Land which may be held by any person without restriction; (b) Native Area Land, to be held by Natives only; and (c) Interior Area Land over which, subject to permission, native customary rights may be established in specific areas. This legislation has been criticized by those who see it as being in opposition to Native principles of tenure,⁴⁵ but however true this might be,⁴⁶ the fact remains that land is a state resource which must be utilized for the benefit of the whole population. There is evidence that at the moment the restrictive system of title to land under the Land Code is being evaded⁴⁷ and, as I have pointed out elsewhere,⁴⁸ restrictive classification are incompatible with the full development of a cash economy. The Land Code envisages a static situation but agricultural, economic and social development are all dynamic processes.

This brings us back to the question of the codification of Native law, a far cry indeed from the Orders of the first Rajah. Codification must of course be approached with a good deal of caution and, in the Sarawak case, at least three issues must be kept firmly in view. First, given the great diversity of localized practice in the state and the equally pressing need for some uniformity, an over-rigid style of drafting must be avoided. This can best be done by leaving considerable discretion to the higher Native courts and the Native Appeal Court, coupled with a requirement on all such courts to keep full records.⁴⁹ Given these two conditions some standardized practice could be worked out in a comparatively short space of time. Second, the rather more difficult, the problem of translating concepts from the Native world into a legislative vernacular must be squarely faced. It is not easy to translate such concepts⁵⁰ and one must utilize technical data from such social sciences as anthropology, and so on. Finally, in drafting the provisions of any code, the facts of modern life must be kept in the forefront. The code/s must reflect the changing circumstances of Native life in Sarawak. If it does not it will be ineffective and thus contribute nothing to Native welfare while at the same time bringing the law into disrepute.

The first Rajah concerned himself both with Native welfare and with a cheap and efficient administration of law; he and his successors overcame the problems of their time. There is no reason to suppose that we, with the benefit of hindsight, cannot deal with the problems confronting Native law today, just as successfully.

	M.B. HOOKER
	University of Kent, Canterbury.