KOTA KINABALU, Nov 21 — Sometimes the subject of amusement and even mockery, Sabah’s native courts are underrated for its role in preserving traditional customs and serving the native community.

They existed even before the British occupation of North Borneo pre-Malaysia, and continues to be an important and valuable system for settling disputes among the native communities.

Recent news of a well-known senior civil servant "Datuk” who was fined three buffaloes and RM3,000 in the Native Court of Penampang for enticing the young wife of another retired "Datuk” has once again highlighted the functions and role of the Native Court of Sabah during modern times.

Three years ago, a lawyer who made derogatory remarks comparing the annual Harvest Festival Unduk Ngadau beauty pageant to a cattle show was fined seven buffaloes by the native court after a number of Kadazan Dusun Murut Rungus (KDMR) associations filed an action against him.

Internationally, the courts also hit headlines in 2015, when several tourists were summoned for desecrating the sacredness of Mount Kinabalu by posing naked at its summit.

Deep rooted laws that date back pre-Malaysia

While the existence of such courts date back centuries, it was formally institutionalised by the British North Borneo Company in 1913 and is now governed by the Native Courts Enactment 1992.

They hear and settle cases relating to personal law, disputes, enforcement of native customary law and offences of various natures, ranging from the minor (plucking fruit from someone else’s orchard) to the major (deciding on family inheritance).

The system revolves around the native adat or customary laws of living within a community and respecting the social fabric and natural ecosystem that is both sentient and spiritual.

If a native individual feels that he has been wronged, he or she can take the matter to the ketua kampung or village chief for mediation first and only if that fails will the dispute be brought before the native court.

The native court consisting of the district chief and two other members who are native chiefs or village chief can hear disputes, mediate and mete out punishments dependent on the severity of the offence amongst other factors.

"Traditionally, members of the native court were the elders of the native community, highly knowledgeable in native customs, trustworthy, respected and have a good standing in the community,” said Sabah Law Society’s native customary laws, customs and culture sub-committee chairman Datuk John Sikayun.

The native courts conventionally only has jurisdiction over the natives of Sabah, although non-natives can be summoned with the approval of the District Officer.

Native courts also cannot make judgment over offences that are concurrently provided under the Penal Code.

Native customary law encompasses various matters such as marriage, betrothal, breach of promise, divorce, adoption, guardianship, harassment, disputes, and defamation but is not confined to just the written law and can vary from village to village based on their own customs.

"For instances, some communities may have penalties when a younger sibling marries before an elder sibling (langkah), or when a widower marries or proposes before the bereavement period (mobpuod) is over”, said Sikayun who is also former Sabah Law Association president.

Restorative and community-minded justice

Sabah Law Society’s young advocates sub-committee Isaiah Majinbon explained that natives believe the ideal relationship between humans and the spiritual realm is one of harmony, referred to as osogit (cool) or balanced.

"However, human misdeeds such as intentionally harming the environment, damaging others’ property, threatening others, or committing serious offences like adultery or incest — including marriages between close blood relatives — disrupts this balance, creating imbalance or ahasu,” said Majinbon.

Natives believe ahasu is a bad omen to the community and can bring droughts, floods, epidemics and other catastrophes which is when appropriate rituals of blood sacrifices of animals are used to "cool” the "heat” of the imbalance.

Sometimes, compensation called sogit is paid in livestock of buffaloes, pigs and chicken — valuable commodities of equivalent value.

However, Sikayun said pigs are less common nowadays, to respect the sensitivities of the native Muslim community in the village.

Depending on the offence, the sogit may be offered and shared among the community during a communal gathering (karamaian) to foster reconciliation within the village or otherwise given directly to the aggrieved party as compensation.

However, Majinbon added that sogit is not always about sacrificial penalties.

Traditional forms of justice can sometimes be more flexible and practical, helping both parties reach an outcome that respects communal values and acknowledges cultural practices.

"For instance, growing up, the custom of showing respect to my elders was a significant part of native culture so when a younger person seeks forgiveness from an elder, they may offer peace by placing a small amount of salt on the elder’s tongue as sogit.

"This gesture holds a deeply rooted meaning because the salt is an imperishable mineral, representing the unbreakable, timeless bond between generations. It is a reminder that elders have accumulated greater knowledge and wisdom throughout their life’s journey, hence the phrase, ‘having eaten more salt’, said Majinbon.

In the olden days, an offender could be punished by banishment where you are placed on a raft and set afloat down river, or be forced into combat or a trial of holding your breath.

Relevance now

Thousands of people utilise the native court to settle their disputes that would otherwise clog civil courts.

Sikayun said the most common cases are native land disputes which generally concerns boundaries, trespass, followed by inheritance of native estate, matrimonial matters and other customary matters.

The Native Court of Sabah serves a practical role beyond preserving identity, traditions, and beliefs.

They offer a more accessible option for native communities to settle disputes, as opposed to taking matters to civil courts, which can be costly and time-consuming.

A family dispute regarding inheritance for example, may take years to resolve in the civil courts, but a native court could potentially resolve the matter through mediation and wisdom at a far more amicable manner, without having to go through a tedious legal process involving lawyers.

"On occasions where there is dissatisfaction with the outcome, there is the avenue of elevating the matter to a district native court presided by the district officer and finally the Native Court of Appeal presided by a native High Court judge”, said Sikayun.

"But the real difference between the native court of Sabah and the civil courts is the pursuit of restorative justice over purely punitive measures. This is what makes the Native Court of Sabah unique to us,” said Sikayun and Majinbon.

The native court emphasises reconciliation and mediation over punishment, utilising culturally relevant, practical and flexible forms of justice to keep communities peaceful and close knit.

Need for reform

Acknowledging its significance to the native communities of Sabah, the current government has set up a reform committee which both Sikayun and Majinbon are members of, to look into the reform of the native court to be on par with the civil and Shariah courts.

The committee has proposed institutional amendments affecting the court’s organisational structure, procedures, as well as its jurisdiction and powers.

Among them is to update the court’s current definition of a native, and include Muslim natives and also get rid of primitive punishments and beliefs like banishments and trial by drowning.

It will also raise the minimum age of consent for marriage for girls, which is currently considered acceptable as soon as they have their first period.

The proposals also address the appointment of the native chiefs and judges to require adept knowledge of customs in order to not make arbitrary decisions and judgments that may not serve the original spirit of native courts.

"We would like to ensure that judges and those in decisive positions have attained a degree of competency, understanding and significance of native laws and should be free of political influence.

"Now, it is up to policymakers to bring these reforms to life and ensure they are effectively implemented,” said Sikayun.

"At the core of these reforms lies a need to preserve our restorative approach to justice, which has long defined us. In seeking equal status with the civil and Shariah courts, we must also strive to remain uniquely ourselves, upholding the values that distinguish our system,” said Majinbon.