Sarawak: native courts, native customary rights (NCR) land, customary marriages and time limits

The native courts

The Native Courts Ordinance 1992 sets up four native courts of original jurisdiction: the District Native Court, the Chief’s Superior Court, the Chief’s Court and the Headman’s Court (s 3). It does not apply to natives who profess Islam, except for cases on the Malay customs of Sarawak under s 5(1)(a)–(b), land disputes under s 5(3) and questions under s 20 (s 1(2)).

• What they hear (s 5(1)): cases on native law or custom where all parties are subject to a native system of personal law; native law or custom on religious, matrimonial or sexual matters where one party is a native; civil cases up to RM2,000 where all parties share the same native system of personal law (not Syariah matters); minor criminal cases listed in the Adat Iban or other customary law; and matters given to them by other written law.
• Land disputes between natives over NCR land or land in a Native Communal Reserve, claims for compensation for ending NCR, and inheritance of such land under native customary law, go first to the District Native Court, with appeal to a Resident’s Native Court (s 5(3)(a)–(b)). Disputes between natives over untitled land of other kinds go first to a Chief’s Court (s 5(3)(c)).
• Mixed communities: in matrimonial or sexual matters between a man and a woman of different communities, the court follows the law or custom of the woman’s community, unless written law says otherwise; a woman who has embraced Islam is bound by the Islamic Family Law Ordinance 2001 (s 5(2)).
• Transfer from ordinary courts: civil or criminal proceedings that must be decided by native law and custom, if started in a Subordinate Court, are transferred to a native court with jurisdiction (s 5(4)).
• Area: a native court hears matters arising in its local area or where the defendant is originally resident; matters about land go to the court where the land is (s 7(1)). If someone claims not to be subject to the court, a Magistrate decides and certifies it (s 7(2)).
• What they cannot hear (s 28): cases where death is alleged to have resulted from the offence; Penal Code offences; marriage or divorce under the Law Reform (Marriage and Divorce) Act 1976, except claims only about bride-price or adultery founded on native law and custom; title to or interests in land registered under the Land Code; breaches of the Islamic Family Law Ordinance 2001; and Syariah Court matters.
• Orders: compensation (including costs), payment of a penalty to the injured person, restitution of property, specific performance of a contract, or any other order justice requires; a forfeiture order needs a Magistrate’s endorsement (s 19).
• NCR land judgments: where no appeal is brought, the winning party serves a copy of the judgment on the Director of Lands and Surveys, who may file a notice of objection; the court then hears it and affirms or varies the judgment (s 22).
• Courts on appeal or revision decide according to substantial justice, without undue regard to technicalities, and no decision is set aside only for a defect of form (s 25).

Appeals and representation

• Route (s 13(1)): Headman’s Court → Chief’s Court → Chief’s Superior Court → District Native Court → Resident’s Native Court (the Resident sitting with two to four assessors versed in the customary law) → Native Court of Appeal, by petition for revision.
• Finality: a Chief’s Superior Court decision on s 5 matters, other than land disputes under s 5(3), is final and cannot be appealed further (s 13(1)(b), proviso; s 5(1), proviso (ii)); and no appeal lies to the District Native Court in cases under s 5(1) and (2) (s 13(2)).
• Grounds: an appeal lies as of right on a question of native law or custom alone, and on fact, mixed law and fact, or against a sentence of imprisonment (s 12(1)).
• Deadline: in writing within 30 days of the decision, or further time allowed by the appeal court, lodged with the Resident (for Resident’s Native Court decisions) or the District Officer (s 12(2)–(3)).
• Native Court of Appeal: a President (who holds or has held office as a High Court Judge or is qualified to be one), the President of the Majlis Islam or the Ketua Majlis of Majlis Adat Istiadat Sarawak, and a Temenggong nominated for the appeal (s 13(3)).
• Lawyers: an advocate may appear in the District Native Court, Resident’s Native Court or Native Court of Appeal only with the court’s permission, showing that it is necessary (s 10(1)). Any native court may allow a person who is not a lawyer to represent a party (s 10(2)).

Native customary rights (NCR) land

Under the Land Code (Cap. 81):

• How NCR is created: by felling virgin jungle and occupying the cleared land, planting fruit trees, occupying or cultivating land, using land as a burial ground or shrine, rights of way, or any other lawful method (s 5(2)).
• The 1958 cut-off: since 1 January 1958, new NCR can be created only on Interior Area Land with a permit under s 10; otherwise no NCR created after that date is recognised, and occupiers of State land are treated as unlawful occupiers (s 5(1)). Whether a right was acquired or lost is decided by the law in force just before 1 January 1958, unless the Code provides otherwise (s 5(2), proviso (ii)).
• Before title is issued: the land stays State land and no rent is charged; a native lawfully occupying it holds by licence from the Government, and the rights may be inherited by, or transferred or sold to, another native (s 5(2), proviso (i)).
• Extinguishment: the Minister may extinguish NCR by a direction published in the Gazette and a newspaper circulating in Sarawak and exhibited at the District Office; the land then reverts to the Government (s 5(3)(a)). Compensation is paid to anyone who proves their claim, or other land may be made available (s 5(3)(a), proviso).
• Claiming compensation: submit the claim with evidence to the Superintendent within the period in the direction — not less than 60 days from publication — or it will not be considered (s 5(3)(b)–(c)).
• Disagreeing: if your claim is rejected, or the land allocated or the compensation is inadequate or unfair, you may within 21 days of receiving the Superintendent’s decision require, by written notice, that it be referred to arbitration under s 212; the compensation is then deposited in the High Court (s 5(4)).
• Protection: State land with lawfully created NCR, or land under a native communal title, may not be alienated or used for a public purpose until all NCR are surrendered or terminated, or compensation is provided under s 5(3)–(4) (s 15(1)). A surrender is by deed; before it is signed, a notice is posted and served on the Headman, and anyone else claiming NCR over the land may object in writing within 21 days (s 15(2)). A person who does not object in time loses the right to compensation from the Government (s 15(3)).
• Grant in perpetuity: where a native has occupied and used unalienated State land under customary tenure amounting to ownership for residential or agricultural purposes, the Director may issue a grant in perpetuity free of premium, rent and other charges (s 18(1)). Premium and rent become payable if it is later transferred or subleased outside the persons who would inherit it on intestacy, or its use changes (s 18(3)).

Native Communal Reserves and native territorial domain

• The Minister may declare State land a Native Communal Reserve for a community with a native system of personal law; rights in it are governed by that community’s customary law (Land Code s 6(1)–(2)). The land remains State land and members hold as licensees of the Government (s 6(3)).
• A native community may claim usufructuary rights within a native territorial domain (s 6A(1)). The claim, with evidence, goes to the Superintendent; the area may not exceed 500 hectares, or up to 1,000 hectares if the Minister allows it with the approval of the Majlis Mesyuarat Kerajaan Negeri (s 6A(2)).
• If approved, a native communal title is issued in the name of a person or body holding it in trust for the community; it is in perpetuity, free of premium, rent and other charges, and cannot be assigned or transferred to anyone outside that community (s 6A(3)). If rejected, an aggrieved person may appeal to the Minister within 30 days of being told the decision (s 6A(4)). Disputes over who is a member of the community go to the District Native Court (s 6A(5)).

Non-natives and native land

• Except as s 9 allows, a person who is not a native of Sarawak may not acquire any rights or privileges over Native Area Land, Native Customary Land or Interior Area Land (Land Code s 8(a)).
• An agreement that would give a non-native such rights is treated as made for an illegal consideration: money paid cannot be recovered in court, and no relief is given for unpaid consideration (s 8(b)).
• Entering into such an agreement is an offence — a fine of RM1,000, and for a native offender an extra fine equal to the consideration received (s 8(c)). The native’s own rights are not adversely affected by the agreement (s 8(e)), and on conviction the court may order the non-native occupier evicted (s 8(f)).

Maintenance after a native customary marriage

The Native Customary Marriages (Maintenance) Ordinance 2003 (Cap. 55) applies to parties married under a native system of personal law or declared or recognised customary law, but not to Muslims or to marriages under the Law Reform (Marriage and Divorce) Act 1976 (s 1(2)–(3)).

• If the marriage has been dissolved, the wife has been deserted, or the husband has failed to maintain the wife or a minor or disabled child, the court may order periodical payments or a lump sum (s 3(1)).
• The amount is based primarily on the means and needs of the parties, regardless of its proportion to the husband’s income; the court may consider each party’s responsibility for the breakdown if there is evidence of it (s 3(2)).
• Applications are made by originating application under the Subordinate Courts Rules 1980, and orders are enforced under those Rules (s 4).
• The wife’s right under a court order ends if she remarries or lives in adultery (s 9(1)); unsecured orders end on either spouse’s death (s 8).
• Arrears are a debt (s 13(1)), but nothing that fell due more than three years before the suit is recoverable (s 13(3)).

Codes of adat

Under the Native Customs (Declaration) Ordinance 1996 (Cap. 22), the Majlis Adat Istiadat Sarawak may, after consulting the Chiefs and Headmen of the community and with the approval of the Majlis Mesyuarat Kerajaan Negeri, compile and publish codes of the customs of any native race (s 3), for the whole race or particular districts (s 4). A code may define offences and penalties, civil wrongs and compensation, and which native courts hear which cases (s 5). If a code conflicts with written law, the written law prevails (s 9).

Time limits for suing in Sarawak

The Limitation Ordinance (Cap. 49) sets its own periods in its Schedule. A suit brought after the period must be dismissed if limitation is raised as a defence (s 3). Some common periods (Schedule article numbers in brackets):

• Minors and persons of unsound mind may sue within the same period after the disability ends, but this never extends time by more than three years after the disability ends or the person dies (s 6(1), (5)).
• Fraud: if fraud kept you from knowing of your right, time runs from when you discovered it (s 18).
• Written acknowledgment: a signed written acknowledgment of liability before the period ends starts a new period (s 19(1)).
• Death: if a person dies before the right to sue arises, time runs from when there is a legal representative (s 17), except for suits for possession of immovable property.

These periods come from the Limitation Ordinance. Time limits for proceedings inside the native courts (under their rules) were not checked.

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Sources

• Native Courts Ordinance, 1992 — State Attorney-General's Chambers Sarawak (LawNet Sarawak)
• Land Code (Cap. 81, 1958 Ed.) — State Attorney-General's Chambers Sarawak (LawNet Sarawak)
• Limitation Ordinance (Cap. 49, 1958 Ed.) — State Attorney-General's Chambers Sarawak (LawNet Sarawak)
• Native Customary Marriages (Maintenance) Ordinance, 2003 (Cap. 55) — State Attorney-General's Chambers Sarawak (LawNet Sarawak)
• Native Customs (Declaration) Ordinance, 1996 (Cap. 22) — State Attorney-General's Chambers Sarawak (LawNet Sarawak)

Related

Sabah: native courts, native customary land, native estates and time limitsCourts and their powersLimitation Act 1953Family law: marriage, divorce, maintenance and custodyNational Land Code (Revised 2020)