ISLAMIC SCIENCE UNIVERSITY OF

M A L A Y S I A
Faculty of Syariah and Law

LBA 1043
Malaysian
Legal
System II
Special Court
Native Court in Sarawak
© Muhammad
Nizam
Awang @ Ali

1
 • Definition of ‘native’
• Courts Hierarchy/ Court
Members
• Overview of Courts
Jurisdiction
Discussion
• Local Jurisdiction
Points • Original Jurisdiction
• Appellate Jurisdiction
• Revisionary and Supervisory
Jurisdiction
• Supervisory Jurisdiction by
High Court
• Matters out of jurisdiction
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 • Institution of Proceeding
• Transfer of Proceeding
• Detailed Hierarchy/
Jurisdiction of Court
Discussion – Headman’s Court
Points – Chief Court
– Chief’s Superior Court
– District Native Court
– Resident’s Native Court
– Native Court of Appeal
• Legislation: Native Court
Ordinance (Sarawak) 1992
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 Definition of ‘native’
• Art. 161A(6)(a) FC:
• A citizen, and either belongs to one of the
indigenous races to the State or is mixed
blood delivering exclusively from those
races
• Art. 161A(7) - Definition of ‘races’ –
Bukitans, Dusuns, Sea Dayaks,
Kadayans, Kalabits, Kayans….
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Courts Hierarchy –s.3 &
Court Members – s.4
Native Court of Appeal (NCA)

Resident’s Native Court (RNC)

District Native Court (DNC)

Chief’s Superior Court (CSC)

Chief’s Court (CC)

Headman’s Court (HC)

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 Overview of Courts
Jurisdiction
Appellate Native Court of Appeal (NCA)
Courts
Resident’s Native Court (RNC)
Matters involving
land disputes
District Native Court (DNC)

Chief’s Superior Court (CSC)

Matters involving
breach of
First Instance Chief’s Court (CC) native law/ custom
Courts

Headman’s Court (HC)

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Local/ Local jurisdiction–s.7(1)
Jurisdiction
Territorial

• S.7(1)
– Causes/ matters arising within local
jurisdiction
– Causes/ matters arising outside local
jurisdiction, but defendant is originally
resident within such area

– s.7(1) Proviso : Causes/matters relating to

immovable property, the jurisdiction will
depend on where the land is situated
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 Original Jurisdiction

s.5(1):
• Cases involving native law/custom
(All parties are native)

(d) Cases involving native law/custom –

cases relating to religious,
matrimonial or sexual matter
(One party is a native)
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 Original Jurisdiction (2)
(c) cases out of Syariah Court
jurisdiction where the value of subject
matter does not exceed RM2000 and
all parties are subject to the native
system of personal law

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 Original Jurisdiction (3)
(d) criminal case of minor nature-
specifically in the Adat Iban or any
other customary law where the power to
punish to fine not exceeding likewise
under s.11
(e) any other matter empowered by
written law

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 Problem
Original 1 (3)
Jurisdiction
• Scenario I
• What if both courts (civil court and native court)
have concurrent jurisdictions?

• Look where the proceeding is commenced.

Unless…
(a) refer to commit the case for trial under CPC
by some other court having
jurisdiction (it means civil court)
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 Original Jurisdiction (4)

b) in the case of Native Court,

make an order under s. 5(6): the
case is transferred for trial by some
other courts (order of transfer the
case from native Court to other courts)

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 OriginalProblem
Jurisdiction
2 (5)
• Scenario II
• Cases relating to matrimonial or sexual
matter – of different sex & community –
S.5(2)
– Parties are bound by the law/custom of
the community of which woman is the
member –s. 2
– Woman who embraced Islam is bound
by Islamic Family Law Ordinance 1991
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 Appellate Jurisdiction
Native Court of Appeal (NCA)
(e)

s.13 Resident’s Native Court (RNC)

(d)
District Native Court (DNC)
(c)
Chief’s Superior Court (CSC)
(b)
Chief’s Court (CC)
(a)
Headman’s Court (HC)

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 Appellate Jurisdiction (2)
Appellate Jurisdiction

• S. 12(1)- An appeal shall lie:

– a) right on any ground of appeal: if it involves
question of native law/custom alone
– b) on any ground of appeal: if it involves question
of fact @ fact + law ( with the lave of the Resident)

• S.12(2) - If appeal from Resident’s Native

Court , appeal lodged with the Resident and
in other every case, appeal lodge with District
Officer (within the district if NC)
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 Appellate Jurisdiction (2)
Appellate Jurisdiction

Shall state grounds of appeal, unless:

a) if there is no ground stated, Resident,
DO or any body with appeal is lawfully
lodged shall ascertain and record the
grounds of appeal
b) DO may authorise any other person
to receive appeals and to exercise
functions likewise the appeal from
district subordinate courts to DNC.
and transmit them to DO.
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 Appellate Jurisdiction (3)
Appellate Jurisdiction

• S.12(3)- Appeal shall be made in writing

within 30 days from the date of the
decision
• No appeal shall lie to DNC- S.13(2) if
the judgments:
(a) related to the cases under s.5(1)/(2)
(b) of Chief Superior Court is expressly
declared to be final
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 Revisionary
Revisionary Jurisdiction
Jurisdiction? – s.16
• S.16 - Where there is error material in any
cases @ involving miscarriage of justice
– The Native Court may exercise the
power of revision vested in the High
Court in such manner as the justice of
the case may require – s.16(1)
– The Native Court of Appeal may refuse
to exercise the power if the party has
not exhausted his rights of appeal
under the Ordinance –s.16(1) Proviso 18
 Revisionary Jurisdiction (2)
Revisionary Jurisdiction

• Before exercising the power, the Judge

may request the Resident or District
Officer or the Sarawak Administrative
Officer to give report about any order upon
consideration of the appeal. – s.16(3)
• Such officer must serve the report to all
parties to the appeal. –s.16(3)

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 Revisionary Jurisdiction (3)
Revisionary Jurisdiction

• No revision after the expiration of 12

months from the termination of such
proceedings in the Native Court – s.16(2)

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Revisionary Jurisdiction (4)
Revisionary Jurisdiction

• Supervisory Jurisdiction applies when:

– Any finding of the Native Court is illegal/
improper
– Fair trial cannot be done in Native Court
– Some question of unusual difficulty is likely
to arise
– Generally for expedience and justice
• May order for trial de no novo (trial
within trial)
• When RNC exercise this power, NCA
may need need to do so – s.16 21
 Supervisory Jurisdiction
by High Court
• By way of prerogative writs, if there is:
– Lack of jurisdiction
– A serious failure to perform justice
– Breach of natural justice
– Case:
• Haji Laugan Tarki v. Mahkamah Anak Negeri
Penampang
• Ongkong anak Salleh v. David Panggau Sandin

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 Matters Out of
Court Jurisdiction
s.28 - Except provided under s.5, 20 and 23
(a) Charge of offences that may carry
death sentence
(b) Offences under Penal Code

(c) Matrimonial matters under LRA 1976 and

the Registration of Marriages
Ordinance 1952, unless… it is bride-
price or adultery and founded only on
native law/ custom

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 Matters Out
Mattersof
out of court jurisdiction

Court Jurisdiction (2)

d) Proceeding as to title registered

under National Land Code

e) Breach of native law – punishment

is less severe than the maximum
penalty than under the NCO

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 Out of Court Jurisdiction (3)
Matters out of court jurisdiction

f) cases under Islamic Family

Ordinance 1991 and Malay Custom of
Sarawak
[Any Muslim natives – s.1(2) except in
cases under s.5(3) and s.20]

g) any proceedings taken under any

written law in the State

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 Institution of Proceeding
Institution of Proceeding

• S.5(1) – if the Resident consider proceeding

under s. 1(b)/(e) or s. 2 are likely:
– to cause good relations between communities or
– lead to breach of public order
– Application more than one native system of
personal law
– Remedies may be prayed in other courts
– Then, proceeding shall stay or shall not be
commenced
– Resident shall make a report to State AG who
may confirm or set aside such order

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 Transfer of Proceeding
Transfer of Proceeding
(from civil court to native court)
• If it is civil or criminal proceeding that require
determination according to:-S.5(4)
– a) native law /custom applicable to any native
community
– b) any other customary law by whose custom the
Native Court is bound

– And the proceeding was commenced in civil court

(under SCA 1948), it shall be transferred to a Native
Court – s. 5(4)

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 Transfer of Proceeding
Transfer of Proceeding
(from civil court to native court) (2)
• If the proceeding involves concurrent jurisdiction
of the civil court (under SCA 1948) and native
Court (other than cases under s.5(1)): the case
shall be tried where the proceeding is
commenced unless:
– a) refer to commits the case for trial under CPC by
some other court having jurisdiction (it means civil
court)
– b) in the case of Native Court, make an order under s.
5(6): the case is transferred for trial by some other
courts (order of transfer the case from native Court to
other courts)
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 DETAILED HIERARCHY/
JURISDICTION OF COURTS
– HEADMAN’S COURT
– CHIEF COURT
– CHIEF’S SUPERIOR COURT
– DISTRICT NATIVE COURT
– RESIDENT’S NATIVE COURT
– NATIVE COURT OF APPEAL

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 Transfer of Proceeding
(from civil court to native court) (3)
Transfer of Proceeding

• If the proceeding in Native Court, the court

may at any time transfer the case for hearing/
determination by ant other Native Court/
Magistrate’s Court of competent jurisdiction
– Copy of the order and reason for transfer shall be
transmitted to the Resident
– If the transfer is illegal, improper or there is
irregular proceeding, the Resident shall order
proceeding to stay or shall not be commenced –
s.5(6)
– New court will start proceeding from the beginning
(de novo proceeding)- s.5(7)
• Every case shall be heard in the lowest court
of competent jurisdiction – s.5(8) 30
HEADMAN’S
COURT
(HeC)
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 Original Jurisdiction –Headman’s
HeCCourt

• To hear all matters except cases under

s.5(3) (land disputes)
• Refer to s.5(1), s.5(2).

• For details, refer to the topic of ‘General

Overview of Native Court Jurisdiction’

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CHIEF
COURT
(CC)
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 Original Jurisdiction - CC
Chief Court

• To hear cases involving land disputes

and where all parties are subject to the
same native law–s.5(3)
• For details, refer to the topic of ‘General
Overview of Native Court Jurisdiction’

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 Appellate Jurisdiction - CC

• Appeal from Headman’s Court –

s.13(1)(a)
• Basis of appeal: matter of rights where it
involves question of native law and
custom alone -s.12
• If it involves about question of fact only or
fact and law or against imprisonment –
need leave of the Resident - s.12
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 CHIEF’S
SUPERIOR
COURT (CSC)
36
 Original Jurisdiction - CSC
Chief’s Superior Court

• Cases of breach of native law heard by

the Chief’s Superior Court and the lower
courts (collectively referred as native
courts) in their respective local
jurisdiction- S.5(1), s..5(2)
• For details, refer to the topic of ‘General
Overview of Native Court Jurisdiction’

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 Appellate Jurisdiction
Chief’s- Superior
CSCCourt
• Hear the appeal from Chief’s Court –
s.13(1)(b)
• It is the highest appellate court for:
– Breach of custom and offences relating to
matrimonial, religious and sexual cases
– All civil matters where the values does not
exceed RM2000
– Minor criminal offences.
– Decision is final for all disputes except for
cases under s.5(3)
– See s.5(1), s.5(2) 38
 Superisory Jurisdiction
Chief’s - CSC
Superior Court

• Supervise the decision made by Chief’s

Court and the Headman’s Court – s.5(6)

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DISTRICT NATIVE
COURT
(DNC)
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 Original JurisdictionDistrict
- DNC Native Court

• To hear matters under the codified custom

– s.131 Adat Iban Order 1993 (bigamy/
offences of causing disruption by fire in a
longhouse)

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 Appellate JurisdictionDistrict
- DNC Native Court

• From CSC to DNC – s.13(1)(c). Read with

s.s.13(2)
• To hear appeal from lower courts in land
dispute – s.5(3)
• No appeals on:s.5(1)/(2)
– Breach of native customs and matrimonial or
sexual matters
– Judgment of Chief’s Superior Court is
expressly declared to be final and conclusive
– For details, refer to the note: General
Overview of Native Court Jurisdiction – 42
Appellate Jurisdiction
 Supervisory Jurisdiction
District-Native
DNC Court

• Exercise the similar supervisory

jurisdiction and powers as vested
upon other appellate courts – s.16

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 RESIDENT’S
NATIVE COURT
(RNC)
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 Original Jurisdiction - RNC
Resident’s Native Court

• S. 20 – specific original jurisdiction

– s.9 of the National Land Code, the question
whether any non-native has become
identified with a particular nativecommunity
and subject to the native system of personal
law of such community
– whether a person who is subject to a particular
personal system of personal law has become
subject to different personal law
– whether a person subject to the personal law of a
particular community ceased to be so subject
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 Appellate Jurisdiction - RNC
Resident’s Native Court

• From DNC to RNC concerning lan

disputes or native status – s.13(1)(d)

• Appellate power is the same like NCA –

s.14

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 Revisionary & Supervisory
Resident’s Native Court
Jurisdiction - RNC
• s.16 - For details, see notes on ‘General
Overview of Native Court Jurisdiction:
Supervisory and Revisionary Jurisdiction’

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NATIVE COURT OF
APPEAL (NCA)

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 Appellate
Native Jurisdiction
Court - NCA
of Appeal (NCA)
• From RNC, by way of petition for revision
to the NCA
• NCA has the same power and standing as
the High Court.-s.14(2)
• Read with: s.20(5)- determination of native
status

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 Appellate Power - NCA

• See s.14 & s.15

• s.25

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 Revisionary and Supervisory
Native Court of Appeal
Jurisdiction - NCA
• Will not hear revise after expiration of 12
months from the termination of such
proceeding in the Native Court – s.16(2)

• No matter that has previously revised

need to be revised again (for the second
time) – s.16(2)

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 Courts Power - s.11
DNC Imprisonment - 2 years; Fine – RM5000

CSC Imprisonment – 1 year; Fine – RM3000

CC Imprisonment – 6 months; Fine –

RM2000
HC Fine - RM 300

Court may award full compensation (regardless of the fines

prescribed above) authorised under Adat Iban or
any other customary law whose custom is bound
(refer to Adat Iban 1993 which is governed by the
Native Customs (Declaration) Ordinance 1996. 52
 Courts Power - s.11

• Where there is modification of law under

Native Customary Law Ordinance,
power of the court extend to:
– CSC – imprisonment: 2 years; RM5000
fine
– CC - imprisonment: 1 year; fine RM3000
– HC – fine : RM 500

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 Courts Power - s.11

• If the amount of pecuniary penalties

imposed by native law are greater
than NCO 1992, the court may
approve such penalties.
• But it shall not exceed the limit under
the Native Court (Criminal Jurisdiction)
Act 1991- s.11(4)
• S. 2 of NC(CJ) Act 1991 – Item 13, List
IIA, Ninth Schedule of FC – 2 years’
imprisonment and fine not exceeding
RM5000 54
 Courts Power - s.11
Imprisonment in lieu of Default of
Compensation/ Fines - s. 18(1)

Fines Imprisonment (month)

Less than RM50 1
RM50 – RM100 2
RM100 – RM200 4
RM200 – 500 6
More than RM500 12

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 Recap
• Definition of ‘native’
• Courts Hierarchy/ Court Members
• Overview of Courts Jurisdiction
• Local Jurisdiction
• Original Jurisdiction
• Appellate Jurisdiction
• Revisionary and Supervisory Jurisdiction
• Supervisory Jurisdiction by High Court
• Matters out of jurisdiction

56
 Recap (2)
• Institution of Proceeding
• Transfer of Proceeding
• Detailed Hierarchy/ Jurisdiction of Court
– Headman’s Court
– Chief Court
– Chief’s Superior Court
– District Native Court
– Resident’s Native Court
– Native Court of Appeal

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W
o
r
d “Easy is right.
s
Begin right and it will be easy
o Continue easy and it will be right
f The right way to go easy
Is to forget the right way
w
And forget that going is easy.”
i
s
d Chung Tzu
o 58
m
Next lesson

Legal Profession

Legislation:
Legal Profession Act 1976
59