IN last week’s article I raised the proposition that the native legal system prevailing in Sabah (then known as North Borneo) before the British was on par if not better than the legal system imported by the British that eventually displaced native law.
My contentions, which raised more than a few eyebrows, is backed up an eminent Borneologist and writer Owen Rutter who published a work known as the ‘Pagans of North Borneo’ in the second decade of the 20th century.
Rutter writes ‘When the Chartered Company assumed responsibility for the government of North Borneo, it found in being a body of customs and common law, receiving binding force from immemorial usage, by which the headman of each village administered justice.
“This common law was based on principles which, considering the primitive condition of the people who had evolved them, were surprisingly sound, and the penalties it exacted were, for the most part, certainly more humane than those prescribed by our own English common law up to two centuries ago, when the sentence of death was still awarded for theft, and when more heinous offences were punishable by drawing and quartering.
“The closer study one gives to this native law, the more one realises how the pagans, whom so many Europeans regard contemptuously as ‘savages,’ are entitled to respect. The sympathetic investigator who is sufficiently broad-minded to set aside the conventional standards of ethics and morality to which he himself has grown accustomed, and to examine native customs not by his own standards, but having in mind local conditions and judging them purely from the angle of equity and common-sense, may well view with amazement the elaborate and equitable body of law which these primitive peoples, with no writing, no learning, no past civilization, have built up.
“These fundamental principles of pagan justice are not at variance with our own (ie English common law), and it is interesting to note that in North Borneo married women obtained the right of holding property and equal rights of divorce with men, centuries before the women of Great Britain obtained theirs.
“The law falls into three main headings: offences against the person, offences against property, and offences against the community. In the first group the correct relationship between the sexes is very clearly defined; strict observance of this relationship is demanded and breaches of observance are punished, often severely.
“English common law has never taken cognisance of offences simply on the grounds that they are immoral; adultery, for example, has never been a criminal offence in England, either at common law or by statute; but in North Borneo it is held so to be, and in olden days the penalty was death, which in certain districts took the form of placing the guilty parties on the ground face to face and driving a stake through them.
This offence was, in fact, next to incest, regarded as the most serious in the pagan calendar, and custom allowed an injured husband who caught his wife in her lover’s arms to kill both.
“Native courts, unhampered by legal technicalities, administer justice according to the spirit, not the letter, of the law; their judgements are almost invariably sound and dictated by common-sense.”
Immediately the following conclusions can be drawn from Rutter :- 1. Although the British acknowledged themselves to be superior they admitted that the native law system in place in Sabah was sound and in fact more humane in sentencing than the British common law. 2. Sadly unlike Rutter, the general perception of the British towards the natives of Borneo was that they were ‘savages’ with no learning or past civilisation. 3. Despite this misconception, Rutter did admit that the woman of the so called ‘savages’ enjoyed better property and marital rights long before the ‘civilised’ British women obtained their rights in this area of law. 4. The native law or in fact the law of the ‘pagans’ as Rutter referred to the Borneo natives had high moral content when compared with the British legal system that was structured in Judeo-Christian roots.