KOTA KINABALU: Dialogue sessions between the Native and Syariah Courts should be organised to clarify jurisdictional questions in order to promote harmony and respect between the two systems.
In particular, Section 9 of the Native Court Enactment 1992 needs to be reviewed in relation to the adoption of children and land heritage claims.
This was among the recommendations proposed by the Human Rights Commission of Malaysia (Suhakam) on improving the judicial standing, as stated in its Annual Report 2012, which was tabled in parliament on March 26.
Suhakam also suggested that native courts should play a more active role in inter-generational teaching of the adat (culture), particularly to youth.
The recommendations were made during the state-level Forum and Training in the Indigenous Legal System (FTILS) held in October 2010 which discussed ways to enhance recognition of native courts, and the inter-generational and indigenous legal system.
It was participated by district and native chiefs, village heads, youth and also community representatives.
Among other recommendations include the need for both state and federal governments to continue providing financial and political support to native courts and for the establishment of the Native Court Training Institute (NCTI).
The Commission welcomed the federal government’s contribution of RM30 million to Sabah in 2010 for infrastructure and administrative support for four native courts, and the establishment of the NCTI, describing it as an act to show their support on native courts.
Such support should not only be for infrastructure development but also for human and technical resources, and it would enable the institute to plan and implement programmes to train court personnel, youth and other members of the indigenous community to appreciate their culture.
“The native court should play a more active role in inter-generational teaching of the culture, particularly to youth.”
There is also a need for clear guidelines in appointing district and native chiefs as well as village heads to ensure their integrity and independence in upholding culture, and it would not be tainted by interference from political parties.
Suhakam also calls for the revision of the Interpretation (Definition of Native) Ordinance 1952, and the state should conduct proper surveys to validate the status of natives.
It was also recommended that amendments to the Native Court Enactment 1992 should include a provision to enable native courts to play an advisory and/or verification role relating to customary lands and history of native settlements, and to empower district chiefs to provide advice on land-related custom to relevant departments, including during Land Utilisation Committee meetings.
Suhakam in its report also suggested that native courts be supported in the documentation of the customs related to sogit (fines) for each ethnic group, as a reference point for native courts and village heads.
The native court and arbitration at village level are still considered relevant to the indigenous people.
In fact, native courts themselves had been identified as the agency with the most significant role to play in enhancing the indigenous legal system and continuity of the customs.
These courts are under the jurisdiction of the office of Native Affairs, Local Government and Housing Ministry, State Attorney-General’s Chambers, and respective district offices.
While a number of native chiefs have been involved in the on-going review of the Native Court Enactment 1992 and Rules 1995, there has been no continuity in terms of information flow and feedback.
So it was recommended that the State AG Chambers and the ministry’s permanent secretary, in overseeing the review, involved the widest number of native court officials so any amendments are in line with the customs.