MIRI: Dayak National Congress president Paul Raja welcomes Chief Justice of Malaysia Tan Sri Richard Malanjun’s proposal of elevating Native Court to be the third pillar of justice, saying it is long overdue.
“I have always been advocating for this for a long time. Many conferences, seminars and forums have been conducted on this. But the subject makes no headway so far,” he said.
He said it’s the ultimate dream of the natives of Sarawak to have a dignified judicial system that understands them, and in which they have confidence that they could access for justice.
Paul Raja
He was responding to Malanjun’s suggestion in his plenary paper presented during the Borneo Rainforest Law Conference 2019 in Kota Kinabalu on Thursday that the status of native courts be raised to the same level as civil and shariah courts.
He said that land claims should not go through the civil law system and proposed empowering indigenous courts , pointing out that for the indigenous people, they hear stories from their ancestors, which is oral evidence, but is hearsay in civil law.
Paul, who is also DAP head of NCR land committee and a lawyer, agrees, saying there were many reasons for it failing to take off earlier.
He said all stakeholders must agree on the matter – the native community, community leaders who are custodians of the adat, the politicians, the Sarawak government, DUN, federal government, and finally Parliament.
Once there’s a consensus and all parties work together as in the past, the native community could push for it with the support of the civil societies. But there is a lack of response from the government for unknown reasons.
The various aspects to be considered on this subject include amendments to the federal and state laws.
“The most challenging one is the Federal Constitution to grant judicial power to the Native Court over native customs in Sarawak and Sabah besides the civil and shariah courts,” he said.
Jurisdiction must cover the entire customs and not just cherry-picking and a holistic approach must be done to enable it to be dignified, and respected with the necessary powers of enforcement, he added.
Paul also said judges must be properly equipped, qualified and trained in the field of customary laws, which requires the revamp of the current method of appointments.
“Ideally, judges of the native courts must have some legal training and must be very conversant with the customs of the people. The practice of hiring retired civil servants must stop; appointments must be for career people,” he said.
The court must be an independent body and operate in a similar way to the civil courts with the necessary allocations and support, and must no longer fall under the Chief Minister’s Department nor dictated by the State Attorney General’s Office.
He said other support agencies like Majlis Adat Istiadat must be properly constituted and must be independent councils which have custodian over the adat.
They must not be under the influence of the government and must be able to state their stand even if it means contradicting the government.
He suggested that as a preparation, a training institution has to be established to provide training for the judges and the officers of the court.
The ball is in the Sarawak government’s court, he added, which must see it in a positive light and has the political will as spelt out in its ‘Sarawak First’ stand by empowering Sarawakians with the rights.
“Custom is a state matter under the Federal Constitution, so the duty to propose and move the amendment must be made by the Sarawak government or at least, it must give its full support to any body that moves the amendment to the laws,” Paul said.