KOTA KINABALU: Chief Justice Richard Malanjum today suggested that the status of native courts be raised to be on the same level as civil and shariah courts.
In suggesting that the indigenous native courts be elevated to the same level as that of the shariah and civil courts, he said: “People will worry, saying it means there will be three systems.
“But not to worry because they (indigenous courts) deal with personal laws, more on native customary rights (NCR).”
He said more often than not when a case was transferred from the native courts to the civil courts, the judges would overrule the earlier judgment simply because they did not understand native laws.
“The NCR used to be respected as you can quite easily win a claim (on a land).
“But now when you read the law reports, maybe only one or two out of 10 cases may succeed.
“And the saddest part is these cases are not heard by the natives themselves.
“It will go through the civil court, and who sits there? Some judges who may be foreign to the NCR or native laws and they will apply their civil law knowledge,” he said when presenting his plenary paper during the Borneo Rainforest Law Conference 2019 here today.
Malanjum said that was among the reasons for the unhappiness among indigenous people.
He said that’s why they claim they have not been given the right access to justice.
“For the indigenous people, they hear stories from ancestors, which is oral evidence, but in civil law that is hearsay. But to indigenous people, that is credible evidence. If an indigenous judge is hearing the case, he might understand.
“That’s why our civil court judges should first understand the native land system instead of judging it from the prism of civil law.”
He hoped one day land claims get reverted to the indigenous courts.
“To me, it should not go through the civil law system. One way of doing that is to empower indigenous courts so they can hear matters pertaining to indigenous land,” he said.
Handling cases pro-bono
Malanjum also called on young lawyers to take up public interest litigation cases on behalf of indigenous people.
He lamented that only a few lawyers were willing to defend cases involving indigenous people, more so on a pro-bono basis.
He said this was among the reasons indigenous people had been left behind compared with other communities.
“This is because their voices have hardly been heard. We, the lawyers, should be blamed for this, especially in this part of the world.
“How many of us have taken up a public interest litigation (PIL) case where you fight for the indigenous people pro bono? Only a handful.
“It is through PIL that the voices of the voiceless indigenous people can be heard.
“So our lawyers, especially the young ones, please think about it. Go for PIL to help the indigenous people.”
For example, he said he found a group that needed such help during a mobile court trip to a remote village in Sabah’s Long Pasia, which is a short distance from Kalimantan, Indonesia, recently.
“There are quite a number of elderly people there, in their 70s or 80s, who were soldiers during the Indonesia-Malaysia Confrontation period.
“They fought for Malaysia, being the local police in the frontlines. Yet, many of them are still not citizens of this country. Why? Because of this, their children are also equally not citizens.
“Who is speaking up for them? We’ve already been independent for 61 years. Why were these people left out? If not for them, we may not be where we are today,” Malanjum said, adding non-citizens faced many disadvantages, such as high medical fees.
He said another setback to the indigenous struggle was that PIL was only an elective subject in law schools.
“It’s not made mandatory and because of that, not many law graduates know its importance,” he added.
Malanjum also said poor leadership, including of elected representatives, had worsened the plight of indigenous people.
“After the election, the elected representatives are nowhere to be seen, giving many excuses why they couldn’t visit.
“Worst thing is that when they come to visit, they want to be adored,” he said, adding many indigenous people were prone to exploitation because of poverty.