This essay will discuss the statement that Native Customary Law (NCL) in Sabah and Sarawak is uncodified. It is often assumed that customary law, or adat, is purely a system of unwritten rules passed down through oral tradition. However, this assumption is incorrect when applied to the legal systems of Sabah and Sarawak. This essay argues that the statement is misleading because much of the native customary law in Sabah and Sarawak has been recorded in codified summaries. While these codes do not always have the same binding force as statutes, the courts treat them as highly persuasive and authoritative statements of the custom, and in some instances, they have been given statutory force. This demonstrates a significant departure from a purely uncodified system.
The Status of Codified Customary Law
Native Customary Law originates from the long-standing practices and beliefs of the indigenous communities of Sabah and Sarawak. While historically unwritten, efforts to record these customs began during the colonial era and have continued since (Bulan, 2006). These efforts resulted in written compilations, often referred to as codes or digests. The legal status of these written texts is important. Generally, the codification of custom does not, by itself, turn that custom into legislation. As explained by legal scholars, these codes are primarily declarative; they are written evidence of the custom, not the source of the law itself (Hooker, 1976). However, they are not merely historical documents. The courts in Malaysia treat them as highly persuasive evidence in deciding cases involving NCL. Their authority is enhanced when they are formally recognised or incorporated into statutes, often as subsidiary legislation, at which point they become legally binding in the same way as any other written law.
Native Customary Law in Sarawak
In Sarawak, the process of recording NCL began under the rule of the Brooke Rajahs. This led to the creation of several written texts for different ethnic groups. The most well-known of these is the Iban Tusun Tunggu, a code of customary fines and procedures last revised in 1993. Similar codes exist for other communities, such as the Orang Ulu Customary Code of Fines and the Dayak (Bidayuh) Customary Code of Fines. The legal system provides a formal mechanism for the recognition of these laws through the Native Courts Ordinance 1992 and the Native Customary Laws Ordinance 1992. While the Tusun Tunggu itself has not been gazetted as subsidiary legislation, it is consistently treated by the courts as an authoritative statement of Iban adat. For instance, in cases concerning disputes over land, marriage, or inheritance, the Native Courts and the superior civil courts will refer to the Tusun Tunggu to ascertain the relevant custom. The courts have held that such written texts are strong evidence of the customs they describe, even if they are not exhaustive (Bulan, 2006).
Native Customary Law in Sabah
The situation in Sabah provides an even stronger rebuttal to the idea that NCL is entirely uncodified. During the colonial period, G.C. Wooley, a government official, produced a series of influential digests on the customary laws of several native communities, including the Dusun, Murut, and Kwijau. These compilations are collectively known as "Wooley's Codes". Crucially, unlike some of the Sarawak codes, Wooley’s Codes were given express statutory recognition. The Native Affairs Ordinance 1953 (now Cap. 87) declared that these digests "shall be a correct statement" of the customary law for the relevant communities. This provision gives the codes a definitive legal status beyond merely being persuasive. They are applied by the Native Courts in Sabah, which are established under the Native Courts Enactment 1992. While the courts may still hear evidence on customs not covered by the codes, the existence of these statutorily-endorsed texts demonstrates that a significant body of Sabah’s NCL is formally codified and forms part of the written law of the state.
Conclusion
In conclusion, the statement that Native Customary Law in Sabah and Sarawak is uncodified is a significant oversimplification and is largely incorrect. While NCL has its roots in unwritten tradition, a substantial effort has been made over many decades to record and systematise these laws. In both states, written codes and digests exist which document the customs of various indigenous groups. In Sarawak, these codes are treated as highly persuasive and authoritative evidence of the law in the courts. In Sabah, the codification is even more formal, with Wooley’s Codes being granted statutory authority as correct statements of the law. Therefore, while unwritten customs still play a role, the legal landscape is dominated by these codified summaries, which provide certainty and accessibility, fundamentally challenging the notion that NCL remains an uncodified system.
References
- Bulan, R. (2006) Native Title in Sarawak, Malaysia: The Legal and Policy Issues. In: Ghai, Y. and Cottrell, J. (eds) The Law of the Land: A Study of the Land Laws of Malaysia. Sweet & Maxwell Asia.
- Hooker, M. B. (1976) The Personal Laws of Malaysia. Oxford University Press.
- Native Affairs Ordinance 1953 (Sabah Cap. 87).
- Native Courts Enactment 1992 (Sabah).
- Native Courts Ordinance 1992 (Sarawak).
- Native Customary Laws Ordinance 1992 (Sarawak).
