ISLAMIC SCIENCE UNIVERSITY OF

M A L A Y S I A
Faculty of Syariah and Law

LBA 1043
Malaysian
Legal Special Courts
System II
Native Courts in Sabah
© Muhammad
Nizam
Awang @ Ali

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 • Definition of ‘native’
• Hierarchy of Courts and
Members
• Maximum Jurisdiction of
Court
Discussion
• Court Power
Points • Original Jurisdiction
• Appellate Jurisdiction/ Power
• Revisionary and Supervisory
Jurisdiction/ Power
• Court Decision/ Judgment

• Legislation: Native Courts

Ordinance (Sabah) 1992) 2
 Definition of ‘Native’
• Art.161A(6)(b) of FC:
– a citizen
– is the child or grandchild of a person of a
race indigenous to Sabah, and
– was born (whether on or after Malaysia Day
or not) either in Sabah or to a father
domiciled in Sabah at the time of the birth.

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Hierarchy of Native Courts/
Court Members
Native Court of Appeal
– s.5(1)/(2)

District Native Courts

– s.4(1)/(2)

Native Courts
– s.3(1)/ (2)

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Maximum Court Jurisdiction
• Native Courts (Criminal Jurisdiction)
Act 1991 (Act 471)
– Provides for the jurisdiction of Native Courts
(Sabah and Sarawak)
– 2 years’ imprisonment or RM5,000 fine or
combination of both – s.2
– The Native Court has no jurisdiction if the
offence is already provided under Penal
Code - s.2 Proviso
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 What isCourt
the Court Power? - s.10(1)
Power
• For the offences against native law/
custom - s.10(1)
(a) Impose fine or
(b) Order imprisonment or
(c) Or both
(d) Inflict any punishment – not
contrary to natural justice and
humanity
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 Court Power (2)
• Proviso of s.10: Fine/ imprisonment shall
not exceed amount conferred by federal
law
– Imprisonment has no effect unless it is
endorsed by a Magistrate – s.11

• The court may make any order – as may

be just and equitable under native
law/custom – s.10(2)
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 Court
What is the Power
Court Power?(3)
- s.11 & 12

• Order to pay compensation (in cash

or in kind) to the person injured or
aggrieved - s.12
– Compensation shall be paid at certain
time or by installment or otherwise
– Imprisonment in default of penalty or
compensation. Period of imprisonment
will justify the justice - s. 13 –S.14(1)
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 Original Jurisdiction
• s.6(1)
(a) Breach of Native law/ custom (All parties
are natives)
(b) Breach of native law or custom, religious,
matrimonial and sexual cases (if written
sanction is obtained from DO (One party
is a non-native)
(c) Cases on native law or custom relating
to:
– Betrothal, marriage, divorce and
judicial separation 9
 Original
Jurisdiction
Jurisdiction
of Court(2)
(2)

– Adoption, guardianship or custody of

infants, maintenance of dependant and
legitimacy
– Gifts or succession testate or intestate
– Any other cases
• No jurisdiction on matters under
Syariah Court jurisdiction – s.9
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 Issue: What is the court jurisdiction?
Original
JurisdictionJurisdiction
of Court
- s.6(2) (FOR CIVIL CASES) (3)
(3)
For civil cases:
Local jurisdiction refers to where- s.6(2)
a) Cause of action arose
b) Breach is alleged to have been
committed
c) Facts of proceedings

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 Original
Jurisdiction
Jurisdiction
of Court(4)
(4)
Scenario I:
In matrimonial/sexual cases and
parties are not of the same race- s. 6(3)

The court will follow native law custom of

the women’s race

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 Original Jurisdiction (5)
Scenario II:
Cases relating to gift or succession testate
or intestate

Native law or custom of the grantor

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 Original Jurisdiction (6)
• Scenario III
• Cases of adoption, guardianship or
custody of infants, maintenance of
dependants and legitimacy

• Native law /custom of whom institute

the proceedings

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 Appellate Jurisdiction
s. 18(2) – basis of appeal:
b) Matter of right – if the ground of appeal NCA
involves Q of native law or custom
d) With DNC leave Q of fact only @ Q of fact + s.18(1)
law @ mitigation of sentence

DNC

s. 17(2) – basis of appeal: s.17(1)

b) Matter of right – if the ground of appeal
involves Q of native law or custom
d) With DNC leave Q of fact only @ Q of fact + NC
law @ mitigation of sentence

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 Appellate Jurisdiction (2)
• Recalling Witness - s. 17(3)
– May recall witness
– Take further evidence itself
– Direct NC to take further evidence
– Summon any person to be assessor to
advise it
• Request of Written Report - S.19(1)
– NCA may request NC/DNC written report
before considering the appeal
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 Appellate Power
• Appellate Power – s.23(1)
(a) dismiss an appeal
(b) set aside or vary an order
(c) reduce @ increase sentence of imprisonment
(d) order rehearing by the same @ different NC

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 Revisionary &
Supervisory Jurisdiction
• S. 16(1) – Power of revision
– DNC may revise decision of NC
- If the proceedings are irregular,
improper or unconscionable
– The court may quash or vary the
sentence or direct a rehearing
(retrial)

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 Revisionary &
Supervisory Power
• S.16 - call for and examine the record of
proceeding in NC as to:
(a) the correctness, legality or propriety
of order passed by NC
(b) the regularity of proceedings in NC

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 Court Decision/ Judgment
- By unanimous or majority decision
– s.7, s.24

• Miscellaneous
• Power to punish on contempt of court
– s.25

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 Recap
• Definition of ‘native’
• Hierarchy of Courts and Members
• Maximum Jurisdiction of Court
• Court Power
• Original Jurisdiction
• Appellate Jurisdiction/ Power
• Revisionary and Supervisory Jurisdiction/
Power
• Court Decision/ Judgment
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 Next
Lesson
Special Courts
Native Court in
Sarawak

Legislation:
Native Court Ordinance
(Sarawak) 1992
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