THE CIVIL COURTS AND DETERMINATION OF NATIVE CUSTOMARY LAND RIGHTS: MERELY DECLARING OR MAKING LAWS?

Abstract

It is often said that laws are made by legislature and the judges’ role is only to declare and to interpret those laws. In interpreting the laws, the courts apply laws to new situations thereby developing the law. Indeed, judicial decisions have an important role in clarifying customary rights to land based on native laws and customs in Malaysian Borneo. Although breaches of native laws and customs are within the jurisdiction of the state Native Courts, major disputes over land rights which involve non-native parties have been fought in the federal system of civil courts. This paper looks at judicial decisions relating to the customary practice of pemakai menoa, and argues that recognition of land rights begin with recognition of indigenous legal traditions. To achieve justice and equality, and to prevent the law from being oppressive, the courts must make a conscious inquiry and contextual application of customs. In the light of inherent evidentiary difficulties in adjudicating native claims, this means approaching the rules of evidence, giving due weight to the unique perspectives, the normative values and rights under indigenous legal traditions and customary laws. Keywords: native law and customs, native customary rghts to land, judicial contextualisation, Pemakai Menoa and territorial rights, Pulau, role of judges