Native Courts Research Articles

Debating Sharīʿa in Egypt’s National Courts

This article explores debates about the role of Islamic law (sharīʿa) in the early development of the native courts in Egypt, established in 1883. Current literature focuses on the impact of European influence, arguing that the native courts and the codes they implemented broke away from a past dominated by Islamic law, sidelined pre-modern juristic (fiqh) understandings, and reflected an importation of European norms in service of a growing modern state. Using periodicals published within the first ten years following the establishment of the native courts, this article argues that, for both supporters and detractors, the question was not whether the sharīʿa was being implemented but how it should be understood and utilized. Ideas informed by external influences, such as the rule of law and the creation of an independent judiciary, were significant and helped to shape the development and operation of the native courts. However, these ideas were viewed by observers through a broader conceptualization of the sharīʿa that included the work of the political authority to achieve a central goal: to nationalize the sharīʿa and establish justice in a rapidly changing social and legal environment.

“The Native Court Way”

Abstract This article examines surviving native court records from 1905–1957 in Abeokuta, Southwest Nigeria, to argue that what constituted marriage, marital rights, and sexual access to wives was changing readily in this period of socioeconomic and political change. In this period, Britain established the native court system, stressing African and British judges, to apply rigid ideas of native law and customs concerning marriage. Men and women—husbands, wives, lovers, fathers, uncles, aunties, brothers, sisters, and in-laws—approached the native courts to negotiate conflict over marriage, divorce, seduction, adultery, and child custody. Rather than administering rigid legal judgements of what constituted legitimate marriage, judgements rendered by these courts provided maneuverability, specifically for women to negotiate and contest marital status and relations.

Revisiting Gender and Marriage: Runaway Wives, Native Law and Custom, and the Native Courts in Colonial Abeokuta, Southwestern Nigeria

This study focuses on women and colonial courts in Abeokuta, southwestern Nigeria, in the early decades of the twentieth century. It examines the effects of colonial intervention on women and marriage. Examining case volumes of the Ake, Abeokuta, Native Court from 1905 to 1957, the study demonstrates that unique circumstances of the twentieth century—colonial intervention and the establishment of the native courts—led to the increase of divorce rate accelerated by the phenomenon of wives leaving matrimonial homes, establishing new unions of their choice, and approaching the court to end earlier unions and legalize the new ones. The study argues that, despite the negative connotations that might be associated with wives leaving matrimonial homes and requesting divorce in colonial courts, these women made use of the new circumstances to redefine marriage, inserting modifications reflective of women’s choices and preferences, as evidenced through their claims collected from the court records.

UNSUR POLITIK DAN PENTADBIRAN DALAM PESTA ‘MAGAHAU’ ETNIK MOMOGUN RUNGUS DI SABAH, MALAYSIA

Magahau is the main festival of the Momogun Rungus ethnic group in Sabah and is celebrated every year or every few years. This festival began to be celebrated on a large scale in 2009 as an extension of the Matunggong Customary Law Convention (2009), organised by the Matunggong Subdistrict Native Court which stipulates that the festival be held every year or every few years. The convention attended by practitioners of Rungus Customary Law from all over Kudat District, Matunggong Sub-District, Kota Marudu District and Pitas District which are districts with large Rungus population who aware that in the past, Magahau was usually celebrated by several villages or at least one village or several families. This made the delegates to decide that Magahau is a festival that is considered significance by the Momogun Rungus ethnic group. As a main festival, Magahau is also considered as a festival that highlights political and administrative elements that are not appreciated by various parties. Accordingly, based on the use of qualitative methods for the collection of related information, this paper highlights the political and administrative elements in the Magahau festival held annually by the Momogun Rungus ethnic group in Sabah.

Documenting Interpersonal Conflict in Senegal during the First Quarter the Twentieth Century

In the early twentieth century, in countries of former French West Africa, new adjudicatory bodies, the so-called “native courts,” were created and managed by the French colonial administration to handle disputes between native people. The monitoring of court activity generated high-frequency litigation data that provide a unique opportunity to document interpersonal conflict in a context of colonial rule undergoing rapid transformation. This paper has three objectives: (i) to describe the institutional framework that gave rise to the case registers, “Les États Récapitulatifs,” upon which this research is based; (ii) to detail our method for compiling time series of cases adjudicated by the native courts of Senegal; (iii) to describe certain time trends in the dynamics of cases adjudicated by these courts. We conclude by discussing how this database could be used to better understand the economic and political roots of interpersonal conflict.

PENGAMALAN SOGIT DI MAHKAMAH ANAK NEGERI DAN SOGIT KAMPUNG: SATU KAJIAN PERBANDINGAN

The Kadazandusun community in Sabah is known as an ethnic group that has various unique cultural forms and is still practiced to this day, including the practice of sogit. In general, sogit is understood as customary compensation, customary damages, customary fines, and customary punishments imposed on any ‘native’ who commits customary offenses. Today, sogit can be seen from two perspectives. First, from the perspective of formal sogit practice in Native Courts through the Native Court Customary Law Rules (1995). Second, the practice of sogit among the village community consists of Dusun people in Ranau district. Thus, the objective of this study is to see the element of comparison between the practice of sogit in the Native Court with the practice of sogit among the Dusun community at the village level. To achieve this goal, this study is qualitative and uses data collection methods through interviews, observations, and document analysis. The results of the study found that several elements are suitable to be highlighted to see the comparison between the two practices of sogit—such as sources of legal procurement, interpretation, function, method, and executor.

‘They Gave Me Nothing’: Marriage, Slavery and Divorce in Twentieth-Century Abeokuta

ABSTRACT During the early twentieth century, several hundred women in colonial Abeokuta initiated divorce proceedings against their husbands, who were also frequently their masters. The legal records associated with their cases offer important clues about how women – both freeborn and slave – contested the terms of their marriages using the colonial courts. This article examines how and why these women used new interpretations of marriage, which were introduced by European Christian missionaries and the British colonial administrators in order to challenge established traditions. It reveals how colonial native courts approached indigenous norms surrounding marriage and slavery: colonial interventions gave freeborn women a measure of agency within marriage which was also somewhat unexpectedly extended to slave wives. Through an exploration of court judgements, this article demonstrates the effects of colonial intervention on marriage and slavery and the role of the colonial courts in local matrimonial disputes and practices and investigates how they empowered enslaved wives.

Dynasty, Politics, Piety and the Consort’s Library: Queen Charlotte Amalie of Denmark (1650–1714) and her Calvinist Inheritance

Confessional difference in dynastic marriages was fraught with problems for all concerned, as was the case with Queen Charlotte Amalie of Hessen-Kassel (1650–1714), Denmark’s first non-Lutheran consort in post-Reformation history and the founder of Copenhagen’s Reformed Church. Taking the example of the Danish queen, this essay presents the broader context of her inheritance of her mother’s books in 1683 and reflects on the role of personal book collections for the early modern consort. Book ownership has not figured prominently enough in studies of material culture at court and cultural exchange, but as a bride set out from her native court, the books she took with her or later received from her natal court were meant to strengthen her position in her new surroundings just as much as the more precious items she took with her. Her books could be an expression of confessional allegiance and an instrument of dynastic identity retention. Examples of how in this particular case books were inherited through several generations of female owners of the Reformed faith highlights the importance of examining the role of women’s networks in the creation and maintenance of dynastic and confessional memory.

Change and Resistance: A Reflection on the Aba Women Uprising in Colonial Nigeria

This study revisits the resistance of women against the British colonial government’s introduction of its taxation system in eastern Nigeria and focuses on the problematized relationship between culture and history. Although historical studies have been carried out to explain why women resisted change and why men were largely absent from the struggle against in the colony of eastern Nigeria, new studies on the subject have provided vital information on how women responded to the colonial imposition of tax and how cultural dynamics spurred the women’s revolts. Data adopted for the study were taken from primary sources consisting of archival records, participant’ observers’ reports, as well as information on secondary sources such as journal articles and books, in order to explain the ethnography and culture of the Igbo society. This paper argues that women mainly resisted colonial tax imposition without strong involvement of the men, and expressed their anger against the Native Court and Warrant Chief systems, which were, exclusively, male dominated. It concludes that women were not passive victims of colonial intimidation and oppression, but were vanguards of resistance against a hostile and brutal colonial regime in Eastern Nigeria.

Native Law as One of The Sources of Law in Sabah Legal System

Native law is one of the sources of law recognised by the Federal Constitution in Malaysia. In Sabah1, one of the states in East Malaysia, native law received its formal recognition from the British government in 1888. It continues to exist until today, governing matters involving the natives of Sabah. The law is administered by the native court, presided by the native chiefs. This paper discusses the evolution of native law in the State of Sabah since colonial times and analyses the development of customary law as one of the sources of law in the Malaysian legal system. The analysis includes a discussion on the validity of customs and the position of native law in the Sabah legal system.

NATIVE COURT IN KUDAT AND MATUNGGONG, SABAH: CHALLENGES TO ITS GOVERNANCE AND STRUCTURAL ECOSYSTEM

The Sabah Native Court is a legal institution created specifically to address the application of customary law among the ethnics or indigenous peoples of Sabah. Sabah Native Court is a legal institution established by a special act known as the Native Courts Enactment 1992 amendment 1995. The purpose of this study was to identify the challenges to the governance and structural ecosystem of native courts in selected districts, specifically Kudat District and Matunggong Sub-district. This study uses qualitative methods through in-depth interviews with district heads in these two native court. Among the study's interesting findings is the hierarchy of the organisational structure of the native court institution found in both study locations, which has differences in the number of staff appointments either at the decision-making level for district head or among native court implementers such as native chiefs and deputy native chiefs. Furthermore, the two study locations have different day-to-day governance and assignment for every entity within the native court. Questions about the benefits and drawbacks of challenges to both governance and the structural ecosystem of the native courts in both study locations were also addressed in the discussion section. Due to its importance in monitoring these challenges, this study will examine how well the native courts can resolve the concerns of each ethnic in the state compared to other judicial institutions such as the Syariah Court and Civil Court.

THE CHALLENGES IN ENFORCING POST DIVORCE ORDERS OF NATIVE COURTS IN EAST MALAYSIA

The native court in Malaysia comprises of Mahkamah Anak Negeri Sabah and Mahkamah Bumiputera Sarawak. The existence of this court is recognised by the Malaysian Government and they are mentioned in the Federal Constitution of Malaysia. Although these courts are given power and authority in dealing with the personal law of natives in each state, there are challenges in enforcing post-divorce orders made by these courts. This article is significant since there is a dearth of study on this topic. The main objective of this article is to examine the enforcement of post-divorce orders of native courts within East Malaysia. It will also explore the problems and challenges of divorcees in enforcing divorce orders and provide recommendations to improve the existing system. This article adopts library-based and qualitative research method which consists of group discussions and interviews with the village headman (ketua kampung), headman (penghulu), community leader, native courts’ judges, native court of appeal’s judge, registrar of native court and several divorcees. The result of this research identified four challenges vis-a-vis: the capability to find the husband upon the issuance of the divorce order; second, husband’s default payment of maintenance; lack of manpower in enforcing the order and lastly, husband’s conversion to Islam. Thereafter, this article suggests that the government could provide assistance by empowering court bailiffs or enforcement bodies, increasing funding and to designate a special department for enforcement of divorce orders

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

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

Import Control under Regionalism in Colonial Nigeria, 1954-1960

The colonization of Nigeria by the British opened a new vista in the history of the country as various ethnic groups came under the British system of administration. Parts of the colonial administrative structures included, native courts, native authorities, native treasuries and protectorates. Historians, political scientists, sociologists, economists and scholars of various disciplines have through their works, interrogated Nigeria’s colonial past. Indirect rule system, colonial infrastructure, the rise of nationalism, currency circulation, colonial system of banking, colonial system of education and exploitation of Nigeria’s resources are typical examples of Nigeria’s colonial experience. Similarly, scholars have made attempts at interrogating various aspects of the country’s colonial history. These include, colonial agricultural policies, colonial export control policies, marketing boards, trade restrictions, politics of decolonization, politics of transfer of power, constitutional developments, regionalism, nationalist movements, colonial tariff system and issues that deal with Nigeria’s economic development in the colonial period. These intellectual efforts have not beamed their searchlight on how import control in an era of regionalism was used as one of the strategies of decolonization before the country’s independence. Thus, the interrogation of a history of import control as an integral part of decolonization seems to have been neglected. It is against this backdrop that this paper interrogated import control as colonial economic policy which aided the entrenchment of regionalism in Nigeria. The paper in its conclusion argued that import control under regionalism was one of the strategies used by the colonial government in the devolution of some of its economic powers to the regions through constitutional framework.Key Words: Nigeria, Colonialism, Regionalism, Import Control

Voices from the dead: the uneasy case of indigenous cultural expression

PurposeTraditional cultural expression (TCE) includes music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives or many other artistic or cultural expressions [World Intellectual Property Office (WIPO)]. To constitute TCEs, the expressions must form part of the identity and heritage of a traditional or indigenous community and need to be passed down from generation to generation (Kuprecht, 2014). This paper aims to analyse the protection of TCE in Malaysia by focusing on the Mah Meri tribe. This paper examines copyright over TCE, recordation as a means of preserving a dying tradition and customary practices and native law.Design/methodology/approachInformation is drawn from personal discussions with the weavers and carvers of the Mah Meri tribe, and a focus group discussion with subject matter experts. As a way of comparison, a personal visit has been made to Sarawak Biodiversity Centre, Sarawak Native Courts, the Dayak Iban Association and Dayak Bidayuh Association.FindingsThe research found that copyright law has no specific provision for the protection of TCEs. Customary practices of the indigenous people and the native law of Sarawak have limited effect outside their traditional domain. Recordation and documentation of TCEs are the prime initiatives, but the documents or the recordings do not carry any legal status.Research limitations/implicationsThe research is limited only to the Mah Meri tribe with a comparison drawn to the Dayak Iban and Dayak Bidayuh tribe.Practical implicationsThe research examines the practical implications of copyright and recording and documentation of cultural expression in Malaysia.Social implicationsThe research sets to unearth and highlight the ideation process in a tribal setting and how that clashes with the formal creation setting in a modern intellectual property system.Originality/valueThis paper was presented at the IAITL Congress 2013. It also appeared in the Conference Proceedings edited by Slyvia Kieerkgard, but it has not been published in any journals.

Proliferation of native courts in Wum District, Southern Cameroons, 1921 – 1939

The paper discusses the proliferation of native courts in Wum District from 1921 to 1939. Using mostly archival materials from the Buea National Archives and the thematic and chronological approaches in analysing data, it argues that ethnic differences, communication difficulties and the feeling of superiority by some chiefs over their counterparts brought disunity and inefficiency and the management of the affairs of the courts became derisory. This therefore necessitated the creation of more institutions in order to minimise these problems. In spite of this move, arrogance, pride and attempts at dominating some court members especially those hosting the institutions as well as injustices perpetuated by some judges on litigants, led to requests for the creation of new courts by clans as the only means through which these vices would be avoided. It was because of these factors and requests from the people of Wum District that the Weh native court that served the entire District was dissolved and those of Wum, Fungom and Bum created in 1928. The creation of these courts never satisfactorily took care of the problems hitherto experienced in the Weh court as the Wum court was subsequently split into two, Mukuru and Aghem. The Fungom court also witnessed structural changes as its headquarters was moved from Fungom village to Zhoa. This Court in Zhoa became a court of Appeal for the Fungom area and four minor courts were further created to serve this administrative unit.

The East India Company’s Conquest of Assam, India, and “Community” Justice:Panchayats/Melsin Translation

AbstractThe East India Company troops fighting the Burmese aggression on the frontier of Bengal in Eastern India “freed” upper and lower Assam territories in 1825. David Scott of the Bengal Service was appointed to oversee the establishment of civil and revenue administration in these frontier territories. He established a hierarchical multiple structure of “native courts”—calledpanchayats—as the chief medium of civil and criminal justice. This was ostensibly continuing a traditional Assamese form of dispute resolution—themel; however, the British criminal jury as well as the expert assessor model animated the system. After his death in 1831, the system was brought in line with the rest of the Bengal administration based on the British court system. His experiment, paralleled in many other newly conquered and ceded districts from the Madras territories to Central India, suggests the use of this mode in post-conquest situations by British administrators in South Asia.

Battle lines in the Hot Lakes District, New Zealand, c.1900: tourism development and the contested nature of place

In the nineteenth century, European visitors flocked to see the silica formations known as the Pink and White Terraces in the central North Island of New Zealand. The history of this visitation illustrates the contested nature of tourism development in a colonial context. Tribal warfare for control over the natural resources was a feature in the 1850s with Tūhourangi emerging victorious. Increasing visitation in the 1870s and 1880s shifted the battlefield into an economic sphere with indigenous entrepreneurship and agency a key factor of development. Tūhourangi met this challenge and controlled most of the commerce and kept their land-holdings intact. The Native Land Court became a new battleground for Tūhourangi as they successfully argued their case and were recognised as the legal owners of the Terraces. Despite acknowledgment of indigenous ownership, Tūhourangi would have had to engage in ongoing battles in order to keep their lands. The eruption of Mount Tarawera and the subsequent damage it caused, including the destruction of the Pink and White Terraces, stifled tourist activity in the region and left Tūhourangi virtually landless. The Crown were then able to purchase vast tracts of land without competition thus controlling any future development.

The lore of the judges: Native Land Court judges’ interpretations of Māori custom law

The essay explores what I call the 'lore of the judges': the collective wisdom of the Native Land Court judges on Maori custom law, especially in relation to land. It is led by a comment by F.D. Fenton, the first Chief Judge, in his Orakei judgment, that the judges' decisions should emulate those of English Common Law judges, and create a body of precedents recorded in 'Year Books' (or Minute Books). The paper examines how the judges' interpretations and remoulding of Maori custom were eventually incorporated in New Zealand common law. It concludes by asking whether the judge-made law could be considered a Maori common law.

Constructing Colonial Legality in Russian Central Asia: On Guardianship

AbstractThe history of Islamic law in Russian Central Asia defies many of the categorizations offered by both global and Russian imperial history. Recent studies of law in the age of colonialism have concluded that the attainment of legal hegemony in the colonies was consequent upon the initiative of indigenes that strategically manipulated jurisdictions; as colonial subjects increasingly involved the state in their private conflicts, they effectively pushed their masters to consolidate the institutional arrangements through which the state dispensed justice. Historians of the Russian Empire have reached a diametrically different conclusion: under tsarist rule, they argue, Muslims continued to access the services of the “native courts,” which remained mostly untouched following Russia's southeastward expansion. As the empire promoted a policy of differentiated jurisprudence, Russians effectively safeguarded the integrity of Islamic law. I argue that both of the aforementioned approaches are confined to the level of institutional history, and thus fail to consider that the creation of colonial hegemony rested on ways in which colonial subjects understood law and viewed themselves as legal subjects. I show that Russians, from the outset of their rule in Central Asia, initiated Muslims into colonial forms of legality by overcoming the jurisdictional separation they had themselves put in place. In allowing the local population to file their grievances with the military bureaucracy, the Russians effectively pushed Central Asians to reify colonial notions of justice, and thereby distance themselves from the tradition of Islamic legal practices.