Still relevant today: Both Sikayun (left) and Majinbon agree that the Native Court plays a crucial role in resolving disputes, easing the pressure on civil courts.
Still relevant today: Both Sikayun (left) and Majinbon agree that the Native Court plays a crucial role in resolving disputes, easing the pressure on civil courts.
KOTA KINABALU: Sabah’s Native Court, which fines offenders with “sogit” (customary penalties) such as buffaloes and chickens, is unique and perhaps even amusing to those outside of the state.
But for activists dealing with child marriage, the Native Court system adds another layer of complexity in Sabah where almost one quarter (23%) of women would be married before they turn 18.
Based on statistics from a 2023 report, funded by the United Nations Population Fund, child marriage rates had generally gone down but it remained prevalent among rural women in Sabah, where 28% of them would be married before 18.
Cases of child marriage involving natives are handled by the Native Court, whose concept of sogit can hinder the enforcement of laws against the practice because it often focuses on maintaining social harmony within communities by offering compensation or restitution to resolve disputes, say lawyers and activists.
In cases of child marriage, families may resort to sogit as a traditional solution rather than seeking legal action.
“Under some indigenous customs, a girl can be considered of marriageable age once she reaches puberty, even if she is below 13, 16, or 18,” said Sabah Law Society’s Native Customary Laws, Customs and Culture Sub-Committee chairman Datuk John Sikayun.
This is unlike the Penal Code, which outlines statutory rape as sexual intercourse with a minor under the age of 16 regardless of consent, he pointed out.
The lacuna in native customary law (adat) sometimes leads to cases where underage rape victims are married off to their perpetrators.
It has caused concern among lawyers who, despite their passion for customs and traditions, have sought to reform the native legal framework.
“As we move forward, it is important to consider whether customary practices such as child marriage should continue to be permitted,” said Sikayun.
Deputy Chief Minister II Datuk Seri Dr Joachim Gunsalam previously confirmed that a Cabinet paper addressing child marriage was ready for deliberation.
He said the state government planned to enact reforms to tackle this issue while considering the cultural and economic factors influencing these practices.
Operating under the Native Courts Enactment 1992, these courts address personal law and native customary disputes, focusing on reconciliation through compensation rituals like sogit.
Isaiah Majinbon, the Sabah Law Society’s Young Advocates Sub-Committee deputy chairman, said: “In the native beliefs system, the ideal relationship between humans and the spiritual realm is one of harmony, referred to as ‘osogit’ (cool) or balanced.
“However, human misdeeds, such as intentionally harming the environment, damaging property of others, threatening them, or committing offences like adultery or incestuous acts between blood relations, shatter this balance, plunging the community into ‘ahasu’ (hot) or unbalanced state.”
The native communities believe that violating customs disrupts the balance, potentially unleashing bad omens upon them which, in severe cases, could result in droughts, floods, epidemics and other catastrophes.
To restore balance and prevent further harm, atonement is offered through rituals involving blood sacrifices of livestock (sogit), performed to “cool” the “heat” caused by the transgression.
“The offering of sogit is deeply rooted in the native beliefs system. Far from being a symbol of backwardness, sogit represents a system of restorative justice – one that acknowledges the interconnectedness of the physical and spiritual worlds and seeks to restore harmony and mend the fabric of community life,” Majinbon said.
Common forms of sogit include livestock such as buffaloes, pigs and chickens, or other commodities of equivalent value.
In some cases, sogit is shared during communal karamaian (gatherings) to mend ties.
However, Majinbon stressed that sogit is not always about sacrificial penalties.
There are other forms of sogit that involve reconciliatory actions, as the true essence of native customary laws and culture is centred on restoring harmony, fostering peace and healing within the community.
“For example, if an elder has been disrespected, the offender may offer salt to the elder. This form of sogit serves as a powerful reminder to the younger generation that elders are deserving of profound respect for their insights into life.
“It affirms their deep wisdom and the wealth of knowledge they have accumulated throughout their lives,” said Majinbon, citing the adage that the elders have eaten more salt (than rice) compared to the younger folk.
However, there have been calls for reforms, driven by native communities and advocacy groups.
According to Sikayun, these efforts are focused on modernising the Native Court, promoting inclusivity, ensuring judicial neutrality, and preserving its restorative essence.
He noted that amendments to the Native Court Enactment 1992 are being prepared by a committee commissioned by the state government under the Sabah Native Affairs Council.
The reforms aim to formalise the Native Court of Sabah’s constitution and procedures while maintaining its jurisdiction over customary offences.
Sikayun said the reform proposes a three-tiered system – the Native District Court, Native High Court, and Native Court of Appeal – with exclusive jurisdiction over native customary land rights, estate succession and other matters governed by native laws.
It also aims to introduce clearer guidelines for penalties and preserve traditional practices such as fines paid in livestock, besides alternative monetary penalties.
Both Sikayun and Majinbon agree that the Native Court plays a crucial role in resolving disputes, easing the pressure on civil courts.
Sikayun explained that native land disputes, often involving boundaries and trespassing, are the most common cases, followed by inheritance, matrimonial matters and other customary disputes.
“The Native Court provides native communities with a more accessible and cost-effective alternative to civil courts, which are often time-consuming and expensive.
“For instance, a family inheritance dispute that might take years in civil court can be resolved amicably through mediation in a native court.”
Sikayun said the reform process is nearing completion, with the draft of the Native Court Enactment about 90% ready and set to undergo legislative review, final consultations, and stakeholder feedback.
“We cannot afford to delay these reforms, it is time to get our house in order.”
