A note on native land tenure in Sarawak. (Research Notes).

I am prompted to write this short paper by recently reading two excellent essays by Drs. Appell and Wadley in Volume 28 of the Borneo Research Bulletin. I only wish their work had been available to me twenty years ago when I was grappling with Native Law in Sabah and Sarawak. The short book I published then (Hooker 1980) would have been much better.

In this paper I hope to give a wider context to Appell's and, Wadley's data and, in particular, to discuss the material with respect to the laws of Sarawak. My proposition is that indigenous land tenure cannot be seen in isolation from state law. Each impacts on the other and, at the end of the day, it is the law of the state which will determine the nature of tenure(s) and the rights and obligations which arise under it (or them). Changes within the Iban communities do not take place in isolation. Now, in 1999 (and since the 1970's) there is always an eye on the commercial possibilities for land tenures and a close attention to the vagaries of state policy with respect to market values. To ignore this fact is to live in a fantasy. The land issue is politically sensitive and I have had my own work on native tenure in Sarawak quoted out of context so as to justify various interests and interest groups.

Essentially the issue is the nature and place of native law--here indigenous--in the modem nation state. Indigenous tenures cannot be discussed in isolation. They have to be dealt with in the light of the economic and social transitions which are occurring at an increasing pace. The transitions must be managed. Stasis is no longer an option though the existing laws assume this to be so. And here is the problem. We have to be careful as to what we mean by "law", "native", "adat", and especially "land" and "land rights". These terms are all loaded with history, preconceptions, and contemporary government policy. The definition of "law", with reference to Borneo land tenures, is not without difficulty. Drs. Appell and Wadley refer to the old N.E.I. discussions of adat. The problem with such a reference is that it presupposes a quite different legal system (the N.E.I. adats) (see Hooker 1978) which are not really appropriate for Sarawak. This state (and Sabah) has a quite different history and hence, set of land tenures (Hooker 1980). We have to approach the subject in three ways.

The Definition of "Native"

Native tenures can only be held by "Natives" and hence the definition of the latter is crucial. As with so much else in Sarawak law the original definition came from the Brooke administration which was concerned to establish a distinct and separate system of law for each social and religious group. Sir James Brooke distinguished (a) Malays who were Muslim, (b) the Chinese "race" and (c) the "original inhabitants." This was a rough and ready classification and, while suitable for initial conditions in the Rajahs rule, the increasing complexity of Sarawak society forced the introduction of quite complex regulations. The Court Order of 1870 adopted the simple "indigenous race" class but in succeeding years attempts were made to regulate such contentious issues as interracial marriage, the marriage of "Christian" to "pagan" natives and conversion to Islam. In the latter, the interests of Native heirs were protected by trusts. Adoption of Natives was dealt with by registration from 1878 and provided for the implem entation of adat (Hooker 1980: 16f. These orders persisted, with re-drafting and amendments, until the end of Brooke rule.

The first comprehensive attempt to define "Native" was in 1948 in the Constitution Ordinance of that year (1). However, in relation to land, there were partial definitions which were separate and related solely to land. In 1920 a Native was "a natural born subject of H.H. the Rajah." (2) In 1933 this became "a natural born subject---. Of any race now considered to be indigenous to the State of Sarawak-" (3) This definition was later carried on into the Land Ordinance of 1948. In the later revised version of 1958, as I discuss later below, section 5 (7) on Native reserves leaves it to local customary law to determine whether or not a person is "a member of the native community." In the final analysis, the District Native Court determined the issue and the tests were "conduct" or "mode of life". (4)

This brings us to the Native Courts Ordinance of 1992, again to the provisions relating to rights to hold land (s.20). The factors determining a Native "identity" include public opinion in the community, evidence given by "responsible persons", and the opinion of leaders of the community. In the case of Law Tanggie v Untong ak. Gantang, (5) the plaintiff was the son of a Chinese father and an Iban mother. He bought native title land and transferred it into the name of his mother's brother, the defendant, who held the title as a nominee. The intention was for the plaintiff to acquire Native status. To do this he declared himself Native by Statutory declaration, a status he achieved. He then brought an action for return of the land. The Native Court found that the plaintiff was in fact a Native and the High Court also accepted this. However, the factors for accepting that native status had been achieved were not described in the judgements. The action was decided on those sections of the land code dealing with proof of title. This judgement, therefore, leaves open the judicial definitions of Native.

I turn now to further material on definition. This is the Interpretation Ordinance of 1958. (6) "Natives" are the following:

- Bukitans

- Bisayahs

- Dusuns

- Dayaks (Sea)

- Melanos

- Muruts

- Penans

- Sians

- Dayaks (Land)

- Kadayans

- Kelabits

- Kayans

- Kenyahs (including Sekapans, Kejamans, Lahanans, Punans, Tanjongs and Kanowits

- Lugats

- Lisums

- Malays

- Tagals

- Tabuns

- Ukits

(And any admixture of the above with each other).

This list can be compared with the definition of "Native" in the Federal Constitution of Malaysia, Art. 161A (6a) and (7) which reads as follows:

(6) (a) in relation to Sarawak, a person who is a citizen and either belongs to one of the races specified in clause (7) as indigenous to the State or is of mixed blood deriving exclusively from those races; and

(7) The races to be treated for the purposes of the definition of "natives" in clause (6) as indigenous to Sarawak are the Bukitans, Bisayahs, Dusuns, Sea Dayak, Kadayans, Kelabits, Kayan, Kenyahs (inicuding Sabups and Sipengs), Kajangs (including Sekapans, Kejamans, Lahanans, Punans, Tanjongs and Kanowits), Lugats, Lisums, Malays, Melanos, Muruts, Penans, Sians, Tagals, Tabuns and Ukits.

There are at least two preliminary points arising from these lists. First, the groups named in Art. 161A of the Constitution are specified with reference to an earlier provision (Art. 153 (9A)) which provides for the reservation of quotas in respect to permits and services which are confined to Malays and Natives. The reference, in other words, is political. (7)

Second, and related, just how ethnographically accurate are these lists? Recent data seem to show that there is some question at least as to the appropriateness of the terminology used. Ethnic identity/identification is a notoriously debatable issue particularly given the possibilities of change in response to new economic, political, and social circumstances. The concept is dynamic and subject to change. (8) The legislation and the Constitution, on the other hand, both assume a status which by its nature must be out of touch with the realities of contemporary Sarawak society. I drew attention to this in 1980 (Hooker 1980: 81ff), and nothing has changed since, particularly with respect to property.

Nowhere is this more clearly illustrated than in the case of the "Muslim Native". Both lists above give "Malay" as a Native but the Malays are Muslim. Until recently their affairs were determined by the Undang2 Mahkamah Melayu Sarawak (laws of the Sarawak Malay Court) in which a simplified version of Syariah plus Malay adat was the operative law (see Hooker 1984: Chapter 4). This was a separate jurisdiction from the (non-Muslim) Native Courts, and Native law did not apply. This position has been maintained in the new Islamic laws administration under which all Muslim property matters are determined by Syariah. Native laws do not apply to Muslims. (9)

However while it is relatively easy to state these propositions, actual practice is sometimes more confusing. The fact is that "Native" and "Muslim" can be distinguished. An early judicial decision, (10) for example, found that for a Brunei Malay Muslim who had lived in a Bajau community for over forty years the appropriate law was Syariah. The Syariah was the "social law" of Brunei. Admittedly this was decided in 1953 but a similar result was reached in 1966 which denied Native Court jurisdictions in a mixed Muslim-Native dispute. (11) In these and latter cases (12) matters of succession to property were determined by religious profession. While there might be room for negotiation where one party was "pagan" or Christian, this was not so for Muslims. In the latter case, Islam determined absolutely. This is the present position and it is a reversal of the practice of the Rajah's time but subject to the special use of unused native land- N.14 above. (13)

This brief outline is enough to show that "Native" has a number of definitions and each definition is directed toward some particular purpose. There is a common focus and it is land or rights of access to land or, in political terms, authority to make rules about land occupation, disposal, and exploitation. Variations in state policy explain variation in defination. The legislation is an attempt to state an agenda within which the competing demands of state politics and individual rights can be accommodated. We turn now to the legislation.

The Sarawak Land Code of 1958

This a consolidation of earlier laws (14) but it cannot be read separately from them because pre-1958 judicial decisions remain authoritative or persuasive. However, this is less of a problem than it might seem because much of the 1958 code is the same as the earlier laws. (15)

There is one preliminary point; the substantive technical provisions of the land code are based on the Torrens system of registered title(s). An interest can be "owned" only if it is registered. If there is no registered title then an occupier is at best a licensee. He has no interest which he can charge or transfer. The Code, in other words, does not envisage Native social structures or land use practices. At the same time, it does attempt to impose a title system so that we have an inherent contradiction in Sarawak land law. The comments on the Code which follow should be read with this in mind.

The Code provides for five classes of land in Sarawak. (16) Of these only Native Area land, Native Customary land and Interior Area land are relevant for this essay. Native Customary rights apply to each and the crucial definition of Native Customary land is:

(a) land in which native customary rights, whether communal or otherwise, have been lawfully created prior to the 1st day of January, 1958, and still subsist as such;

(b) land from time to time comprised in a Native Communal Reserve to which section 6 applies; and

(c) Interior Area Land upon which native customary rights have been lawfully created pursuant to a permit under section 10 of the Land Code.

The Code limits customary rights to those lawfully created before 1st January 1958. (17) After that date, no recognition will be given unless new rights are created in terms of the Code. This applies to Native Communal Reserves (S.6) but even here the greatest right an occupier can have is a license. This does not amount to a chargeable interest (i.e. full title).

So far as Interior Area land is concerned, a person who wishes to occupy this class of land must first get a permit from the authorities. (18) Occupation without a permit is unlawful (S.10) and confers no rights under Native custom or any other law.

In short it is now almost impossible to create new Native Customary rights in Sarawak. However, even when created, there are quite severe restrictions on Native Customary rights. For example, the State retains the entire property in all water resources, a Native has merely a right of use (see below on extinguishment or loss of rights). The main point is that all Native rights depend on State authority and approval, and the following is a clear judicial exposition: (19)

In Sarawak a person can be said to 'own' land only if there is a Land Office title subsisting in respect of that land. If there is no such title the land is Crown Land; the occupier is at best a mere licensee; and he has no legal interest which he can either charge or transfer. That is so whether for the purposes of the Land (Classification) Ordinance the land is Native Customary Land. If a person abandons his legitimate occupation of such land he does so at his peril.

Again from a later case: (20)

The right which the plaintiff may have created by his original clearing and cultivation is a restricted one and it can be lost by abandonment.

It must be remembered that a person can be said to own land only if there is a land office title subsisting in the land and if no such title exists the occupier is a mere licensee of Crown Land.

The onus of proof is always on the Native to show that he has lawfully acquired the customary rights which he claims. The Land Code itself says (S.5(6)):

--[re. customary rights] it shall be presumed until the contrary is proved, that State land is free of and not encumbered by [native] rights.

On the other hand, there are some protections but again these are not absolute. The main protection is that only Natives can hold rights in Native Area, Interior Area and Native Customary Lands (section 8). However, there are qualifications to this rule. First, if a non-native has become identified with or subject to any system of customary law he may hold Native land. (21) Second, a non-native may hold Native land under a permit at the discretion of the state. (22)

The corollary to protection of Native rights is extinguishment and loss and the Code treats each of these separately. The first is treated in detail in the Code. (23) The position now is that Native rights may be extinguished by direction of the Minister on payment of compensation or making other land (already subject to Native rights) available. Claims for compensation must be submitted within sixty days or the claim is lost. A direction of the Minister cannot be questioned or challenged. (24) The best that a claimant can get is arbitration as to terms. The only real question is the method of assessment of compensation. As to this, the High Court in Kuching (25) has interpreted the Code (26) as saying: (a) that the potential commercial value of the land should not be considered, (b) compensation is for extinguishment only, defined as the value for loss of use, buildings and reasonable removal expenses. The bona fide selling price of neighboring property may or may not be a relevant consideration.

Turning now to loss of Native customary rights. The Code and the Courts have determined the two methods of loss. First, non-use or abandonment of customary land. There are a number of cases (27) all of which come to the same conclusion--that non-use for a considerable length of time is sufficient to dispose of Native rights. Periods range from 20-30 years. In addition, allowing others to use the land amounts to abandonment. Second, if the holder of Native rights moves out of his longhouse or goes to another district under the jurisdiction of another Penghulu (or Tuai Rumah) he loses his rights. This is an old rule both of adat (28) and of the Brookes. (29) However, the rule can be somewhat more complex in practice. For example, if an indvidual holder of rights in "communal" land removes himself from a longhouse he may still retain his rights so long as he remains within "reasonable farming distance." (30)

Anyone having the slightest acquaintance with Borneo land tenures will find these propositions misleading if not actively distorting (see Appell 1997, Wadley 1997). The distance between ethnographic reality and judicial reality is indeed great, and is the subject of the following section.

Native Law and Ethnographic Data

This is a difficult question and it is one which affects the status and rights of all indigenous peoples. No satisfactory answer has yet been given. The issue is more broadly a part of the contemporary international debate on indigenous populations. The UN Working Group on Indigenous Populations/Peoples defines such in the following terms: (31)

Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples in accordance with their own cultural patterns, social institutions and legal systems. (32)

This is very general and it does not apply perfectly to all indigenous groups, but it is the best we have. (33) The important elements for this paper are the phrases "...to preserve, develop and transmit to future generations their ancestral territories... in accordance with their own cultural patterns, social institutions and legal systems". These phrases bring us directly to the data brought forward by Appell and Wadley.

How can the ethnography be accommodated within the Native laws of Sarawak; indeed, is it even possible? The law as it stands does possibly provide two avenues by which some accommodation can be attempted.

The Native Courts Ordinance (1992)

This ordinance replaces the earlier (1955) one of the same name and has also a new set of Native Court Rules (1993). Administratively it is much more elaborate than its predecessor. Its key function so far as we are concerned is that it allows for the preservation of Native customs while at the same time recognizing that change in land use and tenure systems is inevitably occurring. "Change" can be as obvious and momentous as state policy, large scale logging, plantation agriculture, and so on. It can also include what Appell calls the "erosion of the village land base". As he says (Appell 1997: 91),

Under situations of social change and the growth of wealth in cities, there is an erosion of the village land base as the cash-rich city dwellers buy land from the cash-poor farmers. This results in the creation of a landless peasantry, and the flood to the cities of those without the skills, training, or education to move into regular urban employment. And this creates social problems.

Does the traditional system of land tenure in Borneo suggest to planners an approach, a means whereby these social dislocations can be minimized and social stability achieved in the rural areas? Can a system be devised whereby the strengths of a stable rural population can be maintained?

The 1992 Native Court Ordinance does provide some limited mechanism, which might be used to regulate social change. This is found in section 20 which gives the Native Court a "special jurisdiction" to determine whether an individual is or is not subject to a Native system of personal law. The section clearly allows for the possibility of an individual to enter or leave a personal law jurisdiction. The tests are: (a) public opinion in the community; (b) the testimony of responsible persons in the community; (c) the opinion of assessors appointed by the Native court from within the community. A decision once made is binding. This section is specifically directed toward and confined to rights to hold land under section 9 of the Land Code. Adherence to Christianity is no barrier to the exercise of the jurisdiction. However, a person who wishes to claim land rights in a "Native Islamic community" must be a Muslim. The court may accept or reject the evidence put forward under (a)-(c). These provisions repeat the su bstance of the former law and the earlier judicial decisions on "way of life" and so on will apply.

The Ordinance is supplemented by the Native Courts Rules of 1993 (34) which deals with procedure and which must be read with the principal Ordinance. It has a number of interesting provisions. For example, professional advocates are excluded from a Headman's Court and a Chiefs Court, though the court may allow any other person (an anthropologist?) to appear. Again, for the "speedy dispatch of business" there are wide powers vested in the Yang di-Pertun Negeri to appoint judges at various levels but they must be "Natives of Sarawak". The Native Court of Appeal has the same powers as the (Borneo) High Court. Penalties may be paid in cash or kind and compensation may also be in kind. The Native Court can decide the manner in which expert evidence can be given (s.7(1)(v)). This is an important provision because it leaves the issue of evidence open ended. Further on evidence, the provisions of the Evidence Act of 1950 do not apply. This is also important because it allows the production of evidence by e.g. anthrop ologists without complex arguments as to its admissibility. Proceedings may be in Malay, a native language, or English. The definition of an assessor, a key role in Native Court proceedings, is in section 34(2-4) as follows:

(2) The District Officers shall with the approval of their respective Residents and in consultation with the Chiefs and Headmen in their respective districts, prepare from time to time a list of persons who are qualified to serve as assessors in their respective districts.

(3) Every person of or above the age of twenty-one, resident within the State being of sound mind and not afflicted with deafness, blindness or other infirmity incapacitating him from such duties and who in the opinion of the District Officer is versed in the native system of personal law of any native community shall be qualified to serve as an assessor.

(4) The list shall set out the name, age, place of residence, standard of education, occupation, race, community, dialect spoken, the native system and personal law followed or applicable to him and the native law or custom which he is conversant.

A second piece of legislation, potentially of greater importance is the Native Customs (Declaration) Ordinance of 1996. The preamble explains its purpose:

WHEREAS certain customs of the several native races of Sarawak have always constituted a part of the laws of Sarawak:

AND WHEREAS some of such customs have from time to time been compiled and published and such codes of native customs have been recognised by the courts as the customary law of the native races concerned: (35)

AND WHEREAS it is expedient that express statutory provisions should be made for regulating the codification of such native customs and for the publication of authorised version of any native customary laws that have been so codified:

This Ordinance repeals the earlier Native Customary Laws Ordinance of 1958 and quite severely controls the material that may be presented in the Native Court. Whether or not there is room for ethnographic data or the ethnographic "truth" has now become debatable.

Who may write the Code? The answer is the Majlis Adat Istiadat Sarawak. (36) The code is then presented to the Majlis Mesyuarat Kerajaan Negeri for approval upon which it becomes law. The Majlis Adat Istiadat Sarawak acts "in consultation with the Chiefs and Headmen". The Code(s) which it drafts may apply to one or more Native races or to any part of a Native race. The Code defines offences civil and criminal, and fixes compensation and fines. It provides also whether the Native or English language version is to be the authoritative one. It may, in consultation, alter provisions which are absolute or mistaken. If any Code provision is repugnant to or inconsistent with the laws of Sarawak, the latter prevail. The two sections, 7 and 8 which most closely concern this essay say, in paraphrase: (a) Codes are conclusive and may not be questioned in any court, (b) a failure to consult with one or more Headmen does not invalidate a Code and (c) the Majlis Adat Istiadat is authorized to provide "guidance on how a nat ive custom is to be observed or practised by any of the Native races..."

Taken together, the provisions of the Ordinance give the Majlis a complete power to define what Native law is and how it should be implemented. Change to any part of a Native Code would have to go through the Majlis and then through the Sarawak legislative assembly.

This brings us to the final piece of material which has a bearing on Native tenures-- this is the formal Code of Native law. These are not a new feature in Sarawak law; the best known earlier examples are the Codes compiled by A.J.N. Richards in the 1950's (see Hooker 1980: 46ff). The characteristic of a Code is that it is certain and specific. It is designed for the bureaucracy and the court both of which require very specific rules. These comments apply very well to the Adat Iban (1993) which is the Code I have chosen here and the following passage from its "General Explanation" (1993: iii) illustrates what I have just said.

In 1986, seminars were held at the various main towns in Sarawak with the aim of obtaining a consensus of opinion among the Iban community pertaining to the proposed codification exercise. Concepts of the Iban customary laws were identified and translated into correct terminologies not only acceptable to the Iban throughout Sarawak but suitable for administrative and legislative purposes (my emphasis). Many of the provisions in the existing Tusun Tunggu have been rewritten and recast to ensure that established adats omitted in the past were included. Some of the variations found among the various riverine groups were excluded, while the core or commonly practised adat were included in the Adat Iban. The impact of legislation and judicial decision on the customary laws had been thoroughly examined and discussed by all the Iban elders.

Notice the use of the words "seminar", "consensus of opinion", "concepts", "recast", "core", "impact of legislation", as well as the passage emphasised. This is a Code "of law" and the structure of the text bears this out. Thus, the "General Explanation" makes detailed reference to the legislation (above) and discusses "authorised language" of the text in "the native tongue of the Iban" takes precedence over the English translation, though both are authoritative. The text is in eight chapters which are set out in exactly the same way as any other Ordinance passed by the Sarawak legislature. This last point is crucial and has three aspects which relate to incidents arising out of tenure. While it is true that the Majlis has no authority over land tenure as such, its control of the process of formulating Codes and defining obligations in Native Law cannot be separated from tenure. The Codes of Native Law assume a tenure from which individual obligations flow. Whether these obligations and the state tenures are compatible is a matter for ethnographic fact to determine. The brief outline of Adat Iban which now follows should be read with these comments in mind.

The contents:

Chapter 1, "Definitions" has two interesting entries for both the state administration and the anthropologist. They are as follows:

"Genselan" means a kind of ritual propitiation provided by the offender for a breach or infringement of a custom or taboo. In other words, it is a ritual offering to appease gods for any disturbances caused and to restore harmonious relations among members of the community.

"Tunggu" means a form of restitution. Restitution covers two important ingredients of the term "tunggu": first, it covers the idea of providing a settlement between individuals; second it covers the idea of appeasement, atonement or restoration of the physical and spiritual well-being of the community. There is no element of punishment.

In terms of settlement, the offender shall provide "tunggu" in the form of "mungkul", and in terms of appeasement, atonement or restoration, the offender shall provide "genselan", (plus others). I leave it to those qualified in Iban ethnography to assess the appropriateness of these definitions.

Chapter 2, "Customs Relating to House Construction, Moving to a New House, Moving or Migrating to New Area and Taboos". This is a long chapter (sections 2-73) dealing with the building of a longhouse in all its details, damage to the building, rules about occupation, various restrictions, and leaving the building. Tunggu and genselan for breach of the rules are set out.

Chapter 3, "Infringement of Farming Rites and Miscellaneous Prohibitions--". This is also a long chapter (sections 74-131) but those of interest from a tenure point of view are the first two thirds or so. They are not concerned with rights to tenure but with "taboos" in respect of land. These include disturbing an omen rod, farming where a person has found a charm, quarrelling while cutting a tree, chewing betel, disturbing sacred plants including padi, carrying dead bodies or uncovered animal carcasses across a farm and many others of a like nature. On the non-ritual side, there are penalties for theft and damage to crops and trees.

Chapter 4, "Offences Relating to Matrimonial or Sexual Matters". This chapter (sections 132-181) deals with unlawful sex, marriage, divorce, and maintenance. The only interesting provisions for this paper is in section 150 which provides that an Iban woman who marries a "man of another race not in accordance with Iban custom" loses all communal rights. She retains rights only in her parent's property.

Chapter 5, "Distribution of Property Following a Divorce and Lanting" (sections 182-186). Distribution is in the control of the Tuai Rumah. Property is defined in English law terms, i.e., real and personal. The main principle is that acquired property or income derived from its development is to be distributed equally among members of the "bilek- family". There is one query here; whether the English law classes "real" and "personal" can sensibly apply to the Iban. These classes are forms of action developed in the common law over several centuries and are not in any way appropriate to Iban adat. Even if one makes this crude equation: "real" = land and "personal" = everything else, difficulties remain, e.g. in trusts for minors. This terminology is going to cause expensive litigation in the future. This chapter, however, does go on to deal in detail with "acquired" as distinct from "inherited" property and these classes seem to me to be much more sensible in Iban social life.

Chapter 6, "Death and Burials", and Chapter 7, "Adoption", are short and have no relevance to Iban tenures or at the official legal level. Chapter 8, "Miscellaneous", has only one section (198) which leaves open the possibility of a custom not included in this text being recognized.

Jurisdiction:

While the contents of the Code are as I have just described them, they are dealt with at various levels of the judicial hierarchy. The jurisdictions are:

(a) Tuai Rumah

(b) Chief's Court

(c) District Native Court

These are all authorities defined in the Native Courts Ordinance of 1992 and all are inferior courts. The reason for my listing out what parts of the Code come under which jurisdiction is to indicate relative importance from the State's point of view.

Tuai Rumah; the court with the most limited jurisdiction in terms of fines. Almost all of Chapters 2, 3, and 4. Jurisdiction is confined to building, and living in, a longhouse and ritual offences.

Chiefs Court; the next court with more extensive jurisdiction. This includes offences related to moving house or migrating to a new area (Chapter 2), offences against public order (e.g., telling lies, transporting dried heads), setting of illegal traps, marriage and divorce, and sexual offences, death, burial, and adoption.

District Native Court; the superior jurisdiction in the Iban Code. This court is mentioned only once in sections 128-131. Section 128 is on arson, obviously a criminal offence; sections 129-131 are on "unnatural sex", i.e. same person sex. These are also a matter for the criminal courts.

Precedents for the Code

The 1993 Code is not new, nor is it original. Most of its provisions are taken from the earlier Tusun Tunggu and the Codes drafted by A.J.N. Richards. The 1993 Code, in fact, gives the source of each provision in the form: "TT Iban Bagi--" or "DAL Richards Bagi--". These sources comprise well over 90 percent of the text. New provisions, of which there are very few are justified in the formula: "Established custom not Entered in TT Iban or DAL Richards". In short, we have a continuity with previous practice. In this, it is in line with legislation.

Concluding Remarks

I hope that this brief outline of the formal structure of Native law in Sarawak will be of use to anthropologists. The real job is to get ethnography recognized in the formal laws or, more specifically, in the application of the formal laws. This is not easy to do because of the constraints which the formal system imposes on evidence which is not "legal" evidence. Law is a self contained system with its own referents. The relation of "fact" to a "rule of law" is governed by the rules of Evidence which is itself a part of the legal system. Fact, therefore, is what the legal system says is admissible or not in proceedings. While the 1993 Code allows for the admission of evidence which a non-native Court would reject, the standard rules of Evidence can still apply. The extent of this application is unclear.

In such an important matter as land tenures I believe ethnographic data to be crucial. If anthropologists can bear in mind the comments in this note, then I hope that the ethnographic reality can be made to inform the law in land matters.

(1.) Schd. I. "Races now considered indigenous to Sarawak", later, revised laws of Sarawak, 1958, cap. 1.

(2.) Order No. VIII. s.2.

(3.) Land Order, 1933.

(4.) Land Code, 1958 s. 20 (1) (b).

(5.) [l993] M.L.J. 537

(6.) Cap. 1/1958 Schd. III

(7.) For a similar political reference see the discussion in Dentan et. al. 1996 on the Orang Asli and "Buniputera" in Peninsular Malaysia.

(8.) See the special issue of the Sarawak Museum Journal (1989), vol. XL, on ethnicity.

(9.) Except where the issue is rights to untitled Native land where both parties are subject to the same personal law (s. 5(3)).

(10.) Matusin v Kawang (1953) SCR: 106.Lee 1973: 1.

(11.) Haji Abdullah v Rupah. Lee 1973: 65.

(12.) See e.g. Keasberry v Gomes. Lee 1973: 146.

(13.) See Hooker 1980: 16f for examples.

(14.) Land Ordinance, 1948; Land Settlement Ordinance 1948; and Dealings in Land (Validation) Ordinance 1955.

(15.) The post-1958 amendments are dealt with below.

(16.) They are: (a) Mixed Zone land, (b) Native Area land, (c) Native Customary land, (d) Reserve land, and (e) Interior Area land.

(17.) The recognized methods are: (a) clearing of jungle and occupation, (b) planting fruit trees, (c) occupation and cultivation, (d) use of ground as a shrine or burial ground, (e) use of land as a right of way. Now in s.5(2) of the Land Code.

(18.) Government policy now is to refuse permits in all cases. Verbal communications to the author from the State Attorney General's Office, Kuching, November 1997.

(19.) From Keteng v Tua Kg. Suhtiaili (1951) S.C.R.9.

(20.) Nyalong v Supt. of Lands, 2nd Division (1967) 2 MLJ 249.

(21.) Section 20 Native Courts Ordinance 1992.

(22.) Section 213 Land Code, 2nd Schd. Part I.

(23.) Section 5. Extinguishment has been subject to extensive amendment in 1974 and 1996 "in order to streamline the process of extinguishment".

(24.) Section 5(3) Land Code. This rule was introduced in 1974.

(25.) Minister for Lands v Bilam. Civil Appeal No. 2/1971.

(26.) Sections 212 and 82(2).

(27.) See, e.g. Nyalong v Supt. Lands [1967] 2MLJ 249; Ara v Supt. Lands [1973] No. 103, Kuching District Civil Case.

(28.) Now restated, for example, in the Adat Iban of 1993 and Adat Kayan-Kenyah of 1994, both made under the Native Customary Laws Ordinance, Cap. 51.

(29.) Order of August 1899. See Udin v Tuai Rumah Utom [1949] SCR 3.

(30.) Sumbang v Engkarong [1958] SCR 95 and Abang v Saripah [1970] 1 MLJ 164.

(31.) The WGIP established in 1982 was proposed by the sub-commission on the Prevention of Discrimination and Protection of Minorities in its Resolution 2 (XXXIV) of September 8, 1981. This resolution was endorsed by the Commission on Human Rights in its Resolution 1982/19 of March 10, 1982, and authorized by ECOSOC in its resolution 1982/34 of May 1982

(32.) See WGIP's Report UN Doc. E/CN. 4/sub. 2/1986/7/Add, para. 379.

(33.) "See Independent Commission on International Humanitarian Issues, Indigenous Peoples: A Global Quest for Justice 11 (1987).

(34.) Gazette, Vol XL VIII (No. 11), 3rd June 1993.

(35.) This is a reference to the pre-1996 Codes of Adat. See Hooker 1980, for an outline.

(36.) Established in 1977. One of its major functions is to codify the Sarawak adats for legal or administrative purposes.

References

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Langub, Jayl

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