Generally a native system of personal law applies only to a native person or community forming a part of part any native race.According to judicial interpretation the term ‘native’ is identified to be a native by descent and way of life.The Federal Constitution defines a native in Article 161 A, Clause (6&7) thus : (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 (b) In relation to Sabah, a person who is a citizen, is the child or grandchild of a person of a race indigenous to Sabah,and was born either (whether on or after Malaysia Day or not) either in Sabah or to a father domiciled in Sabah at the time of the birth. The races to be treated for the purpose of defining ‘natives’ in clause (6) as indeginious to SarawaAk are the Bukitans, Bisayahs, Dusuns, Sea Dayaks, Land Dayaks, Kadayans, Kalabits, Kayans, kenyahs (including Sabups and Sipengs), Kajangs (including Sekapans, Kejamans, Lahanans, Punans, Tanjongs and Kanowits), Lugats, Lisums, Malays, Melanos, Muruts, Penans, Sians,Tagals,Tabuns and Ukits.
The races listed are also the same ones define as indigenous under the Schedule to the Sarawak Interpretation Ordinance (Cap. 1) (Revised Laws of Sarawak 1958). In Sabah, section 3 of the Interpretation (Definition of Native ) Ordinance 1952 as amended in 1958 defines a native as :
(a) Any person both of whose parents are or were members of a people indigenous to colony; or (b) Any person ordinarily resident in the Colony and being and living as a members of a native community, one at least of whose parents or ancestors is or was a native with in the meaning of paragraph (a) hereof; or (c) Any person who is ordinarily resident in the Colony, is a member of the Suluk, Kagayan, Simonol, Sibutu, or Ubian people or of a people indigenous to the Colony of Sarawak or the state of Brunei, has lived as and been a member of a native community for a continuous period of three years preceding the date of his claim to be a native, has borne a good character throughout that period and whose stay in the Colony is not limited under any of the provisions of the Immigration Ordinance. In Sarawak,section 20(1) of the Native Courts Ordinance 1992 empowers the Native Court to determine a person’s native status include the person’s conduct, mode of life, the testimony of responsible members of the community, the opinions of assessors and may issue a certificate to declare the person’s native status.
Introduction of Native Law
Definition of Native Law can be concluded as the source of law properly categorized as one of the customary law in East Malaysia. Beside native law, there were another law had been categorized that is Malay customary law and Chinese customary law. Native Law’s function is one to protect the right of an indigenous people from invasion by irresponsible people. Generally, this law only in force in Sabah and Sarawak because this state representative most of the indigenous people in Malaysia. Pahang or other state still have an indigenous people but all of them protected under Federal Constitution. Thus, under Federal Constitution Article 161 A this community have been given special rights and privileges as indigenous people from East Malaysia. The Native Court in East Malaysia are established by state legislation, under the Sabah Native Court Enactment 1992 (No 3 of 1992)(SNCE 1992) and the Sarawak Native Courts Ordinance 1992 (No 9 of 1992)(SNCO 1992), respectively to hear and determine disputes among natives in relation to native customary laws and is to protect, safeguard the rights of indigenous people in the Sabah and Sarawak.Besides that, The Native court also may entitled to determine the status of indigenous people...