The epoch of Customary Law, and of its custody by a privileged order, is a very remarkable one.
– SIR HENRY JAMES SUMNER MAINE, BRITISH JURIST AND HISTORIAN
Customary law is the sharpest arrow in the quiver of “the law” since custom or usage is the best interpreterof laws – consuetudino est optima legume interpres (Latin). Natural law, human rights law, and positive law (man-made) are the other main shining stars in tribunals and forums of law where justice is awkwardly dispensed.
Uncontaminated, untainted and unadulterated justice is a stranger to indigenous peoples given the fact that they are hardly represented in their legislatures where they could participate in effectuating law reform based on customary law.
The obvious upshot for this legislative participation lies in the truism that customary law cannot be uprooted wherever governments sprouted in indigenous peoples’ habitats owing to available and reliable anthropological studies.
A few years ago, the World Bank census declared the global population of indigenous peoples at 320 million, or almost five per cent of the total global population with 80 per cent of these environmental stewards and ecological custodians located in Asia.
The World Bank’s primary concern and principal interest (pun intended) in indigenous peoples’ welfare, well-being and advancement was impelled by international tribunal cases that rocks the conscience and consciousness of the capitalist elites that totally control land use and resources (for their mega-projects) of indigenous peoples.
The “full consent” of Aboriginal Peoples” as a prior requirement prevailed in the Canadian case Delgamumuukw v British Columbia [1997] 3 SCR 1010, PARA.168, and the Belizean case Maya Villages of Santa Cruz & Conejo v. the Attorney General of Belize and the Department of Environment and Natural Resources which underscored the “full consent,” not just “full consultations” requirement prior to the World Bank’s engagement for protecting lenders.
A noteworthy development that has the potential to benefit Sarawak’s indigenous peoples is evident in this requirement being adopted by the International Finance Corporation, Inter-American Development Bank, European Bank for Reconstruction and Development and the Asian Development Bank wherein creative funding and financing protocols abound in abundance.
Capital inflow for major financing and funding of identified mega-projects in our region with “full consent” of indigenous peoples will guarantee the construction of blue-ribbon educational facilities, housing projects and medical amenities.
The cream, pith and substance of the wealth-creation can be legislated to and for the benefit and advantage of indigenous peoples if customary law is constantly frequented by financial institutions which now have a clear perspective of “full consent” versus “full consultations.”
As a living law, customary law can make great strides in Sarawak too. It is a living roadmap developed, defined and refined by tribal chiefs and elders, anthropologists, historians, and scholarly researchers knowledgeable about indigenous peoples’ customs, mores and traditions.
The Adat Iban is always there as a reliable sentinel. Adat Iban is relevant to what’s happening in Sarawak today. It can, and should, play a central role in tandem with English common law as practised in Malaysian courts where a proactive judge may even venture to consult the Federal Constitution (FC) for appropriate guidance when stuck in a conundrum.
Adat Iban has the wherewithal to stand tall and equal to English common law so that each can complement the other. English common law and statutory law as promulgated by the Malaysian Parliament alone are insufficient to meet the needs, expectations, entitlements and obligations of customary law in the context of Sarawak’s demographics as contemplated in the Constitution of Sarawak and the FC.
The stakeholders, as law-abiding denizens and citizens, can only look to the four enumerated sources of law for solutions and remedies. Looking at the existing record, Sarawak’s native courts have seldom been embroiled in aggressive litigation with the federal government over rights to their God-given resources emanating from their land and soil with the guarantee and promise of an endless source of wealth.
Customary law has seldom been invoked by Malaysian courts, and even if it is consulted, it is only in passing reference to soothe some political, social and economic sentiments.
“The strength of customary law lay in its original connection with the lives and culture of the people. To be revitalised, it must accordingly link itself up to the new energies of a people in transition and be sensitive to the real nuances and contradictions of daily life. Its anchor must be the sense of justice and fairness of a community and its star the broad values of the Constitution,” cautioned Judge Albie Sachs of South Africa’s constitutional court. Sarawak is certainly ripe and ready for such an undertaking and endeavor.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.
