Young Advocates Sub-Committee deputy chairman, Isaiah Majinbon.
KOTA KINABALU: A decision by community leaders in Keningau to summon activist Fahmi Reza over his controversial caricature of Sabah’s Tuan Yang Dipertua Negeri Tun Musa Aman has sparked debate on balancing native customary law and freedom of expression.
While the decision has attracted attention, legal experts like Datuk John Sikayun and Isaiah Majinbon focus on the legal and procedural aspects of the case rather than siding with or against the summons.
"Our aim is to educate the public on the nuances of native laws and customs while remaining objective. This conversation is not about justifying or questioning the motivations of any party but about exploring what the law provides and how it functions," said Sabah Law Society’s Native Customary Law Sub-Committee chairman Datuk John Sikayun.
Sikayun stressed that these views reflect their personal and professional perspectives on the Native Court system in Sabah.
They highlighted the importance of understanding whether the Native Court followed the proper legal process and questioned whether an insult aimed at an individual can affect an entire community.
The key legal question is whether the Native Court of Keningau has the authority to act on this matter.
According to Rule 36 of the Native Court (Native Customary Laws) Rules 1995, "defamation" and "insult," whether spoken or through gestures, are considered offences under native customary law.
Sabah Law Society’s Native Customary Law Sub-Committee chairman, Datuk John Sikayun.
However, Sikayun pointed out that this rule typically applies to harm against individuals, adding: "The question is whether it can also apply to an entire community, particularly one as large and diverse as the native community of Sabah."
Young Advocates Sub-Committee deputy chairman Isaiah Majinbon explained that Rule 58 gives the Native Court the power to enforce unwritten native customary laws.
Majinbon said that although the 1995 rules are not complete and do not cover everything, the Native Court has the power to apply local customs that are not written down, as long as those customs are recognised by the native people in the area where the court is located.
"If there is indeed a native customary law in the district of Keningau that specifically recognises a customary offence for defaming or insulting an entire native community, then, by virtue of Rule 58, the Native Court of Keningau may have a valid cause of action," he further noted.
This provision ensures that local customs are upheld, even in circumstances not expressly addressed in the 1995 Rules.
With over 50 ethnic groups, including various sub-ethnicities, Majinbon said Sabah’s diversity makes it difficult to apply a single customary law across all districts.
"Each district or village has its own unique set of native customary laws. For example, the customs of the district of Penampang may differ significantly from those in Tuaran, and the same applies to Keningau."
"Given this diversity, the drafters of the 1995 Rules deemed Rule 58 necessary, as it would be unjust to limit the administration of native customary laws solely to those codified under the 1995 Rules," he explained.
This raises another key question: Can defamation or insult directed at one person be extended to an entire community? The answer, Majinbon said, remains unclear and requires further debate.
He also questioned whether someone can sue on behalf of an entire community, adding that in civil courts, only the person who has been defamed can file a lawsuit.
"The same principles should apply to the Native Court when addressing customary offences against individuals," he said, stressing the need for consistency in upholding fundamental principles of justice.
On concerns about representation in cases involving community-wide defamation, Majinbon highlighted the need for clarity on who has the right to represent an entire community in the Native Court.
He said that without clear guidelines, such issues could lead to perceptions of overreach.
Both Sikayun and Majinbon stressed that the Native Court of Keningau is a judicial institution, where normally, a court’s role is to hear and decide cases, not to initiate them.
In this situation, however, the Native Court appears to be acting as both the complainant and the judge, which could compromise its impartiality.
A more appropriate process, they suggested, would be for a representative of the affected community, such as a village headman, to file the complaint.
They stressed that the Native Court should then act as an independent body to ensure a fair hearing.
The discussion shifted to the issue of jurisdiction, especially since Fahmi Reza is not a native.
Sikayun referred to Section 6(1)(b) of the Native Court Enactment 1992, which states that the Native Court can hear cases involving a non-native, but only if the District Officer approves it in writing, after consulting two Native Chiefs.
"This rule ensures the court’s authority is not misused," he explained.
If this procedural requirement is not met, the case could be declared invalid, as these safeguards are crucial for preserving the credibility and integrity of the Native Court.
The two lawyers also noted that this case highlights the need for reforms in the Native Court system, arguing that clearer jurisdictional boundaries and procedural safeguards are necessary to avoid conflicts and ensure justice is served fairly.
As part of the Native Judicial Reform Committee, Sikayun and Majinbon are working to improve the legal framework governing Sabah’s Native Courts.
"Our Native Court system must evolve to provide clearer jurisdictional boundaries and procedural safeguards. We do not see this as an institutional issue but rather as a problem within the legal framework governing the Native Court of Sabah," they added.
Their goal is to define the court’s authority more clearly and establish proper rules to guide its procedures.
As part of the law reform initiative, both Sikayun and Majinbon said they are actively reviewing and amending the legal framework to address gaps and strengthen the system, focusing on clearly defining the jurisdictional parameters of the Native Court of Sabah and establishing rules and guidelines to ensure procedural justice is upheld.
"This is why reform is so essential. The Native Court is not just a cultural forum for resolving disputes; it plays a crucial role in preserving our customs and indigenous identity."
"By addressing these legal gaps, we can strengthen both our traditions and our justice system," Sikayun said.
This case, they noted, serves as a reminder of the challenges in balancing traditional customs with modern legal principles.
As the Native Courts evolve, reforms will be necessary to ensure they function fairly while continuing to protect Sabah’s rich cultural heritage.
