Malaysia legislation
Section 5
Section 5
⎯(1)
A Native Court shall, subject to section 28, have jurisdiction over⎯
(a)
cases involving native law or custom (other than the
Islamic Family Law Ordinance, 2001 [Cap. 43]) in which all the parties are subject to any native system of personal law;
Ord. No. 9/92
(b)
cases involving native law or custom (other than the
Islamic Family Law Ordinance, 2001 [Cap. 43]) relating to any religious, matrimonial or sexual matter where one party is a native;
[Sub. Cap. A87.]
(c)
any civil case, not being a case under the jurisdiction of any of the Syariah Courts constituted under the Syariah Courts
Ordinance, 2001 [Cap. 42], in which the value of the subject matter does not exceed two thousand ringgit and all the parties are subject to the same native system of personal law;
(d)
any criminal case of a minor nature which are specifically enumerated in the Adat Iban or any other customary law by whose custom the court is bound and which can be adequately punished by a fine not exceeding that which, under section 11, a Native Court may impose; and
(e)
any matter in respect of which it may be empowered by any other written law to exercise jurisdiction:
(i)
Provided that it shall be lawful for the
Resident, if he considers that any proceedings instituted or about to be instituted under paragraph (b) or (e) or under subsection (2) are likely to prejudice good relations between different communities or lead to a breach of public order or that, owing to his having formed the opinion that the determination will require the application of more than one native system of personal law, or for any other reason, the parties should be left to such remedies as they may have in other courts, to order that such proceedings be stayed or shall not be commenced. In any such case, the Resident shall make a report thereof to the
State Attorney-General, who may confirm or set aside any such order;
(ii)
And provided further that the judgment or order of a Chief’s Superior Court involving cases relating to native law or custom other than land disputes shall be final and conclusive and shall not be a subject of appeal.
[Ins. Cap. A87.]
(2)
In cases relating to any matrimonial or sexual matter in which a Native Court has jurisdiction where the parties are of different sexes and are not of the same community, or are by virtue of any written law deemed to belong to or be identified with different communities, the Native Court shall, unless the contrary is expressly provided in any written law, be bound by the law or custom of the community of which the woman is or is deemed to be a member:
Provided that a woman who has embraced the religion of Islam in accordance with the rites prescribed therefor in Sarawak shall be bound by the Islamic Family Law Ordinance, 2001 [Cap. 43].
(3)
Cases involving disputes between natives in respect of—
(i)
any land held under native customary rights or which is within a native communal reserve declared under section 6 of the Land Code [Cap. 81 (1958 Ed.)];
(ii)
any claim for compensation to be paid under the Land Code for termination of native customary rights over land; and
(iii)
any right to inheritance under native customary law to any land held under native customary rights or within a Native Communal Reserve, shall be heard in the first instance by a District Native Court.
(b)
Any person aggrieved by a decision of the District Native
Court may appeal against the same to a Resident’s Native Court in accordance with rules made under section 29.
Ord. No. 9/92
(c)
Any dispute between natives involving any land to which there is no title issued by the land office which is not of the nature described in paragraph (a) shall be heard in the first instance by a
Chief’s Court.
[Sub. Cap. A118.]
(4)
Where any proceedings of a civil or criminal nature which are required to be determined in accordance with⎯
(a)
native law and custom applicable to any native community; or
(b)
any other customary law by whose custom the Native
Court is bound, are commenced in a court constituted under the Subordinate Courts
Act 1948 [Act 92], such proceedings shall be transferred to a Native
Court having jurisdiction.
(5)
Any proceedings in respect of which a court constituted under the Subordinate Courts Act 1948 [Act 92], and a Native Court
(other than a proceeding referred to in subsection (1)) have concurrent jurisdiction shall be tried by the court in which the proceeding is commenced unless that court⎯
(a)
commits the case for trial under the provisions of the
Criminal Procedure Code [Act 593] by some other court having jurisdiction; or
(b)
in the case of a Native Court, orders in accordance with subsection (6) that the case be transferred for trial by some other court having jurisdiction.
(6)
When any proceedings are before a Native Court, at any time before judgment, such court may by order for reasons which shall be recorded, on its own motion or on an application made by any party to the proceedings, transfer the case for hearing and determination by any other Native Court or by a Magistrate’s Court of competent jurisdiction. A copy of the order and the reasons for the transfer shall be transmitted to the Resident. If the Resident considers that any decision recorded or passed by the Native Court to transfer the case for trial by some other court is illegal or improper or that any such proceeding is irregular, he shall order that such proceedings be stayed or shall not be commenced. In any such case, the Resident shall make a report thereof to the State Attorney-General who shall confirm or set aside any such order.
(7)
Where proceedings are transferred from a court to some other court under subsection (6), such other court shall commence the proceedings de novo.
(8)
[Deleted by Cap. A87].
(9)
All records of proceedings in a Native Court shall be kept in the manner prescribed by rules made under section 29.
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