By Third Eyed Raven (Majangkim Office)
KOTA KINABALU: Sabah runs three parallel judicial systems: Civil, Syariah, and Native. In theory, they stand as equal pillars of justice. In practice, the Native Court sits on a broken stool—crushed by a colonial ordinance from 1952 and legally subordinated by its own state enactment.
Two legal fossils are to blame: Cap 64 (Interpretation (Definition of Native) Ordinance 1952), which defines “native” with loopholes wide enough to sail a fleet through; and Section 9 of the Native Courts Enactment 1992, which strips Native Courts of jurisdiction the moment a case touches Syariah or Civil law.
Together, they have relegated Sabah’s indigenous legal heritage to a subordinate footnote. With the clock ticking, Sabah faces a critical choice: reform its laws or witness the erasure of its native identity.
I. Cap 64: The Colonial Revolving Door
Drafted eleven years before Malaysia even existed, Cap 64 outlines four pathways to native status. Two of them function as ticking demographic bombs.
Most glaringly, the fourth pathway allows any person “ordinarily resident in Sabah” who is “a member of a people indigenous to the Republic of Indonesia or the Sulu group of islands in the Philippine Archipelago” to claim native status.
No fixed residency period is required; a sympathetic village head and enough time to blend into a community are often sufficient.
Consequently, Sabah’s 42 native ethnic groups and over 200 sub-ethnic groups—including the Dusun, Murut, and Rungus—lack an exclusive legal lock on their own identity.
Conversely, children of genuine mixed parentage frequently fall into bureaucratic grey zones, forced to beg for administrative mercy.
The fallout is already visible: native land is being alienated to dubious “natives,” and the certification powers of village heads are being abused.
The landmark 2025 High Court ruling affirming Sabah’s 40% revenue entitlement becomes hollow if the legal definition of who belongs to Sabah remains an open door.
II. Section 9: The Subordination Clause
While Cap 64 dilutes who a native is, Section 9 of the Native Courts Enactment 1992 delivers the knockout punch to native authority.
It dictates that Native Courts “shall have no jurisdiction in respect of any cause or matter within the jurisdiction of the Syariah courts or of the Civil courts.”
The implication is stark: the moment an indigenous matter intersects with Islamic law—such as a Muslim native marrying, divorcing, or inheriting property—the Native Court is legally silenced. Generations of adat (customary law) wisdom are instantly discarded.
For example, if a native Muslim couple in Keningau wishes to divorce via adat—seeking a swifter, community-based resolution—Section 9 bars them from doing so.
They are forced into the Syariah Court, where their customary rights to ancestral property division under adat are routinely sidelined.
Former Sabah Law Society President Datuk Roger Chin notes that this disparity “potentially violates individuals’ rights to choose their preferred legal system.” The solution is concurrent jurisdiction: allowing indigenous citizens to choose whether to bring family and personal law matters before the Native Court or the Syariah Court.
III. The Ghost of Project IC: A Warning Unheeded
This vulnerability is not theoretical; Sabah has lived this crisis before. In the early 1990s, “Project IC”—a systemic federal scheme—flooded Sabah with hundreds of thousands of dubious identity cards issued to undocumented migrants.
The objective was overtly political: alter the state’s demographic balance, manufacture voters, and lock in federal dominance.
The scale, documented during the Royal Commission of Inquiry (RCI), was staggering. A former Sandakan district chief testified that between 1976 and 1984 alone, no fewer than 125,000 immigrants were granted citizenship.
Estimates now suggest that “Project IC” citizens in Sabah exceed 700,000, with roughly 200,000 remaining on the state’s electoral roll.
RCI transcripts revealed how deeply entrenched this operation was. When asked by magistrates or election officers how they obtained citizenship, migrants consistently answered: “From a project called Project President Mahathir.” Former Sandakan district chief Hassnar Ebrahim testified that then-Deputy Home Minister Megat Junid openly admitted the Prime Minister had directed the study of 48 state constituencies where voter numbers needed boosting.
Cap 64 was the skeleton key that unlocked this scheme. Because its definition of “native” was so loose, certifying newly arrived migrants as natives was legally defensible on paper.
A 2024 academic study highlighted the permanent seismic shifts caused by this maneuver: non-Muslim natives lost their numerical political leverage, an absolute Muslim electoral majority was engineered by 2013, a deep trust deficit was fostered, and systemic statelessness remains unresolved. Project IC allowed illegal immigrants to bypass standard legal processes, absorb into Muslim indigenous groups, and systematically shift Sabah’s political landscape.
IV. The Warning from Across the South China Sea
To understand how unchecked demographic shifts eventually demand political recognition, one needs only to look west to Peninsular Malaysia. There, marginalized migrant populations, like the Rohingya, are beginning to transition from silent refugees to organized groups making structural demands.
While the Rohingya lack any legal path to citizenship, Sabah’s situation is far more structurally vulnerable. Unlike Malaya, Sabah houses vast, long-standing communities of Indonesian and Filipino descent who, under the current wording of Cap 64, possess a plausible, lawful pathway to native status. If external groups exploit these loose definitions, backed by legal literacy or external political interests, the change will be permanent.
This is a matter of mathematics and law, not xenophobia. If the definition of “native” remains a revolving door, Sabah’s indigenous majority will find themselves a minority in their own homeland—not by conquest, but by administrative erosion.
V. Political Paralysis vs. Genuine Reform
Despite these pressing vulnerabilities, Cap 64 has not been meaningfully amended since 1952. Even the Pairin Kitingan administration (1985–1994) left it untouched. Similarly, while a draft Sabah Native Court Enactment exists, legislative progress remains slow.
Chief Minister Hajiji Noor has allocated RM84.4 million for new Native Court buildings. However, infrastructure without systemic reform is merely a beautiful cage.
The state government’s pledge to elevate Native Courts to parity with Civil and Syariah courts is purely cosmetic unless Section 9 is repealed and Cap 64 is made airtight.
VI. The Way Forward
Sabah can rectify these structural flaws through two targeted legislative actions, requiring no constitutional crisis:
Amend Section 9: Introduce concurrent jurisdiction. This allows all natives, including Muslim natives, the right to elect whether to bring family and personal law matters before the Native Court or the Syariah Court, thereby respecting both adat and Islam without subordinating either.
Overhaul Cap 64: Close the foreign-national loophole entirely. Codify an Official Schedule of Indigenous Ethnic Groups to eliminate vague geographical catch-alls like the “Sulu archipelago.”
The 2022 federal constitutional amendment successfully restored the power to define Anak Negeri directly to the Sabah State Legislative Assembly (DUN). The state must use it.
With prominent leaders like former Moyog assemblyman Datuk Darell Leiking historically backing concurrent jurisdiction, current Moyog representative Datuk Donald Peter Mojuntin navigating these ongoing local struggles, and the Sabah Law Society advocating for Cap 64 reform, the necessary mechanisms and political justifications are already on the table.
Conclusion: The Horn or the Knife
A Borneo Fortress built on shifting colonial foundations cannot stand. Sabah cannot successfully defend its ancestral lands, its 40% revenue rights, or its political autonomy while its native legal identity remains compromised.
If the state government does not lock native identity into law today, the next generation will spend their lives litigating their heritage case by case, acre by acre, against organized interests who hold no loyalty to adat.
The ultimate casualty of current legislative inaction will be our grandchildren. They risk inheriting a Sabah where the term “native” has been hollowed out, and where they must beg for legal permission to exist on their own ancestral lands.
Misompuru tokou—let us unite in the legislative chamber before the gate is locked from the outside.
