By Remy Majangkim
KOTA KINABALU:/When the Sabah State Legislative Assembly (DUN) tabled and passed the Native Courts Bill 2026 on July 22, 2026, it did far more than replace a 34-year-old statutory relic.
It reopened a fundamental constitutional question that goes to the heart of Bornean self-determination: Who holds the sacred right to define, codify, and administer indigenous customary law?
For over three decades, Sabah’s customary legal framework operated under the Native Courts Enactment 1992.
While celebrated at the time by administrative bureaucrats as a necessary step toward legal standardization, the 1992 framework suffered from a fatal structural flaw: it was heavily shaped by Peninsular civil legalists, state legal advisers, and external common-law judges who sought to compress centuries of fluid, organic, and restorative adat into a rigid, centralized administrative mold.
The 2026 Enactment represents an overdue act of institutional decolonization—a calculated move to erect another wall in the Borneo Fortress.
1. The 1992 Legacy: Codifying Adat Through an External Lens
To understand the magnitude of the 2026 reforms, one must look closely at how the 1992 Enactment functioned in practice.
The External Mold: Drafted under heavy Peninsular and English common-law influence, the 1992 framework treated adat as a quasi-administrative sub-system rather than an independent, sovereign source of jurisprudence.
Statutory Rigidity: It attempted to fix fluid village restorative practices into rigid statutory rules, fines, and sogit schedules. In doing so, it frequently stripped away the nuanced regional variations among Kadazan-Dusun, Murut, Bajau, and other indigenous ethnic groups.
Subordination to Executive Power: Native Courts were positioned at the bottom of the administrative hierarchy—frequently overruled, neglected, or treated as mere local arbitration tribunals under the thumb of state-appointed District Officers rather than co-equal constitutional bodies.
2. The Ancestral Covenant: Returning to the Batu Sumpah Keningau
To truly understand why customary authority is non-negotiable for Sabahans, one must look back to August 1964 and the erection of the Batu Sumpah Keningau (Keningau Oath Stone).
The interior native leaders, fearing that forming Malaysia would erode indigenous autonomy and land rights, refused to pledge loyalty to the new federation until specific guarantees were permanently chiselled into stone.
Led by OKK Sedomon Gunsanad and his brother OKK G.S. Sundang, and overseen by then-District Officer Richard Lind, the Oath Stone inscribed three unyielding promises:
Ugama Bebas Dalam Sabah (Freedom of Religion in Sabah)
Tanah2 Dalam Sabah Di-Kuasa Oleh Kerajaan Sabah (Sabah Government Holds Authority Over Land in Sabah)
Adat Istiadat Anak Rayat Sabah Di-hormatkan dan Di-pelihara Oleh Kerajaan (Native Customs and Traditions Will Be Respected and Upheld by the Government)
The third pledge was not a polite policy suggestion; it was an explicit constitutional condition of federation. The 1992 Enactment diluted that covenant by submitting native customs to external civil control.
The 2026 Enactment is, at its core, a long-overdue fulfillment of the oath demanded by OKK Sedomon and G.S. Sundang sixty-two years ago.
3. Reclaiming Ownership: Institutional Upgrade vs. Preservation
Addressing concerns that legal modernizers might homogenize indigenous customs under a centralized state apparatus, State Local Government and Housing Minister Datuk Ariffin Arif emphasized during the legislative assembly proceedings that the reform targets the administrative architecture, not the living customs themselves:
“The objective of this Bill is not to change, standardise or abolish customary laws. Customs remain alive within the community and differ according to each ethnic group, district and cultural background. What is being reformed is the institution and administration of customary justice so that customs can continue to be preserved and implemented through a more orderly, fair and credible court system.”
Ariffin further noted that clearly defining the court’s jurisdiction serves to “create legal certainty, reduce overlapping jurisdictions and ensure disputes are heard by the appropriate forum,” leaving Civil and Syariah court jurisdictions unaffected.
4. Breaking Executive Patronage: The Four Pillars of the 2026 Reform
Perhaps the most damaging flaw of the 1992 system was the blurring of executive and judicial power at the grassroots level. Under the 1992 Enactment, District Officers (DOs)—civil servants answerable directly to state executive power—presided over District Native Courts.
This created an inherent conflict of interest whenever native customary rights (tanah adat) clashed with state land allocations or corporate development concessions.
The 2026 Enactment systematically dismantles this administrative subordination:
A Formal Three-Tier Hierarchy: Reorganizes the courts into the District Native Court, High Native Court, and Native Court of Appeal—giving the system structural parity with civil judicial hierarchies.
Native Judicial Appointments Advisory Committee: Takes judicial appointments out of purely political hands, establishing a merit-based body grounded in customary knowledge and ethical integrity.
Formal Ethics & Representation: Introduces a formal Judicial Code of Ethics alongside recognized Native Court Counsel, ensuring native litigants are no longer undefended when facing complex corporate or land challenges.
The Register of Elders: Maintains an official roster of recognized local customary leaders to advise judges on hyper-local traditions, guarding against top-down legal homogenization from Kota Kinabalu.
5. The Constitutional Barrier: The Article 121(1A) Contradiction
While the 2026 Enactment solidifies Sabah’s internal legal autonomy, it exposes a glaring federal contradiction.
Under Article 121(1A) of the Federal Constitution, civil High Courts were explicitly stripped of jurisdiction over matters falling within the purview of Syariah Courts, granting Islamic jurisprudence absolute constitutional protection from civil judicial interference.
However, Native Courts were never granted co-equal constitutional immunity under Article 121(1A).
As a result, native customary rulings—particularly over land boundaries, ancestral heritage, and Native Customary Rights (NCR)—remain perpetually vulnerable to civil judicial reviews and injunctions issued by civil High Courts.
If Sabah is to function as a true Borneo Fortress, state-level legislative upgrades must eventually force Putrajaya to address this constitutional inequality. Institutional decolonization cannot stop at the DUN gates; it must compel the Federal Constitution to recognize indigenous customary jurisprudence as an equal, constitutionally protected pillar of Malaysian justice alongside Civil and Syariah systems.
6. The Peninsular Warning: Why Sabahans Must Guard Their Native Courts
To appreciate why Sabah’s 2026 reforms are vital, one only needs to look across the South China Sea to Peninsular Malaysia.
In Pahang and across the West Malaysian heartland, Orang Asli communities continue to face devastating ancestral land clearing, logging concessions, and corporate palm oil developments.
Lacking an autonomous, constitutionally recognized Native Court system of their own, Orang Asli villagers are routinely treated by state land offices and corporate developers as mere “squatters” on state land, forcing them into expensive, decades-long civil lawsuits just to prove their ancestral connection.
Sabahans should view the tragedy of Peninsular indigenous dispossession not with detachment, but as a stark warning:
Without autonomous legal machinery: Customary rights remain paper promises easily overridden by executive land alienation and corporate interests.
The Sabahan Shield: By formalizing a three-tier judicial structure, establishing an independent appointments committee, and recognizing Native Court Counsel, Sabah is erecting a vital legal fortress. It ensures indigenous land claims are tried within a dedicated customary framework before state administrators or developers can unilaterally bulldoze ancestral heritage.
In this light, Sabahans can be grateful for the foresight of leaders like OKK Sedomon Gunsanad and G.S. Sundang who carved our rights into the Keningau Oath Stone—and the 2026 Enactment is the necessary modern upgrade to keep that shield impenetrable.
The Verdict: Decolonization or Bureaucratic Realignment?
Reclaiming the native court framework from the legacy of 1992 is a victory for Bornean legal sovereignty. It asserts that Sabahan customary law is not a relic of a bygone era to be managed by civil bureaucrats, but a dynamic, self-governing pillar of our constitutional heritage.
However, a fortress is only as strong as the integrity of those guarding its ramparts. For this enactment to truly serve the Rakyat:
The Judicial Appointments Advisory Committee must remain fiercely independent of state political patronage and local chieftain favoritism.
The Register of Elders must prioritize authentic community custodians over politically aligned appointees.
The expanded jurisdiction must actively defend native land rights against corporate encroachment, rather than serving as a rubber stamp for executive acquisitions.
Replacing the 1992 Enactment marks an essential milestone in Sabahan self-determination. But the true test of this new fortress lies in how fiercely it protects the native villager in the interior heartlands when executive power comes knocking at the door.
Misumpuru Tokou Savi-Avi
