2014 Chapters (Layout Features)

Dispute Resolution: Restorative Justice Under Native Customary Justice in Malaysia

Bulan, Ramy

Dispute resolution is an important aspect of Indigenous Peoples’ legal traditions. Underpinning these traditions is the need to settle conflicts and controversies to ensure social cohesion and harmonious existence. These legal traditions are products of practice and deliberations over long periods of time. Through repetitious patterns of social interactions, they are accepted as binding by those who participate in them. In many Indigenous communities, customary laws constitute a very important source of Indigenous legal traditions through which justice is meted. This paper looks at the character and administration of dispute resolution mechanism under the native customary justice system as a “court of first resort” for native peoples in Malaysia. “Native” is a legal term used to refer to Indigenous Peoples in the Malaysian states of Sabah and Sarawak. While some references will be made to Sabah, the paper will focus on two native communities, the Iban and Kelabit, in Sarawak to illustrate how linking the customary dispute resolution mechanism with the courts established by the State, could assist in the overall function and implementation of customary justice. It highlights the importance of restorative justice within the native customary justice system and how the sanctions and remedies granted thereunder are shaped by the Indigenous communities’ worldview, as they relate to their economic, physical and spiritual environment. In this discussion, the concept of justice refers not only to enforcement of rights, and imposition of judgment or punishment, but also the restoration of what was lost. This includes loss of peaceful co-existence and the need to restore relationships. In this context, restorative justice refers to an approach to justice that emphasizes repairing the harm done to people and relationships rather than mere retribution or punishment. It also takes into account the restoration of the state of balance with the economic, physical, and spiritual environment. The view is taken that the provision of better access to justice in the forums that they normally use is fundamental to the empowerment of Indigenous communities. This may be through formal legal institutions, but more often, the informal socio-cultural order and mechanisms for managing disputes and the administration of justice.