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October 10, 2014

The constitution of the Native Courts of original jurisdiction shall be as follows:

(a). a District Native Court consists of a Magistrate and two Assessors;

(b).  a Chief's Superior Court consists of a Temenggong or a Pemanca sitting with two Assessors, or both Temenggong and Pemanca sitting with one Assessor;

(c).  a Chief's Court consists of a Penghulu and two Assessors;

(d). a Headman's Court shall consists of a Headman and two Assessors;    Provided that a Headman's Court or a Chief's Court in which the proceeding is commenced may, on its own motion or on application by any party to the proceedings, order in accordance with section 5(6) that the case be referred for trial by a Chief's Superior Court.

Courts to which Appeal lies

An appeal shall lie:-

(a).  from the Headman's Court to the Chief Court;

(b).  from the Chief's Court to the Chief's Superior Court;    Provided that the decision of the Chief's Superior Court in respect of matters relating to native law and customs shall be final and conclusive and cannot be appealed to the District Native Court or the Resident's Native Court or the Native Court of Appeal;

(c).  from the Chief's Superior Court to the District Native Court;

(d).  from the District Native Court to the Resident's Native Court; and

(e).  from the Resident's Native Court to the Native Court of Appeal.

The Appellate Courts

The Resident's Native Court and the Native Court of Appeal are having appellate jurisdiction in respect of civil cases and land disputes.

The Resident's Native Court

The Resident's Native Court shall be constituted by a person who is the Resident of the Division and sitting with not less than 2 Assessors but not more than 4 Assessors.  The Assessors must be persons versed in customary law relevant to the determination of the appeal.

Special Jurisdiction of the Resident's Native Court

The Resident's Native Court is empowered to hear and determine any application:-

(a).   for the purpose of section 9 of the Land Code [Cap. 81 (1958 Ed.)] the question whether any non-native has become identified with a particular native community and subject to the native system of personal law of such community;

(b).   the question whether a person who is subject to a particular system of personal law (native or non-native) has become or became, by virtue of subsequent events, or by conduct or mode of life, subject to a different personal law;

(c).   the question whether a person subject to the personal law of a particular native community ceased or has ceased to be so subject.

        The most common applications received are those under category (a) from non-natives applying to be identified with the native communities of Sarawak.

The Native Court of Appeal

The Native Court of Appeal is the final court of appeal in the Native Court system in respect of civil cases and land disputes.  It has the jurisdiction to hear and determine all such appeal cases which are pending before the Court, including those cases filed after 1st June 1993.

The Native Court of Appeal shall consist of:-

(i).    the President;

(ii).  the President of the Majlis Islam or the Ketua Majlis Adat Istiadat Sarawak; and

(iii).  a person who is or has been appointed a Temenggong and;

        Where neither the President of the Majlis Islam nor the Ketua Majlis Adat Istiadat is able to sit as a member of such Court in any particular case, the President shall, after consultation with the Chief Registrar, nominate a Temenggong to replace him.

        The President of the Native Court of Appeal must be a person holding or has held the office of a Judge of the High Court or is qualified under the Federal Constitution to be appointed as a Judge of the High Court.

        The tenure of office of the President shall be for a period as stipulated in the instrument of appointment but shall not exceed three (3) years.  However, such person may be eligible for re-appointment.