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October 10, 2014

The Native Court was first established by Rajah Charles Brooke in 1870 as the "Native Mahomedian Probate and Divorce Court. To sit twice a week, or when necessary, for the settlement of marriage engagement, rights and divorce cases, and division of property occasioned by divorce or death." The Court was "Presided over by the Principal Chief of each Residency or District." [see Order in the SUPREME COUNCIL dated November 14th, 1870]

The establishment of the Native Court was mentioned earlier in Rajah Charles Brooke's comunication to the General Council assembly on 11th October 1870. In that communication HRH the Rajah "...confirmed the authority of the different Chiefs, to administer justice over cases of engagement of marriage, divorce, or division of property arising from divorce or death; such as cases to settled in accordance with established customs or rules laid down in the Mohamedan Religion, and duly recorded in the several native courts." HRH the Rajah further mentioned that the Native Court was "presided over by the principal Datu or Chief."

During the British Colony, particularly from 1947 to 1955, the Native Courts underwent major reforms. Among others, the passing of the Native Court Ordinance, 1955 [Cap. 43] was a significant development in the evolution of the Native Courts. The Courts' jurisdiction were extended to all natives of Sarawak on matters of customary law or customs. Further. apart from the Native Chiefs the Residents, District officers, Natives Officers and later on the Sarawak Administrative officers were given Magistrial powers to preside oves Native Courts cases. Hence, the Native Courts work became one of the main functions and duties of the Resident and District Offices. When Sarawak gained her independence through the Formation of Malaysia in 1963, the right of the State (Sarawak) in the Federation of Malaysia to constitute her own Native Courts was firmly enshrined in item 13 of List IIA of the Ninth Schedule of the Federal Constitution.

After sometimes the Native Courts Ordinance, 1955, was found to be riddled with many deficiencies. Among others, the appellate system was unsatisfactory. There was among other, poor records keeping by the lower courts which could give rise to protracted litigations. Further, there was huge backlog of cases before the Resident's Native Court and District Native Court. The Residents and District Officers needed more time and attention for other matters. For example, the implementation and monitoring of the development projects. At times their judicial responsibilities could cause friction to the good public relation between them and the local public. Thus, there was an urgent need to repeal the 1955 Ordinance. With the coming into force of the Native Courts Ordinance, 1992, on 1 June 1993 the 1955 Ordinance was repealed.

The Native Courts Ordinance, 1992, brought about the establishment of the Central Registry Office at Kuching. The Chief Registrar maintains the Central Registry and supervises and monitors the administration of the Native Courts through out Sarawak. All the District offices and Sub-District Offices become the registry offices of the Native Courts.

The Resident of the Division and the District Officers are still playing important roles in the administration of the Native Courts. For example, the Resident may review any judgement and order a retrial if he is of the opinion that there had been a miscarriage of justice. In the case of a District Officer, where there is no Registrar appointed the the District Officer of the District discharges the function of the Registrar. However, the Residents, District Officers and Administrative Officers in the Divisions, Districts and Sub-Districts are now to a certain extent relieved from the burden of hearing Native Courts cases. The Magistrates attached to the Central Registry take over the duties.