Lawyer proposes mediation be included in Sarawak Native Courts due to backlog of cases

KUCHING (Aug 9): Lawyer Libat Langub has proposed for mediation to be included in Sarawak Native Courts in view of the backlog of cases.

Stressing that this has its advantages and benefits, he said mediation is perhaps the form of Alternative Dispute Resolution (ADR) most suited for the present Native Courts set up.

“It can be based on some of the practices of mediation in the High Court which are appropriate, but synthesized or combined with traditional and cultural elements. The community or traditional leaders can be appointed as mediators to be assisted by elders from the community.

“Although there is no local guidebook or definitive review of traditional based ADR mechanisms in Sarawak, the mechanism and supporting structures can be developed taking into account the cultural elements of the native communities,” he said, following his presentation at the Legal Pluralism and Indigeneity in Sarawak and Sabah (Issues and Challenges) conference on Wednesday.

Libat’s proposal through his paper titled ‘Traditional Leadership and Alternate Dispute Resolution’ was said to have received support from attendees at the conference held at the Dayak Cultural Foundation (DCF).

He pointed out the subject matters for mediation could be confined to breaches of customs or adat, family matters, marriage and divorce, custody of children, inheritance and matters pertaining to native customary land.

“Some may argue that mediation in respect of Native Courts’ cases, at the present time, is an overly ambitious proposition as the relevant infrastructures for such exercise are lacking.

“Be that as it may, it is contented that with the right attitude and improved competence of the traditional leaders, the establishment of proper infrastructures, the cooperation of the native communities and assistance from the relevant authorities, the said objective could be achieved.

“There is also a need for the native communities to be informed and educated on the advantages and benefits of mediation as opposed to litigation,” he said.

Libat said recognition of such traditional dispute resolution practices is often provided for in the constitutions and laws of African countries, for instance in the Constitution of Kenya (2010).

“There is no provision in the Native Courts Ordinance on Alternative Dispute Resolution (ADR). In view of the above- stated, it is timely to promote ADR in the Native Courts where community or traditional leaders can be appointed to act as mediator in disputes on matters under the Native Courts Ordinance.

“Recognition of such ADR practices and procedures, which are culturally approved and relevant, can be incorporated in the Native Courts Ordinance, through amendment of the said Ordinance, and consequently the Rules made thereunder in order to have the force of law,” he said.

Meanwhile, Libat in his presentation said with society becoming more litigious these days, the Native Courts system has become inundated with disputes and the Native Courts have been grappling with the challenge of backlog of cases.

He revealed that as of July 15 this year, there were 1,223 cases in the District Native Court and 1,825 cases (out of which 1,661 were applications for native status) in the Resident Court and 118 cases in the Chief’s Superior Court.

There were also 3,111 cases in the Chief’s Court and 13 cases in the Headman’s Court throughout the state that were pending and unresolved.

“In conclusion, it is pertinent to take heed of the wise Iban saying which can be applied to traditional mediation, namely ‘Utai besai gaga mit’ (make big matters small), and ‘Utai mit gaga nadai’ (do away with minor matters),” he added.