Adat Bidayuh 1994

ADAT BIDAYUH 1994

GENERAL EXPLANATION

INTRODUCTION

1. This codified version of Adat Bidayuh is based on research carried out by the Majlls Adat Istiadat Sarawak. Reference is also made to A.J.N. Richard's compilation of Dayak Adat Law in the First Division (Adat Bidayuh) (Government Printer, 1964).

2. Two earlier drafts of the Adat Bidayuh were thoroughly examined and discussed by the Adat Bidayuh Drafting Committee and the Ketua­ Ketua Masyarakat of the Bidayuh Communities of the Bau, Lundu, Kuching and Serian Districts. The first draft was examined and discussed by the Drafting Committee; the second.draft was thoroughly examined, discussed and approved by the Ketua-Ketua Masyarakat of the Bidayuh Communities at the Adat Bidayub Seminar held in Kuching from 18th to 22nd February, 1992. At both levels of examination and discussion the concept of the adat for the Bidayuh people was identified and translated into standard terminologies which are not only acceptable to the Bidayuh throughout Sarawak but also suitable for administrative and legislative purposes. Many of the adat compiled by AJ.N Richards were re-written to ensure that established adatomitted by him were included in the present volume. Where some aspects of the adat differ in minute details among the four main Bidayuh groups, these were standardised in this codification, FUNCTION OF TIlE ADAT 3. The primary function of the adat in the Bidayuh society is to maintain a harmonious relationship among members of the community and to preserve the physical and spiritual well-being of the kupuo. Proper conduct in accordance with the adat is believed to maintain the community in a state of balance or ritual well-being with the gods and spirits. Any breach of the customs may threaten individual relationship and the spiritual well-being of the community, such as the health and material prosperity of the people. Therefore, remedial action must be taken immediately by offering ritual propitiation. In order to preserve a cohesive community life and maintain the continuing state of spiritual well-being in terms of health- and material prosperity of the people, the adat must be strictly adhered to.

ii

ADMINISTRAn ON OF ADAT DIDAYUH 4. The Adat Bidayuh is governed by the Native Couns Ordinance, 1.992 (Ord. 9/92), and the Native Customary Laws Ordinance, 1955 (Cap. 51). Whoever deals with the Adat Bidayuh must be mindful of the aforesaid

Ordinances as well as other existing written laws. The various sections of the Adat Bidayuh have been arranged in a proper sequence for ease of reference. 5. Chapter I contains the definitions of words and expressions used in the main body of the Adat Bidayuh. Terminologies from the different groups of Bidayuh have been collected and identified. However, oBly the appropriate terminologies are used in the main text, and the others are placed within brackets in the appropriate place in Chapter I with indication of the dialectal areas in which these words or terminologies are used. 6. Chapter II deals with customs relating to construction of a new longhouse or kupuo and rules of social behaviour which is closely regulated by the adat for both members of the longhouse and visitors. The Bidayuh pay great respect to their adat and they expect other races when visiting them to respect the same. Rules of social behaviour must be strictly adhered to by both members and visitors. Any breach of the adat must be corrected immediately to avert divine displeasure. 7. Chapter ill deals with customs relating to infringements of farm­ ing rites including the various prohibitions and taboos, stages of farming activities and rules pertaining to farm work groups. Whenever there is a breach of farming rites, immediate propitiation measures must be taken to appease the spirits in order to ensure the well-being of the crops. 8. Chapter IV deals with customs relating to matrimonial or sexual matters. The custom of mowah is retained because it is a good way of establishing a relationship between the males and females of marriage­ able age in the longhouse or kupuo. The adat spells out the concept of mowah, its meaning and purpose. 9. Marriage between persons within the prohibited degrees of relationship, and incest or gross indecency are serious offences affecting the Bidayuh community. People who commit incest are prohibited from marrying each other. Incest is an offence punishable with secular fine, takud and prosis for a ritual cleansing. Marriage between persons within certain prohibited degrees of relationship is permitted only after undergoing the ritual of nai raban. 10. The Law Reform (Marriage and Divorce) Act, 1976 (Act 164) does not prohibit the natives of Sarawak from marrying according to their

iii

respective Native Customary Laws or Adat (see section 3(4) of the said Act). Therefore. the Bidayub in Sarawak has the choice of either marrying in accordance with the said Act or under the Adat Bidayuh. When a marriage is solemnised under the Adat Bidayuh, the Penghulu, upon request from the couple. shall issue a Marriage Testimonial (Form A). In the event of divorce, a Divorce ~ stimonial (Form B) shall be issued. These Testimonials are only proofs of marriage and divorce respectively. Ground for divorce and provisions for child maintenance have been revised and updated to meet the trend of modem social development. 11. Apart from the Adat Bidayuh, an application for maintenance can also be made in the civil court under the Married Women and Children (Maintenance) Act, 1950 (Act 263). However, it is to be remembered that a person can only seek maintenance in the civil court if the same subject matter has not been dealt with by the Native Court. 12. The Bidayuh community should take full advantage of the Registration of Marriage Ordinance, 1952 (F.M. Ordinance No. 53 of 1952) which was extended to Sarawak on 1st March, 1982. Any marriage solemnized under the Bidayuh custom may be registered under this Ordinance. except when one of the partners at the time of the marriage is a Christian or a Muslim. 13. Chapter V deals with customs relating to property: classification of property such as inherited. acquired. movable and immovable; individual rights to property; and methods of distribution. 14. Chapter VI deals with customs relating to death. burial and miscellaneous restrictions relating to death. According to the customs of the Bidayuh, the dead shall be buried at a recognized cemetery. This is to prevent indiscriminate burial. It also allows for proper community main­ tenance of the cemetery and effective enforcement of rules regarding offences against community cemetery. 15. Chapter VII deals with adoption of a child below the age of eighteen years. Under the Bidayuh custom, an adopted child has the same position. privileges -and rights of inheritance as a natural child. After an adoption. the Penghulu shall issue an Adoption Testimonial (Form C). The Adoption Testimonial is only proof of an adoption. In the event that the adoption is annulled. the Penghulu who annulled the adoption shall issue an Annulment Testimonial (Form D).

- .,,--8 64)

ir

16. A customary adoption may be registered in accordance with the rovisions of the Adoption Ordinance (Cap. 91) and the Bidayuh are advised to take advantage of these provisions. However, once the adoption has been registered, it can only be annulled by the order of the High Court.

iv 17. Chapter VIII contains a general provrsion to deal with other Bidayuh customs recognized by the community but may not be expressly mentioned in the Adat Bidayuh 1994. Therefore, cues involving such customs can still be initiated in any Native Court by an interested party and the court may impose such penalty or award compensation as it may consider reasonable in the circumstances.

CONCEPT OF FINE AND TAKUD 18. Under the Adat Bidayuh, it is important to distinguish between offences against the rules of social behavior and breaches ainst customs and taboos. With the power given under the Native Courts Ordinance, 1992 to the Native Courts to impose punishment including prison sentence for cri inal offences, it is now possible to make a distinction between offences against the rules of social behavior and breaches against customs and tab os. 19. Any breach against customs and taboos shall be subject to takud or restitution, and provision shall be I buah. In the conleXt of Adat Bidayuh, takud means a form of restitution. Restitution contains two essential ingredients of takud. First, the ingredient of settlement or restoration provided by the offender to the injured party in terms of buah to estore the 'balance' between two individuals. Second, the ingredient of appeasement or at nement provided by the offender to the injured party or the community in terms of prosu to preserve the physical and spiritual well-being of the community. Tbere is no element of punishment in takud. Example

A shooting accident during a hunting expedition is a criminal offence under the Penal Code. The offender shall be tried by the criminal court, and if found guilty shall be fined. However, according to the adat, immediately after the accident, he is required to provide takud to the family of the deceased in term of prosis consisting of kati belima (see section 96 of the Adat Bidayuh). 20. Under the Adat, the practice of providing prosis immediately after the event is not an admission of guilt on the part of the person concerned. It is a gesture of goodwill to maintain the harmonious relation­ ship among the members of the community, the spiritual well-being such as the health of the people and the material prosperity of the whole community. 21. Any offence against the rules of social behaviour such as divorce and adultery shall be subject to secular fines, and payment shall be specified in three units of measurement: kati, 112 a pikul or one pikul,

v

as the case may be. One kati shall be equivalent to RMl.00 (One Malaysian ringgit) and one pikul hall be RMl00.00 (One hundred Malaysian ringgit). There shall be three uni of measurement as follows:

10 lads

=

112 a pikul

= fifty Malaysian ringgit (RM50.00)

1 piJcul

= one hundred Malaysian ringgit (RM100.(0)

APPORTIONMENT

ten Malaysian ringgit (RMI0.00)

F FINES

22. The past practice of getting a cut from fines by the Piayuh

Kupuo and the Ketua Masyarakat shall cease forthwith, because at present, the Piayuh Kupuo and the Ketua Masyarakat are respectively receiving honorari s allowance and a proper salary scheme of service. 23. Section 19(b) of the Native Courts Ordinance, 1992, empowers a Native Court to direct payment of penalty or such part thereof to the aggrieved party. All secular fines shall be paid to the Government All takud shall go to the aggrieved party and prosis to the community, unless otherwise stated.

ENFORCEMENT OF FINES 24. With regards to enforcement of fines, sections 17(1) and 18(1) of the Native Courts Ordinance, 1992 empowers a Native Court to order payment of penalty or compensation and in default, to commit the offender to imprisonment. e court may order that the amount of such penalty or compensation may be levied by the sale of any property belonging to the person who is penalised or ordered to pay compensation. However, if t8e person presiding in a Native Court is not a Magistrate, and the offender refuses to pay any penalty imposed by such court, section 18(2) provides that- the person presiding in that Native Court shall report the matter to a Magistril'te who shall have the power to enforce the decision of the said Native Court.

OFFENCES AGAINST CUSTOMS COVERED BY OTHER W N WS 25. Section 28(b) of the Native Courts Ordinance, 1992 states that the Native Court has no jurisdiction to try a case which is an offence under the Penal Code.

.

-

~--. '---~~ .

­

vi 26. It is an established law that whenever any act or omission constitutes an offence under two or more Otten laws, the offender shall be liable to prosecution and punishment under one of any such laws, but shall not be liable to prosecution and punishment under another law for the same offence. 27. Where an offence falls within the ambit of the Penal Code or other written laws, the matter shall be dealt with by the relevant criminal or civil court However, where the offence required a ritual propitiation, such as ptosis; the offender shall immediately provide for it, irrespective of whether he is convicted or acquitted of such an offence by the criminal court. The rationale behind it is that, if during the period of the court proceedings or delay in such proceedings, someone in the community suddenly falls sick or die, the offender shall be liable, under the adat, to additional takud and prosis. 28. If a complainant reports a case to the police or commences any proceeding before a civil or criminal court, the Native Court shall not deal with the case. This is to avoid duplication of action and to ensure that no person shall be punished twice under different laws for the same offence or breach of the adat.

TAN SRI DAlUK GERUSIN LEMBAT, P.S.Mo, P.N.B.S. , P.B.6.,

Ketua Majlis Adat Istiadat Sarawak; Jabatan Ketua Menteri, Kuching, Sarawak

Our Ref: 2IMAIlCONIF16 26th May, 1994

THE

OVERNMENT GAZETTE

PART II

AK

SA

Published· by Authority Vo . XUX

26th May, 1994

No. 11

Swk. LoN. 27 TIlE NATIVE CUSTOMARY LAWS ORDINANCE

TIm

ADAT BIDAYUH

01u>BR, 1994­

(Made under sections 3 and 5)

WHEREAS the Yaug di-Pertua Nege:ri in Council is satisfied. after having consulted the Chiefs and Headmen of the Bidayuh communities in the Administrative Areas known as Kucbing, Bau, Londo and sedan Districts of Sarawak, that a general consensus of opinion ofthe Bidayuh communities in these areas favour a revision and an amendment to the Bidayuh native customary law and to make it applicable to all Bidayuh resident in the State of Sarawak: Now, nmREFORE, the Yang di-Pertua Negeri in Council, in exercise of the powers conferred by sections 3 and 5 of the Native ' -Customary Laws Ordinance, has made the following Order:

1. This Order may be cited as the Adat Bklayuh Order, 1994, and shall come into force on the 1st day of June, 1994.

Cap. 51.

(l95B Ed). Citation aod eommeDCe­ UleDI.

2. For the purpose of this Order, the term "Bidayuh" MeaIIiDa of means the native of Sarawak referred to as Land Dayak in ~>t. the Schedule to the Interpretation Ordinance. (l95B U).

-

-

--~-

----

-~~=-~

.. -

-

--~-

36

AutbariIed venie.

«

Adat Bidayuh.

3.-( I) That version of the Adat Bidayuh prepared in English which is set out in the Schedule has been agreed to by the Chiefs and Headmen of the Bidayuh communities in the Kuching, Ban, Lundu and Sedan Districts of Sarawak and approved by the Yang di-Pertua Negeri in Counci l. (2)

It is hereby declared that the Adat B

yuh refmed

to in paragraph (1) shall be the autbOOsed version of the nati ve customary law for all Bidayuh resident in the of Sa wak (hereinafter refmed to as "the au version" ) aDd for an sUch persons, cases and suits to which, in accordance with the

0rtI. No. W112.

Native Courts QrdinanrA\ 1992. or by virtue of any other wrlaa1 law, it may lawfully be appUed.

4. The Majlls Adallstiadat Sarawak is hereby authoriled to prepare and pubUsb the translation of the authorised English version of the Adat Bidayuh in Bidayuh dialects or in Babua Malaysia (beteinaft« referred to as "the autbodsed 1J'IDS1adon") IDd such authorised translation may also be used IDd referred to: Ptovided that, in the case of any coDfUct between the authorised translation IDd the authorised English version of the Adat Bidayuh, the latter sball prevail. ~-::111 odl« priDtu 10 ~

=-~ Bidayuh.

· 5.~ 1 ) The Government Printel or any other printer may, with the approval of the State Secretary, print IDd offer for sale to the geueral public copies of the authorised version and the authorised uanslaUon of the Adat Bidayuh, IDd such copies shall be deemed to be authentic copies of the native customary laws of the Bidayuh communities in Slrawak.

(2) Copies of the autbodsed venion and the autborlsed translation of the Adat Bidayuh shall be distributed among such persons, offices, institutions. and public bodies as the State Secretary may direct

37

SCHEDULE (Article 3)

ADAT BIDAYUH, 1994

(Authorised English Version)

ARRANGEMENT OF SECTIONS CHAPTER I

Section 1.

Definitions.

n

CHAPIER

CusToMs RELA'I1NG TO HOUSE O>NmtUCllON (Maners lor

2.

tne

Headman's Coun)

Duty of Piayuh Kupuo to swnmon his onak buah to

meeting. 3.

Breaching a promise to join bOlang romin (buruh pudo').

4.

Failing to erect the posts (buruh pudo').

S.

Disturbing the site for bolang romin (pinyabul).

6.

Discurbing 8DOthel' person's porang piroka (pingasuo).

7.

PuUiDg down posts (pirubuh).

8.

Failing to

9.

Rimbang-Badag.

CODStruct

roof (buruh pudo').

10.

Causing obstruction to bolang romin (ngampung nasip).

11.

Compensation for fruit trees.

12.

Taking porang piroka fran another person's land.

CusToMs RELA'I1NG (Maners lor

13. 14.

tne

TO

MoVJNG

HousE

Chiefs Court)

Removing of roof ridge. -(1) PuUiDg down one's romin (ngupong untangan). (2) Adjoining romin under taboo.

-

-~-

~-

-

--

-

-

-

-

..

38

Sectioll IS.

Vacating a romin.

16.

Driving away any member of the bolang romin.

17.

VacaliDg a detached CusToMs RmAmro TO I..MNo IN

(Maners /Or the Headman's

mE K UFUO

Court)

18.

E'Dteting anotber person's romin or bori (piluwa').

19.

Collecting persooal belonging from anotber petSOIl'S romin (I' bon (pingabah).

20.

Using another person's bomebold property (pingabah).

21.

Failing to participate in a kiroja lirukum.

22.

Gi,ruga-girogo anotber person's romin

23.

Damaging abe wall and otber household property of

bori.

(I'

another person (biurah).

24.

25.

Destroying another person's fence (pingasuo).

Setting fisbing apparatus in a river already reserved (lUUIdung).

26.

Damaging anotber person's fish pond (biurah).

27.

Sibarang sun fish from anod1a'

28. -(I)

peI'S