Written by: Averroes
(1.0) Introduction
Recently, I saw some Instagram stories with some of my fellow Sabahans posting the Indigenous Day of Sabah. I wondered what it means and felt to celebrate that particular occasion. In the meantime, I cannot help but the day reminded be of the Sumandak and Unduk Ngadau, during the Tadau Kaamatan festival every 30 and 31 May to celebrate the spirit paddy of Huminodon.
What is Unduk Ngadau you may ask? It is a beauty pageant in the State of Sabah since the 1960s whereby the Sumandak, a term for the Kadazandusun girls to exude their external and inner beauty, while also mastering the arts of culture, language, intelligence, eloquence and customs. As of today, I heard that Maya Hejnowska won and received a scholarship to further her studies in a local university.
Every Sumandak have their strengths and abilities, and this is something as Malaysians we all should aspire and emulate from. However, if there are guys out there interested in the Sumandak, it may be risky, because there are laws protecting the Sumandak, on her dignity, image, modesty and reputation.
According to the Natives of Sabah, the adat has been the source of their livelihood and are of valuable assets. Without it, their land would be under catastrophic events. Their lives on socio-economic activities related to farming, conservation and forestry are associated with the pantang larangs. If the customs are breached, then their source of sustenance would be jeopardised.
(2.0) The Law on Sumandak
(2.1) Important Definitions
First, we would have to understand important terms to establish and determine the law. The terms can be found under section 2 of the Native Customary Laws.
"Any person" is not defined, but the closest definition would be in Jaya bin Asahak v Munggau ak Lawai & Ors [2010] 6 MLJ 224, any person could mean just about anybody. However, if the provision inserts conditions such as the following;
Section 4(b), 4(2) and (3) of the Native Courts Ordinance 1992 provide that 'any person' who is in the opinion of the resident is versed in the native system of personal law of the relevant community (Melanau customs and adat), may be appointed to preside over a Native Court.
Therefore, any person is liable to the Ordinance, unless there is the exception or condition attached to it under the law, as specified above. If a non-Sabahan commits a breach of the customary law, then he is indeed liable as he is considered to be 'any person'. This came when a Pakistani breached Sabahan customary law for insulting the Kadazan culture and slapped to pay eight buffaloes and gongs as a fine.
"Babas" is defined as; any customary conciliatory gift to an aggrieved party designed to preserve the bonds of friendship.
"Denda malu", is a a customary compensation in respect of any breach of native customary law which exposes the aggrieved party to the possibility of disgrace, dishonour, humiliation or loss of dignity before the relatives or community to whom or which such aggrieved party belongs;
"Sogit" is a customary haematic penalty
"Adat fine"; penalty imposed in accordance with the native custom or local mores in the district in which the Court is established;
(2.2) Definition of Natives
How about Natives?
The law does not list down what race or culture are Natives of Sabah unlike Sarawak under article 161A(7) of the Federal Constitution which is expressly provided by law. Nowhere under article 161A(6) of the Federal Constitution and article 41(1) of the Sabah State Constitution provides a comprehensive list of Natives of Sabah. On the contrary...
According to section 2(1)(b)(ii) of the Interpretation (Definition of Native) Ordinance 1952, defines Natives as one at least of whose parents or ancestors is or was a member of a people indigenous to, Brunei, Sarawak, Federation of Malaya, Singapore, Straits Settlements, Indonesian Archipelago and Sulu people from the Philippine Islands.
Here is where the controversy arises since many illegal immigrants from Indonesia and the Philippines qualify as Natives of Sabah. Though, what generally constitutes to be the Natives of Sabah are the 32 ethnic groups. These include the Kadazandusuns, Bajaus, the Malays, Rungus, Murut and among others.
We can apply to become a Native as under section 3(1) of the Ordinance, but we would have to prove both way of life and to descent. This was because, in the case of Liew Siew Yin v. District Officer, Jesselton, the plaintiff did not live in the native community, as he married according to Chinese custom and gave his children Chinese names.
Yes, surprisingly, a Malay from Semenanjung and Islam is considered to be a native as supported in the Haji Mohd Nasaruddin bin Abdullah Case No. 173/75, Kota Kinabalu Native Court and in Masbaka bin Hj Hassan & Ors v. The Government of Malaysia & Ors, [2010] MLJU 1632. However, in the latter case, even when we fulfill section 2(1)(b)(ii) of the Ordinance, it is not automatic.
Additionally, we need a declaration or certificate from the Native Court and that only specifically, section 2(1)(a) of the Ordinance gives automatic native Sabahan status. Only when both our parents are members indigenous to Sabah, we are automatically Natives of Sabah. Therefore, even if one of our parents are considered to be indigenous people of Sabah through mix-marriages, then we are not Sabahan as we need that declaration, practice the custom itself and certificate from the Native Courts.
(2.3) Breaking our promise to marry a Sumandak
If we promised to marry a native Sumandak and we break that promise, that would amount to termination of betrothal as provided under section 13(1) of the Natives Courts (Native Customary Laws) Rules 1995, pursuant to section 30 of the Native Courts Enactment 1992 that states; "any person who, being betrothed, terminates that betrothal without any reasonable excuse commits a breach of native customary law and shall be liable."
The native Sumandak could take action against us. The person terminating the betrothal would have to pay the aggrieved party babas, that does not exceed 2 heads of livestock or other things equivalent in value according to that adat fine, and also pay the aggrieved party denda malu of 1 head stock.
Therefore, we have to find either buffaloes, bulls, calf, cows, ewe, goat, heifer, pig, lamb, ox, ram or sheep to pay the 2 heads of livestock. Imagine just committing the offence and we would have to circle the kampung or farms in search of it. Where are we expected to find it!?
If the offending party could not do so, then the aggrieved party would have to pay a fine not exceeding RM1,5000 or jail not exceeding 1 month or both the fine and imprisonment. If we could not find any kerbau or cows to pay off the babas, then this would be our last resort.
However, if we managed to pay off the babas and denda malu, we no longer have to continue with the marriage as provided under section 14 of the Native Customary Laws. Therefore, the man has a choice to continue with the marriage or not. The babas and denda malu serves as a deterrent and lesson to the man to not simply cancel everything off as it causes financial and emotional distress onto the Sumandak.
(2.4) Flirting with the Sumandak
The law did not expressly mention the word flirt, but according to section 21 of the Native Customary Laws, it mentioned that any person who entices or takes away any daughter from her parent or guardian commits a breach of native customary law and shall be liable to either;
This provision is similar to section 498 of the Penal Code and in Jamaludin bin Md Ali lwn Zulkiflie bin Ramli [2020] MLJU 1341, on taking away and enticing. "Taking away" implies some influence to induce the daughter to leave her parent or guardian. "Enticing implies some blandishment or coaxing". Hence, enticing has many synonyms, including flirting, flattering and smooth talk.
As a result of the offence, the flirting man has to pay the parent or guardian sogit, not exceeding 2 heads of livestock or other things of equivalent value in accordance with adat fine.
If the flirting man could not do so, then he has to pay a fine not exceeding RM2000, or go to jail not more than 6 months, or both. If any guys out there interested in a Sumandak Sabah, we have been warned. Are we prepared to face many challenges and obstacles with a Sumandak, and risk ourselves imprisoned for the love of our lives?
Think about it, personally, it all depends on the family background if they are very traditional and conservative or the open-minded, modern-urbanised Kadazandusun family. There may be family members who do not care if their daughters hang out with random men, as long as no harm is inflicted. Perhaps it is because, their daughters are all grown up and could manage themselves independently.
There are family members who are strict and are very reserved to the life partner and choices of their precious Sumandak.
As a man, we have to take responsibility and study the Sumandak and her background. This is not only confined to the Kadazandusun race, but to all other women out there of all cultures and religion. Marriage is not a game or something simple we could juggle around. Once we have ended our singlehood, taking care of our family, wife and children would ultimately be the number one priority of our lives in the future.
Lastly, a woman has her own pride and character. A woman naturally has maternal and stronger emotional feelings. Messing around with her feelings is the first thing we should refrain from. Most women are serious about their relationships, especially with the motivation and support from her family. If we as men feel that it would not work out or something is not right, it is best to be honest and break off rather than remaining in a toxic relationship.
() References;
Native Courts (Native Customary Laws) Rules 1995. Retrieved from, https://sagc.sabah.gov.my/?q=ms/content/native-courts-native-customary-laws-rules-1995
Rafidah@Malissa Binti Datuk Hj Salleh. (2014) Native Courts System in Sabah: Will it Continue to Survive? International Conference on Law, Policy and Social Justice. Retrieved from, https://www.researchgate.net/publication/269255102_Native_Courts_System_in_Sabah_Will_it_Continue_to_Survive/link/548563380cf2437065c9cef7/download
Rafidah Datuk Haji Salleh & Syuhaeda Aeni Mat Ali. (2019) A Study on the Administration of the Native Law in Sabah: A Need for Transformation. Retrieved from, https://www.researchgate.net/publication/330602329_A_Study_on_the_Administration_of_the_Native_Law_in_Sabah_A_Need_for_Transformation/link/5c4a51ac299bf12be3e191ab/download
Native Court of Appeal No. 2 of 1959, Lee Hun Hoe, Justice Datuk (1973) Cases of Native Customary Law in Sabah (1953-1972) Kota Kinabalu: Government Printing Office
E Nuar and G J Lunkapis 2019 IOP Conf. Ser.: Earth Environ. Sci. 286 012039. Retrieved from, https://iopscience.iop.org/article/10.1088/1755-1315/286/1/012039/pdf
Kristy Inus (July, 2020) Pakistani businessman fined eight buffaloes, eight gongs for viral video insulting Sabah natives. Retrieved from, https://www.thestar.com.my/news/nation/2020/07/21/pakistani-businessman-fined-eight-buffaloes-eight-gongs-for-viral-video-insulting-sabah-natives
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