Sabah Native Court summons against Fahmi Reza faces scrutiny over procedural flaws

KOTA KINABALU, Jan 25 — A Sabah Native Court summons against artist and active Fahmi Reza for allegedly insulting the Kadazandusun (KDM) community has sparked criticism from some members of the public.

Experts say the court does have jurisdiction over such insults and offensive remarks; however, they also noted that the suit lacked “procedural compliance” by having the Keningau Native Court act as the complainant.

Former Kota Kinabalu Native Court district chief Datuk William Majinbon said the Keningau Native Court risks undermining its neutrality by initiating the case.

“For fairness, an affected party or community representative should file the complaint and not the court itself,” said Majinbon.

He said that the current approach raises concerns regarding the locus standi of the native court of Keningau and the principles of natural justice, particularly the principle that no one should be a judge in their own cause.

“The suit may have some procedural impropriety because the Keningau native court is suing on its own capacity. You can’t be the prosecutor and the judge at the same time. It goes against the fabric of natural justice,” said Native Court lawyer Isaiah Majinbon.

“For a fair and impartial process, it would be more appropriate for an affected party or community representative to file a complaint, with the Native Court serving solely as the adjudicator. This separation ensures that the court maintains its impartiality and upholds the integrity of the judicial process,” said Isaiah who is also on the native judicial reform committee.

“Procedural integrity is critical to maintaining public trust and confidence in the Native Court system,” he said.

Fahmi is facing a summons filed by Bingkor district chief OKK Daniel Palang representing the Keningau Native Court, claiming the peninsula-based artist and activist’s caricature of Sabah’s new governor, Tun Musa Aman, was insulting to locals, particularly the KDM community.

Experts all agree that there are provisions that allow naming Fahmi — a non native — for defamation or insulting, although it would be up to the judge to determine whether his act was deemed an “insult to the community”.

“Rule 36 of the Native Customary Laws Rules 1995 recognises defamation and insult — whether by word or gesture — as breaches of native customary law. The Rule states that any act intended to defame, degrade, discredit, or put someone into disrepute can warrant sogit (customary penalty) as a remedy,” said Majinbon.

Sogit, a token of reconciliation, can be imposed through the ritual blood sacrifice of livestock assets like buffaloes or pigs, or in the equivalent monetary form.

However, Majinbon said that to use the provision as a basis of collective harm against an entire community was debatable as Rule 36 is confined to individual harm.

“Nevertheless, Rule 58 of the 1995 rules empowers the Native Court to administer their own local adat laws and if the Keningau community acknowledges community insult as a customary offence, the court may have basis to proceed.

“This is provided it aligns with established native customary laws within the Keningau community and principles of fairness to ensure that the case does not undermine public confidence in the Native Court,” he said.

As for summoning a non-native, there have been a number of precedence prior to this, notably a summons issued on several foreign tourists who posed naked for photos atop Mount Kinabalu.

“Section 6(1)(b) of the Native Courts Enactment 1992 requires written sanction from the District Officer, based on the advice of two native chiefs, for cases involving non-natives. Without fulfilling this requirement, the summons may lack jurisdictional validity.

“If the procedural steps have been complied, Fahmi is legally obligated to respond. However, he retains the right to challenge the Native Court’s jurisdiction or procedural adherence,” said Isaiah.

However, he conceded that the consequences for Fahmi will be weak if the latter chooses not to respond.

“The court can enter judgement against him in his absence if he does not enter his defence. It will be up to them if they impose jail time in default of sogit but it will require a magistrate’s warrant to make this order, and rarely does this occur.

“This is why it is imperative that we reform the law to clearly define jurisdictional boundaries of the Native Court of Sabah and to establish clear rules and guidelines that ensure procedural justice. Our mission is not only to preserve our adat but to safeguard the survival of the very institution that administers it,” Isaiah said.