Legal aspects of adat Iban

Legal Procedures

In the early chapters of Part One, the author describes specific rules of adat, the breach of which is met with by formal legal actions, including ritual expiation, fines or other forms of reparation. Here Mr. Sandin is concerned with adat generally, and in treating legal aspects of adat, his interest is primarily with the substantive side of customary law. However, some account of the legal procedures by which judicial decisions involving adat are made and enforced is useful here, given the social importance of adat in containing conflict and defining and upholding community norms.

Before the establishment of Brooke rule there were a number of offences in Iban society for which an individual might be killed: incest, arson, adultery when discovered in flagrante delicto, and homicide within the community (Heppell 1975: 146). In the latter two cases, Iban leaders traditionally intervened in an effort to forestall bloodshed. Well before the Brookes arrived, a system of blood compensation (pati nyawa) existed as a means of averting retaliation in the case of homicide. This system is described here, and elsewhere Mr. Sandin (1967: 87) has given an historical account of its use. Despite the presence of this convention, revenge killing was always a danger, as Iban leaders formerly lacked the power to compel their followers to make compensation.

In other situations when a person refuses to make reparation for a wrongful act, its victim may take recourse by forcibly seizing property belonging to the transgressor. The property seized is not necessarily kept, but part of it may be later returned after a settlement is negotiated. This institution is called ngerampas. Ordinarily the victim seeks to gain the backing of his kindred before proceeding and must pledge jars to compensate any supporters killed or injured in carrying out the seizure. Those who take part arm themselves and the appropriation is done openly and with force. Ngerampas is not necessarily a final settlement, but was often used in the past as a way of compelling the transgressor and his kindred to submit to negotiations. The procedure is dangerous, for it might meet with resistance, but this was generally discouraged by a convincing display of force and the knowledge that the attacking party is acting upon a legitimate grievance. Heppell (1975: 162-166) gives an excellent account of ngerampas for the Batang Ai region where, despite government suppression, it continued to be practised until recently. In the Saribas it was abandoned much earlier, falling into abeyance by the end of the last century, and instead reparations in value were imposed in face-to-face hearings (baum) backed by longhouse and regional leaders.

Another form of self-help traditionally permitted was resort to the use of wooden weapons in the conventions of batempoh and bepalu. These are described in the first chapter of this study. Heppell (1975: 177-88; 1976) also gives an account of bepalu from the Batang Ai, but there are significant local differences as noted in later textual notes. In Saribas, bepalu formerly occurred only in cases of adultery and was a form of private retaliation in which a cuckolded husband took direct action against an adversary, using a club or with the intent of administering a sound beating.

Again, the dangers of the procedure were recognized, as it occasionally resulted in fatalities or an outbreak of feud, and traditionally leaders sought to compel the parties involved to accept mediation by judicial hearing. In historical times, the practice in Saribas was for the longhouse headman to sacrifice a cockerel the moment a case of adultery was known. This constituted a public announcement that the matter was under judicial review. Once this was done the adversaries were not permitted to confront one another until a hearing was convened, and thus resort to self-help was treated as an affront to the headman’s authority and was fined accordingly. This practice also prevented killings in the event that the couple was found in flagrante delicto.

Batempuh was, in contrast, a public contest. It was resorted to in cases of boundary disputes between neighboring communities, in which neither side would voluntarily agree to withdraw its claim. The matter was settled by a fight in which the two sides were permitted to use only wooden clubs instead of spears and swords. The side that lost the fight was forced to withdraw its claim and the contested land was awarded to the victors. Leaders of the two sides were required, as a precondition, to pledge jars to compensate for deaths or injuries incurred by their followers, and the contest itself had first to be sanctioned, and was under the strict supervision of regional leaders. In the Saribas major leaders sought traditionally to avert batempoh because of the danger that people might be killed and actual fighting break out. The historical data that Mr. Sandin cites here suggests that their efforts were usually successful.

In particularly intractable cases, resort was sometimes made in the past to legal contests or ordeals in which the outcome was believed to be super-naturally determined. These ordeals are also described in the chapter that follows and consisted of diving contests (kelam ai), cockfights (nyelam), and the thrusting of hands into boiling water (bachelok belong) or into a fire (bachelok api). As a general rule, these procedures were used, as tests of innocence or ways of choosing between conflicting claims, particularly those of ownership, in situations where there exists no possible way to arrive at an infallible Human judgment. Like batempoh, ordeals were conducted according to strict rules, were judged by impartial witnesses, and were supervised, and compliance with their outcome upheld, by regional leaders. Ordeals had the advantage of giving a clear-cut verdict which other forms of legal action might not be able to achieve because of a lack of evidence or demonstrable proof. Partly as a result, elimination of ordeals proved difficult, despite government prohibitions at various times, as the author notes here in connection with diving contests.

Traditionally Iban leaders sought to settle disputes, as far as possible, through negotiation and attempted to avert recourse to self-help and other means that might potentially lead to open violence. In this, they were greatly aided by the highly comprehensive nature of traditional adat itself, which, although unwritten gave systematic definition of offences and correct punishments. Also important in this connection was the role formerly played by “go-betweens”. Within a longhouse, respected elders frequently intervened in disputes, restraining the two sides and acting with their consent as negotiating agents. Such intervention was strongly supported by Iban values, particularly by the notion that a breach of adat or unresolved contention posed a collective spiritual danger to the well being of all community members. Public-spirited elders, including the longhouse headman and friends of the disputants, might even agree to make token compensation themselves, called sa-uta iring manok. In doing so, a speedy settlement was often achieved that avoided acrimony and possible loss of face by the principals.

In disputes between the members of different longhouses, the role of the go-between was much more formalized. Ordinarily the go-betweens representing the aggrieved party traveled to the culprit’s longhouse and invited the elders of the settlement to a meeting. In the Saribas these go-betweens were called penunggu. Upon arriving at the culprit’s longhouse, they typically constructed a shelter (langkau penunggu) some distance away made of materials supplied by the culprit’s kinsmen. Here they received unarmed emissaries from the latter’s longhouse, and it was these third parties who negotiated a settlement on behalf of the principals. Except in the remote Ulu Layar, this practice died out in the Saribas in the 1880′s, but Heppell (1975: 221) reports that the use of go-betweens still persists in a modified form in Batang Ai. As a warring people, Iban culture traditionally placed high value on masculine aggressiveness and for this reason the use of go-betweens was traditionally an important judicial convention because it allowed the principals to submit to negotiation without direct confrontation and made it possible to make and accept reparation without suffering loss of face.

Of even greater importance was the face-to-face hearing, the baum or betunga. Heppell (1975: 8-9) sees the present day system of longhouse and Penghulu courts (bechara) as a “hybridization” of the traditional Iban baum and the introduced concept of the court. However, there appears to have been some difference here between major regional groups in the relative importance in the past of the baum as a judicial institution. In the Saribas, local and regional leaders appear to have exercised greater authority than was generally true among the Iban elsewhere. Consequently they seem to have enjoyed greater success in compelling disputants to accept negotiation in face-to-face hearings and the decisions made by the baum appear to have carried greater force traditionally than may have been the case elsewhere. Thus these hearings functioned as a nascent court system well before the arrival of the Brookes. However, Heppell is right when he points out (1975: 227) that their nature was profoundly altered when the formal authority of the state backed decisions. Even so, the present day bechara is thoroughly in-digenized and its workings are closely modeled on those of the traditional baum. More than this, the baum itself remains the chief means by which local conflicts are resolved.

The term baum, or aum, describes any meeting convened by a local leader. These meetings may be held for a number of reasons. In the Saribas, for example, a general distinction is made between baum mit and baum besai, “small baum” and “large baum”. The latter is typically a conference of headman and other leaders from neighboring communities who gather to discuss some matter of general concern. The baum mit, on the other hand, is convened by the longhouse headman, usually for the purpose of resolving a private matter between his followers. The matters dealt with are frequently disputes, or complaints brought by one longhouse member against another. Here the Tuai Rumah acts, not so much as a judge, as an arbiter, attempting sometimes with the help of kin and neighbors, to persuade the two parties to settle their differences amicably. Such baum usually make an informal settlement possible without the need for judgment (di bechara) otherwise, except in the case of serious wrong-doing, they represent the first stage in the process of adjudication and provide the Tuai Rumah with an opportunity to gain a better understanding of the issues involved in the dispute.

Another form of baum is the baum rumah. This is a meeting called by the Tuai Rumah to which representatives of each family are invited to discuss matters of common interest to the whole longhouse. Despite their individualism, the Iban frequently refer important decisions to the whole community, and once a decision is made through community discussion, individual longhouse members are expected to accept and follow the consensus arrived at. Such meetings may be called for a number of special purposes. The baum bumi, for example, is held just before the beginning of a new farming year to discuss farming matters, such as the location of padi fields, or to synchronize the time of clearing. The baum begawai is held to arrange for any kind of gawai festival, to determine the Tuai Gawai – or festival leader, the number of guests to be invited and so on. The baum ngaga jalai is held to discuss the clearing or maintenance of public paths and waterways. If, for example, a fallen tree blocks a river or stream to boat travel within the longhouse domain, such a meeting is called to organize a community work party to remove the obstruction. The baum berumah is held to plan the construction of a new longhouse, to pick a site, decide upon the order of bilik apartments and so on, and the baum rabat, to arrange vigils for the dead. Typically each of these meetings is held on the Tuai Rumah’s gallery in the evening after the main work of the day is done. Unlike the baum mit, they rarely have to do with legal disputes. Nevertheless, questions of adat regularly arise, and in the course of deliberations the responsibilities of each family are often stipulated and fines agreed to in the event that these responsibilities are not fulfilled.

If a complaint is serious or cannot be resolved informally, by a small baum, a public hearing, or bechara, is called by the Tuai Rumah, usually upon the request of one or both of the disputants. Ordinarily this is done in minor cases only after all possible channels of informal settlement have been exhausted. A basic principle of Iban judicial process is utai mit gaga nadai, “make small things nothing”, meaning that, in petty trouble cases, every effort should be made to erase a dispute by mutual conciliation before it reaches the level of formal litigation.

A public hearing is held on the gallery of the Tuai Rumah, and usually on neighboring ones as well, as longhouse bechara is typically well attended. Notice is given some days in advance, and, if necessary, messengers are sent out to call back those staying at their fields. Besides the disputants, witnesses and community elders, representatives from each family in the longhouse are notified and expected to be present. All are free to take part in the deliberations that are open to the whole community. Seated near the Tuai Rumah on the principal gallery are senior family heads and other elders known for their knowledge of adat or otherwise respected in the community for their success in practical affairs. The Tuai Rumah, or the Penghulu in the case of the Penghulu’s bechara, is expected to call for the public counsel of these men before he pronounces a final judgment. Their advice is usually concerned with identifying the appropriate rules of adat and of fitting their provisions to the specific circumstances of the case being heard. In doing so, they often cite precedent from judgments made in past cases of a similar nature. Their counsel is important and in the Saribas is formalized in the case of the Penghulu’s court in the requirement that the Penghulu take the advice of at least two elders before coming to a decision. Their combined knowledge of adat and of past judgments adds to the authoritativeness of the final decision arrived at, and helps to ensure its impartiality and faithfulness to the living tenets of adat thus established through judicial usage.

When everyone has assembled on the galleries, the Tuai Rumah opens the meeting by stating that its purpose is to-settle a dispute and that, while strong emotions may be involved, those taking part must act respectfully so as to restore goodwill between the litigants and their kin. In this manner the Tuai Rumah calls the attention of everyone present to the purpose of the bechara and impresses on them their overriding responsibility to preserve community order. Should the disputants, or their supporters interrupt the proceedings by talking out of turn or behaving abusively, this is dealt with at once, as disrespect toward the Tuai Rumah, and the culprits are fined and must pay up before the proceedings can continue. Such fines are called hukum tuai. Feelings often run high during a bechara, and maintaining respect for the proceedings is crucial to gaining acceptance of the decision finally arrived at.

Consistent with the further judicial ideal of utai basal gaga mit, “make large things small”, the basic purpose of the bechara is not so much punitive action, as conciliation. In handling more serious cases, “large things”, the task of the Tuai Rumah is essentially to find a solution that both parties can accept. Ideally such a solution should restore at least some degree of goodwill.

In order to achieve this it is necessary that the pertinent rules of adat be isolated and clearly stated and that the final judgment be linked to the opinions of the senior counselors and others present and be supported by the weight of former judgments. In the course of the hearing itself, each side is called upon to present its case and the evidence of witnesses is also heard. In this manner, by freely discussing the issues of contention, those who take part in the bechara are able to make an attribution of rights and wrongs, and the Tuai Rumah makes explicit use of the general consensus arrived at in this way in rendering his final judgment. As a result, it is difficult for the adversaries to reject the solution thus handed down by the bechara.

The presence of kinsmen and neighbors is also a strong restraining pressure and recognition of the fact that all must go on living together means that most settlements involve some degree of mutual concession. Also as Mr. Sandin stresses here, the Tuai Rumah and Penghulu take special pains in passing judgment to allow the adversaries, particularly those found at fault, to accept the decision with a minimal sense of personal defeat.

The basic objective of both the baum mit and the bechara is to extinguish a dispute (madam ka laya). As Heppell writes (1975: 299),

“The Iban judicial decision need not result in what a Westerner would regard as a just solution, but it does result in the adversaries openly agreeing to terms which extinguish a dispute and enables a modicum of harmony to be restored to the group.”

Thus a solution is sought to which both parties can accede. This may involve a consideration not only of justice, but of the determination and personal circumstances of those involved. Even so, the rules of adat are always important, and all decisions must be made within their framework. The headman and other elders must take care not to give advice that is contrary to adat, because any decision that they make may be used as precedent for settling similar disputes in the future. In offering counsel they are expected to cite the rules of adat that fit the case and, taking into account intent and possibly other factors bearing on the case, specify the fine or other sanction stipulated by these rules.

A common saying in the Saribas is that, “by using the staff of adat”, the tungkat adat, symbolized by the staff formerly sent out by the Penghulu to summons litigants to his court, “one is able to stay on the main path”, that is, in the path of right conduct. Thus every legal judgment should be faithful to the principles of adat. That these principles continue to work, despite the rapidly changing nature of Iban society, is itself evidence of the continuing respect in which adat is held by the Iban, the comprehensiveness of its principles and the considerable judicial skills possessed by contemporary Iban leaders in applying them to the varying conflicts that arise in everyday life.

Finally in reviewing Iban legal procedures, it must be remembered that these coexist today with a superimposed structure of state and national legal institutions. From the early decades of Brooke rule, the immediate link between the two has been the District Court. Ultimately all decisions made by local bechara may be reviewed by the District Court, while cases outside the jurisdiction of local bechara come directly under its purview. During the Brooke period down-river Iban made frequent use of the District Court, particularly in land disputes, and historically it represents a highly important legal institution to the Iban. An account of the District Court is beyond the scope of this study.

Heppell (1975: 286 and 336) presents a tabulation of cases heard in the Second and Third Division courts at different times between 1860 and 1930, based on court records, which gives a useful picture of the types of cases brought before it. However, the District Court itself is mentioned only in passing, and a systematic study of its impact on traditional mechanisms of social control remains to be made.

In the decades immediately before and after the turn of the century, the Iban came to be known as an extremely litigatious people owing to the frequent use they made of government courts (cf. Pringle 1970: 190-94; Ward 1966: 128-29). It is clear for the Saribas at least that courts were used, among other things, as an arena in which the authority of political rivals was challenged and inter community boundaries were contested in a time of rapid economic change and mounting population pressure. This is very much less true today, and it is interesting to note that the Saribas Iban now resort far less often to government courts than they did formerly. For example, in the Paku area of the Saribas, which has an Iban population of some four thousand persons, court hearings are extremely rare today, and even local bechara are infrequent; to my knowledge less than two dozen formal bechara, including longhouse bechara, have been held in the whole area since the Japanese occupation. This situation reflects, I believe, the continued resilience of adat and continuing effectiveness of the more informal process of longhouse conciliation described here. However, in the absence of a study of the District Court, it remains uncertain how wide spread these changes are among the Iban.

http://ibanpedia.wordpress.com/2013/04/10/role-of-adat/

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