Part 1 Iban Adat Law and Custom
Iban Adat Law and Custom
1. IBAN CUSTOMARY LAW
In traditional Iban religion, the longhouse community is the principal congregation, or body of persons who participate in common rituals. For this reason the Iban pay careful attention to relationships between longhouse members. Children are instructed to respect their community elders and live decently in accordance with customary adat and the norms of their community. By the same token, both secular norms and ritual injunctions are closely related, and only in abiding by both may the Iban live harmoniously with one another and gain the favor of the gods and spirits.
The principal guardian of customary adat is the longhouse headman, or tuai rumah. Most longhouse headmen are descended from the pioneers of past migrations who originally settled the area in which the community over which they have authority is located. The responsibility of the headman is to look after the affairs of his anak-biak, or followers, and, as a matter of course, he is expected to know every aspect of customary adat. If a dispute is referred to the headman, he will attempt to settle it with the help of the Tuai Umai or Tuai Burong (the farm leader or augury expert, respectively), and other village members who are well versed in customary adat. The Tuai Burong is an expert in various kinds of augury as well as being well versed in the genealogies and history of his community.
The fines (tunggu) imposed by the Tuai Rumah are different in value from the fines imposed by the district chief (penghulu) and District Court magistrates. In Sarawak’s Second Division, the Penghulus can impose the following fines:
Name of fines with their value ($)
Sauta – 0.25
Sigi menukol – 0.50
Sigi jabir – 1.00
Sigi panding – 2.00
Sigi alas – 3.00
Sigi alas ngerang – 4.00
Sigi alas barejang – 5.00
Sigi alas betandok – 6.00
Sigi rusa – 7.00
Sigi menaga – 16.00
Sigi ningka – 32.00
If the offence is the most serious form of incest, which is believed to cause disaster to the land and its inhabitants (ngudi menoa), the Native District Court magistrates, with the recommendation of the Penghulu, can impose a fine of one and a half piculs each on the two offenders. In other Divisions in Sarawak, all fines imposed by both Tuai Rumah and Penghulu are reckoned in mungkul. The value of a mungkul is one dollar ($1.00).
For the least serious cases, the Tuai Rumah may impose fines in the form of eggs (telu manok), nails (paku lawang), cups (mangkok), plates (chapak) and bowls (pinggai). Such minor fines are called sa-uta iring manok and are generally paid by the friends and relatives of the disputants. The fines imposed by the Tuai Rumah for more serious offences are as follows:
In the remote areas in Sarawak, the Iban still pay fines for minor cases at fifty cents for a jabir, the value of which is normally one dollar. This rate of equivalence is in strict accordance with the ancient value decreed by the Brunei regime before the beginning of Brooke rule in 1840. The Iban call it “Jabir Iban” in contrast to “Jabir Perintah”. Fines were traditionally the property of the Tuai Rumah or were distributed by the headman among those who took part in the judgment.
In addition to the imposition of fines in cash, if the offence is a major one, that is, if it provokes kudi, the wrath of the gods and spirits, the offenders are required to sacrifice one to two sows (babi sepa) or two male pigs with tusks (babi tumboh taring). The blood of these animals is used to purify the land and water against the sin committed. Besides this, the offenders are also requested to produce a knife (duku), a small jar (kebok) and an iron adze (beliong)*. The kebok is given to the Tuai Rumah and the duku and beliong are given to the man who kills the pig or pigs.
In ancient times if a hunter killed another man by mistake, the killer was required to compensate the deceased’s relatives with pati nyawa compensation of two valuable old jars. Failing to pay this, the killer was surrendered to the deceased’s family to become their servant (jaum). His descendants after him remained servant of the deceased’s family unless they liberated themselves by paying compensation or were voluntarily freed by their owners.
If a warrior killed his fighting mate by mistake while on the warpath, the killer must also pay pati nyawa compensation of two valuable old jars to the deceased’s family. Failing to pay this, he must surrender himself to become their servant together with his descendants.
When the Tuai Rumah learns that a serious offence, such as adultery, has been committed, he must sacrifice a chicken at once. The significance of this sacrifice is that it calls public attention to the offence and indicates that it is now under formal juridical review, and that the parties involved are no longer permitted to resort to private vengeance or self-help. He must act at once, as any delay might result in bloodshed, in which case the Tuai Rumah himself is liable to be fined. Traditionally an injured husband or wife had the right to retaliate in the case of adultery provided the adulterous couple were found inflogran te delicto and the retaliation was carried out at once.
BEGAU ENGGAU PANGGIL (ALARM AND CALL)
Before the use of writing, the Penghulu and other Iban leaders had traditional means of calling together persons to attend legal hearings and for other reasons, particularly to assemble war parties.
In ancient times, when a war leader wanted to lead his people in war, he usually sent an urgent temuku tali (“ string with knots”) to call together his warriors. Attached to each string was a chicken’s feather and small piece of half-burnt wood. The meaning of these articles was that the message carried by the string must be transmitted in a great hurry and quickly relayed from one longhouse to another day and night, till it reached its final destination. Feathers are said to symbolize the swiftness of flight and the half-burnt wood, the torches to be used at night in carrying the message from one longhouse to another. The message itself was transmitted verbally. Each knot in the string signified one day and had to be untied each morning by the recipients. On the day when the last knot was untied, all the warriors who had armed themselves would arrive at the warleader’s longhouse to join the war expedition.
If a chieftain summoned anyone to attend his court, he also sent them a string, but with knots only. One knot has to be untied each day by the recipient; and on the day he untied the last knot, he had to attend the court as requested. The same method is still used in the remote areas in Sarawak to call guests to attend festivals.
The other method used by ancient war leaders to summon their warriors was to send their most trusted warrior from one longhouse to another, with a sharp spear (sangkoh) heavily decorated with the hair of enemies. On arrival at each fighting man’s longhouse, the bearer of the spear informed his comrades-in-arms that they were requested to join the warpath on a certain day. On receiving this message, each warrior started to arm himself with weapons such as nyabor, langgai tingang, surong bila, ilang and pedang swords; terabai (shield), sumpit (blowpipe), sangkoh, bujak, perambut and berayang spears. A day or two before the war party was due to set out, all the fighters assembled at the war leader’s longhouse, sufficiently provisioned by their wives with rice and cakes. These methods of calling people to war ended in about 1900.
From 1900 to about 1922 when a Penghulu wished to call for someone to attend his court he dispatched his official labong (turban), which was relayed from one longhouse to another till it reached the person concerned. After this, a new method of calling people was for the Penghulu to send an official tungkat (rattan stick) with a symbol of the Rajah’s crown on the top of the stick. This official stick was sent from one longhouse to another till it reached the person being summoned.
If the message was an urgent one, a chicken’s feather and a small half-burnt piece of wood were tied to it, so that it would be relayed by day and night from one longhouse to another without delay.
If a longhouse failed to relay the official tungkat, its headman was fined five katies (M$3.60) by the Penghulu. Failure to pay this fine was punishable by four months in jail.
From 1930 onwards the official tungkat from the government or from the Penghulus were made from a 4” x 2” x 1” piece of wood with a letter attached to them, and were also sent like the earlier tungkat from one longhouse to another till they reached their destination. In the present era the use of the tungkat has been abolished which, if I may say so, gives the impression that the authority of the government has lessened.
If an individual feels he has a grievance against another person which cannot be settled privately by the two of them, he may call upon the Tuai Rumah and request that the headman judge (di pechara) the case of convening a formal hearing (bechara).5 Before he calls a bechara, the Tuai Rumah will ordinarily attempt to bring about an amicable reconciliation by calling the two parties to a small private meeting (baum mit or berandau). The Iban make a clear distinction, in this connection, between a bechara, a formal hearing in which a judgment is rendered, and a baum mit, literally, “a small meeting”, in which the Tuai Rumah or another community leader acts simply as a convener and impartial mediator. Occasionally the Tuai Rumah may act on his own initiative in calling a meeting, without being first requested by others to intervene, should a grievance or breach of adat come directly to his attention. As a general rule, every Iban Penghulu and Tuai Rumah proceeds to convene the hearing based on the basic principle:
Utai besai gaga mit; Utai mit gaga nadai.
Make large things small; A small thing becomes nothing.
In other words, every leader must attempt to resolve disputes in such a way as to assure a maximum degree of consensus between the principals involved, and, if the matter is a petty one, that is “a small thing”, he seeks, through private meetings, to make it “nothing”, and so avoid public litigation. In a petty case, the Tuai Rumah may even offer to compensate the aggrieved party himself, or may encourage the friends or relatives of the disputants to do so, in the interest of bringing about a quick and mutually acceptable resolution of differences.
There is an additional saying, which the Penghulu or Tuai Rumah may cite, namely, that the law is like a cobra (adat baka tedong): it is harmless, if undisturbed, but if stepped upon, it may bite; that is to say, a person who insists upon litigation runs the risk of being found in the wrong and fined (i.e., “bitten by the law”).
However, if a case cannot be settled informally, the tuai rumah will then call a bechara. A time is set and the two parties are notified, witnesses and members of every family in the community are informed, and, if necessary, messengers are dispatched to call people back from their farms. On the appointed evening, after dinner, the tuai rumah spreads mats on his section of the gallery (ruai). As people gather, the principal disputants are called forward and made to sit facing each other before the tuai rumah and senior family heads. The tuai rumah then calls upon the disputants to present their accounts, beginning first with the plaintiff. After each party has spoken, the testimony of witnesses (saksi) is given and discussion is open to questions. Finally, after each side has stated its case, the hearing is opened to a general discussion which continues until the tuai rumah is satisfied that the issues involved in the dispute are clear and that each party has had an opportunity to air its case fully. He will then call upon several of the elders present to express their opinions. In stating their views, the elders, who are recognized for their knowledge of adat, are expected to cite precedent and draw parallels with previous judgments made in similar cases by former headmen and regional leaders.
Having heard the views of the elders, the tuai rumah proceeds to make is judgment. In doing so he carefully cites the rules of adat relevant to the case and, upon the basis of the courts’ deliberations, judged one party or the other to be at fault. He then sets the fine to be paid by the party he finds in the wrong, fixes the time in which payment must be made, and informs the party of its right to appeal against his verdict to the Penghulu’s court.
If one of the disputants is dissatisfied with the Tuai Rumah’s judgment he may lay the matter before the Penghulu. As a rule, the Penghulu will only agree to hear a case that has already been heard by the plaintiff’s tuai rumah that is to say, the regional chief accepts cases only on appeal, after he has been assured that the matter has been heard in the disputants’ home community.
If the Penghulu agrees to review a case, he sends out his official tungkat to notify the two parties, their tuai rumah and witnesses, so that they may all be present on the day fixed for the hearing. He will also call upon elders from his own community to be present to assist him in judging the case. Saribas adat stipulates that a Penghulu must be assisted by at least two elders to insure the impartiality of the courts’ judgment and he may seek the advice as many others as he likes. The deliberations ordinarily begin in the morning, but are otherwise similar to those of the tuai rumah ‘s court, except that after the two parties and their witnesses have stated their case, the Penghulu will call upon the tuai rumah for their opinions. In rendering a final judgment, the Penghulu will choose his words carefully so as not to anger the party he finds in the wrong. He will specify clearly the reasons by which he arrived at his verdict, saying that in accordance with the views of the elders and the recognized rules of adat, he is compelled to levy a fine, which he then fixes, upon the party at fault. Again, the litigants are informed that they may lodge an appeal with the District or Native Court within two weeks. Otherwise, he declares the matter settled.
Both the Tuai Rumah and Penghulu, as we have said, will ordinarily attempt to persuade the parties in any dispute brought to their attention to resolve their differences privately, or, if this is not possible, they will seek to contain the dispute and prevent it from developing into serious litigation in accordance with the principle of making what is large, small. There are a number of pressures on the disputants that favor their efforts. For one, the disputants will frequently not wish to have their dispute made public, and, if the guilty party knows that he is in the wrong, he may simply pay a fine directly to the Tuai Rumah in order to avoid the embarrassment of an unfavorable bechara.6 Also the severity of fines increases as cases move from the Tuai Rumah’s court, through the Penghulu’s court, to the Native or District Court, and this, too, discourages needless appeals. This is not to say, however, that the principles of adat are not important to the Iban, for a common saying is “that by traveling with the adat stick”, the tungkat adat, “one is able to stay to the right course”, that is, in the path of right conduct. However, the principles of adat must be tempered by common sense in the overriding interest of maintaining harmonious relations. (“When you sleep, let memory be your pillow, when you travel, let adat be your walking stick” meaning “Enti tindok, bepanggal ka pengingat, enti bejalai, betungkat ka adat”.)
If either party knowingly fails to appear, after having been summoned to the court, he or she is liable to fine. The matter is generally treated as an insult against the man empowered to hear the case. Refusal to attend the Tuai Rumah’s court carries a fine of sigi jabir and failure to answer the Penghulu’s summon is fine, five katies. Those who show contempt of the court, by disturbing the Proceedings, or by verbally abusing the judge after having been found at fault, are also liable to fine. Anyone guilty of behavior disrespectful of the court, is fined at once, before the hearing is allowed to continue.
In the past a dispute might be settled, or an accused individual might seek to establish his innocence, by means of a formal contest or ordeal. Traditionally the Iban performed four types of ordeals:
1. Kelam ai or selam ai, a diving contest in which the victor was the man who remained under the water longest. Generally the disputants engaged stand-ins to champion their case and wagers (entaroh) might be staked on the outcome. Elsewhere (Sandin 1957: 125-27, and 1971: 28-29) I have discussed diving ordeals in some detail and recorded the legendary origin of this type of legal contest. The last known diving contest in Sarawak occurred during the Japanese occupation between those accused of the murder of Mr. G.R.H. Arundell and his family at Lubok Antu and their principal accuser and the outcome was cited in the later military trial of the accused in early 1948.7 In the past the most common issue settled by selam ai concerned hereditary rights of ownership over fruit groves and bee trees.
2. Nyelam, literally means “to dive”, but, in this case, it is used to describe a cockfight organized to settle a dispute. Disputes settled in this manner are ordinarily those that arise in connection with a cockfighting contest (ba maia nyabong manok), particularly disputes over bets (tui or entaroh) or over the outcome of a contest, and when they occur, they are prescribed by the tuai sabong, the cockfighting leaders. Nyelam is the only form of contest that is still practiced by the Iban.
3. Bachelok betong, an ordeal in which the disputants dipped their hands into boiling water inside a bamboo, with victory going to the one who was able to keep his hand longest in the water.
4. Bachelok api, a contest, otherwise identical to bechelok belong, in which the disputants thrust their hands into a fire. In the late 1920′s the Brooke Government officially disallowed all forms of ordeals and today they no longer form part of the legal procedures of the Iban. They are mentioned here for their historical interest.
In earlier centuries, when a dispute over land arose between different communities, and neither side would voluntarily agree to withdraw its claim, the matter might be settled by a fight in which the two sides were allowed to use only wooden clubs. This conventional contest was called batempoh. The side that lost the fight was compelled to withdraw its claim and the contested land was awarded to the victors. Although only wooden weapons were used, these contests were serious affairs. If a man was killed during the batempoh, the leader of the party to which he belonged was required to compensate the deceased family with a valuable jar. This was one of the reasons why a successful leader in the past must be a man of wealth. Jars were formally pledged before the contest began and a leader’s followers or hired champions would join his side only with assurance of compensation for loss of life.
The batempoh required long preparation and was conducted under strict rules. Before it could take place, the contest had to be sanctioned by all of the leaders having authority within the larger region in which the contesting communities were located in order to prevent it from developing into open warfare, particularly should deaths result. These leaders also determined the time and place of the contest, negotiated the precise terms of its outcome, witnessed the agreement of the two parties to these terms, supervised and judged the contest itself and enforced strict compliance with the terms of the contestants’ prior agreement. Despite these safeguards, the likelihood of bloodshed and the possibility of internecine warfare arising from a batempoh were clearly recognized and leaders in the past sought to persuade the disputing parties to submit their claims to mediation, rather than resort to combat. As a result, very few actual cases of batempoh are known to have occurred. Among the Saribas Iban there are only three known instances in which a resort to clubs was proposed and in each of these cases the danger was averted and the dispute was eventually resolved through mediation, without a contest.
The last such occasion occurred in the latter half of the 19th century when the Paku leader Adir “Bungkok” discovered that Iban from the Bangkit tributary of the main Paku River had crossed the watershed dividing the two rivers and were farming lands at Ulu Ketunsong, a branch of the Pelawa stream (cf. Sandin 1967: 42). Adir and his son-in-law, Linggir “Mali Lebu”, pledged one menaga jar each, while four additional jars were pledged by other Paku leaders. But shortly before the batempoh was to take place, a minor leader named Kerbau succeeded in persuading the Bangkit people to return voluntarily to the other side of the watershed. For his diplomacy, Kerbau was rewarded with one rusa jar.
In the past the Iban also recognized a form of private self-help called bepalu by which a cuckolded husband might retaliate upon a rival guilty of adultery with his wife by the use of a club or other wooden instrument. Unlike betempoh, which represented a public contest between disputing communities, bepalu was a form of personal, or private retaliation in which the injured party took action directly against an adversary, usually by stealth, with the intent of administering a sound beating.8 But the procedure was also dangerous. Fatalities sometimes resulted and occasionally led to counter retaliation. The early Brooke government suppressed the convention by severely fining those who resorted to it.