Saturday, January 3, 2009


Trial by ordeal of water


The Chief Justice of Sabah & Sarawak, Tan Sri Richard Malanjum said that Native Courts must re-examine their entire system and undergo a transformation to remain relevant to natives in Sabah, when delivering his keynote address in conjunction with the three-day District Chiefs and Native Chiefs conference that began last Tuesday at Kota Kinabalu.

Among his suggestions was for the setting up of a Native Law Centre or Institute to provide a platform for the study of native laws and customs and finding ways of preserving them. He noted that, interestingly, there have been moves to encourage the revival of native laws of indigenous people in other countries such as Australia, New Zealand, the African states, Canada and even the United States.

Maybe one reason why there seems to be a decline in the cases registered with the Native Courts is due to the absence or difficulty in getting reference materials by would-be litigants of Native Courts, he said, adding the Internet as a medium of communication must also not be ruled out.

"The world has become a global village and the catchwords for survival and success is 'either adapt or perish'. I hope the time will never come when the theme of this conference is: Are native laws and customs relevant and necessary to natives of Sabah?," he said.

The conference, he said, was critical as it provides the forum to determine the current position on native laws and customs including their usage and relevance to the present generation of natives.

"I would add that if this conference could be held yearly it could also be considered as the Native Law Advisory Council with the main function of giving advice to the authority that manages the affairs of the Native Courts.

Such a body existed even during the rule of the Charted Company," he said.


If we look at the Charter for the creation of the British North Borneo Company we can see that the British formally recognized the protection of the native way of life, religion and custom. We reproduce the relevant extracts: of the Charter:-

Petition granted to the British North Borneo Company, Westminster, November 1st, 1881
VICTORIA, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith:
TO ALL to whom these presents shall come, greeting.

NOW THEREFORE WE, having taken the said petition into Our Royal consideration in Our Council, and being satisfied that the intentions of the Petitioners are praiseworthy and deserve encouragement, and that the enterprise in the Petition described may be productive of much benefit to Our dominions and to many of Our subjects, by Our Prerogative Royal and of Our especial grace, certain knowledge and mere motion, have constituted erected and incorporated, and by this Our Charter for Us and Our heirs and Royal successors do constitute erect and incorporate into one body politic and corporate, by the name of the British North Borneo Company, the said Alfred Dent, Sir Rutherford Alcock, Richard Biddulph Martin, Richard Charles Mayne, and William Henry Macleod Read, and such other persons and such bodies as from time to time become and are members of that party, with perpetual succession, and a common seal, with power to alter or renew the same at discretion, and with the further authorities, powers, and privileges conferred, and subject to the conditions imposed by this Our Charter; and We do hereby accordingly will, ordain, and declare as follows (that is to say):

8. The Company as such, or its officers as such, shall not in any way interfere with the religion of any class or tribe of the people of Borneo, or of any of the inhabitants thereof.

9. In the administration of justice by the Company to the people of Borneo, or to any of the inhabitants thereof, careful regard shall always be had to the customs and laws of the class or tribe or nation to which the parties respectively belong, especially with respects to the holding possession transfer and disposition of lands and goods, and testate or intestate succession thereto, and marriage, divorce, and legitimacy, and other rights of property and personal rights.


It is interesting to know that it in Sabah it was the Native Courts that abolished the cruel and outdated judicial method of trial by ordeal. Not many people are aware of this because as pointed out by Tan Sri Richard Malanjum there are insufficient records of reports on Native Law cases. But first what is trial by ordeal? The medieval mind was firm about justice. To them, God's plan was for a peaceful world free of sin, and it was the duty of all God's people to make it so. Wrong-doing required both reparation and punishment. Reparation was usually a payment of money to victims and their families, or to the king. Punishment was often designed to deter others, but to leave the sinner alive and able to repent. Hence the tendency to chop off hands, feet, and/or genitals.

In a time when everyone knew everybody around them, catching criminals wasn't a high art except in the rare case when a crime was committed by an outsider. For this reason, strangers were regarded with deep suspicion, and crimes of stealth, no matter who committed them, were punished most severely. "Murder" was reserved for a crime of stealth, and was punished more severely than a mere killing in a fight or feud.

However, sometimes guilt wasn't clear, and in these cases ordeal was used to settle the matter. Ordeal was by means of hot iron, cold water, or battle, and was a strict ritual administered by the Church. In fact, it almost became a sacrament along with baptism, marriage, and extreme unction.

In ordeal by hot iron, the accused person had to grasp a red-hot rod and carry it a fixed distance. The burn was then bound and inspected in three days. If it was healing, God had shown that the person was innocent. If it had begun to fester, then they were guilty.

Rather preferable, perhaps, was ordeal by cold water. The accused was tied up and lowered into the water on a rope. If he sank, he was innocent. No, he wasn't left to drown, but hauled out still able to celebrate. If he floated, he was guilty and dragged off for punishment.

Ordeal by battle was much rarer, but it wasn't reserved for nobles and knights. It was most often used when two people accused each other of crimes, or as a kind of civil prosecution when the law wasn't clear. This lingered as the duel, and in fact was still a possible judicial solution in England until 1819.

In ordeal by battle, or a court battle, the men fought to the death, no holds barred. The weapon was usually a stick, and it soon became a wrestling, gouging, stomping brawl. However, there are instances of more knightly duels with swords.

There were stories of duels between children and mighty warriors, and actual cases where a weak man defeated a strong. It was even possible for a woman to challenge a man, in which case the man was buried up to his waist in the ground as a handicap.

Ordeal by cold water is even more interesting. People being tested by cold water were male. That's because this test was never done on women until the much later witch-hunting period. Men generally have a much lower ratio of body fat than women and in modern studies it has been shown that a bound man rarely floats in cold water unless he's notably fat.

A guilt factor can enter in, of course. With hot iron, moisture on the skin might make a difference, so a guilty person's clammy hands might be disastrous. With water, a fit man can float if he has a lot of air in his lungs. Guilt might lead to panic, which might lead to sucking in extra air. In one case, an abbot was implicated in a crime and set to undergo the ordeal by cold water. He repeatedly checked himself out in a big tub of water to be sure he would sink. Every time, he did.

Come the day, however, he floated. Presumably, panic caused him to suck in breath. Was his panic caused by guilt, and by his belief that God knew his secrets? We'll never know.

His panic is understandable, however, because he chose the ordeal. Anyone always had the option of confession, and the civil powers preferred this. The Church also approved, since it was the step to repentance and salvation. Therefore, the penalties for those who underwent an ordeal and failed were harsher than for those who confessed.However, for many reasons, ordeal fell into disrepute. The jury system had always been around, and in 1215 ordeal by hot iron or cold water was forbidden by the Pope and judgement by one's peers became the norm.


In Sabah we owe it to the Native Courts system for the formal abolishment of trial by ordeal in 1960 by the Native Court of Appeal case between Lagundi bin Koh/ Lusiah bin Lagundi as the Appeallants and Regina(The Crown) as the Respondent.The date of Judgment:was 7th October, 1960..The brief facts were that Lagundi was the stepfather of Lusiah. As a result of the pregnancy of the stepdaughter he was charged for incest. Allegations were made that he slept in the same mosquito net and went to dig tapioca in the garden with the stepdaughter. He denied all the allegations. Lusiah had named as the father another person who had been convicted and fined. Evidence of an ordeal by water was given in that whereby Lagundi and a younger person took part. Lagundi came out of the water first and was declared to have committed incest. Following this Lusiah was compelled to confess the incest. On such evidence the Native Court convicted them imposing on each fine, sogit and imprisonment. Further it was ordered that they be banished from the village. The District Officer upheld the conviction but reduced the fine and imprisonment. The Native Court of Appeal quashed the conviction and ordered that any sums paid by way of fine or sogit be refunded.
(1) That a confession must be free and voluntary.
(2) That a crime must be proved by clear evidence and not by result of an ordeal by water.
(3) That the use of ordeal by water to elicit the truth of a matter was tc be deprecated and should be discontinued.

SMITH. J. delivered the judgment of the Court:—
The appellants, Lagundi bin Koh and his daughter, Lusiah binte
Lagundi. were convicted by the Native Court at Lamag of having committed incest. The complainant was Tamah bin Jualan, the stepson of Lagundi. An appeal to the District Officer, Sandakan, was dismissed but that Court considerably reduced the penalties imposed by the Native Court. The District Officer imposed the following penalties : —
(a) Fine of $150.00 or three months’ imprisonment in default of payment;
(b) One year imprisonment with effect from 16th January, 1960;
(c) Sogit ($150.00) to the Kampong; and
(d) Banishment.
(a) Fine $75.00 or one month’s imprisonment;
(b) Six months’ imprisonment;
(c) $100.00 sogit to the Kampong; and
(d) Banishment.
Before the Native Court the procedure was as follows:
Tarnah made a statement alleging that : —
(a) Lagundi had slept in the same go hang (boat) with his daughter;
(b) They had slept together under the same mosquito net in their house;
(c) No third person accompanied them when they go to the fields to dig up vegetables.
Lagundi’s reply was that there were other people in the go hang, that his wife was also under the same mosquito net when they slept together, and that a boy named Aiui accompanied them when they went to dig tapioca. Lusiah also denied the charges. Then Tamab and Lagundi were both submerged in water. As Lagundi came to the surface first he was declared to be the loser. Orang Tua Usop, Orang Tua Tamalus and Imam Idris witnessed this ceremony. Then the question was put to Lusiah in this way. “You Lusiah now that the swearing by dipping has been performed before the people and the Orang Tuas of the Kampong and you have lost, try to remember whether you have committed incest with your father. And where was the offence committed?” And Lusiah answered:
“We have lost in the dipping. It is true that we committed incest but I ask for the consideration of Government.” At the hearing of the appeal Lusiah withdrew this confession and stoutly maintained her innocence.
This court is of opinion that before a person may be found guilt of a criminal offence there must be some clear evidence, implicating the accused, given to the court by a responsible witness or witnesses. Tamah’s complaint seems to this court to have amounted to no more than that Lagundi contravened the adat by sleeping in close proximity to his daughter. He expressly said that he did not see them committing incest. Tamah and Lagundi then underwent the dipping-in water contest. This case was, in fact, decided on the result of that contest. This court is clearly of opinion that this method of eliciting the truth is entirely to be deprecated and should be discontinued. As one of the assessors assisting me on this matter Orang Kaya Kaya Ugi very pertinently remarked: “The test is obviously unfair because a younger man, having as a rule stronger lungs than an older man, is much more likely to win the contest.” Similar practices were abandoned in England about six hundred years ago, except ordeal by battle which remained in force theoretically till 1818.
This Court also regards the alleged confession of Lusiah as unsatisfactory because it was not freely and voluntarily made. The Court put a strong suggestion to Lusiah and then she agreed.
This Court therefore, thinks that the conviction for incest both in the case of Lagundi and Lusiah should be quashed and orders accordingly. Any sums paid by way of fine or sogit must be refunded.