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Wednesday, December 21, 2016

Review FC decision, Adat beyond Civil Courts – Dr. Jeffrey

“The Federal Court and the civil courts ought not to be the competent body to pass any judgment on Adat and Customary laws of the Borneo Natives. Instead, the Native Courts or alternatively, a separate Native Land Tribunal should be fully empowered to deal with customary land issues” said Datuk Dr. Jeffrey Kitingan, President of the Borneo Dayak Forum, a native community NGO encompassing the whole of Borneo Island and comprising members from Sabah, Sarawak, Brunei and the five provinces of Indonesian Kalimantan, in a press statement at the conclusion of the Borneo Heritage Festival held on Sunday in Hongkod Koisaan, KDCA, Penampang.

Dr. Jeffrey who is the Bingkor State Assemblyman in Sabah was expressing his opinion on the way forward following the decision of the Federal Court in allowing the appeal by the Sarawak government and ruling that the native custom of “pemakai menoa” (territorial domain) and “pulau galau” (communal forest reserve) has no force of law in Sarawak.

Dr Jeffrey
The decision effectively overturned the earlier decisions of the Court of Appeal and High Court recognizing native customary rights (NCR) of “pemakai menoa” and “pulau galau” and leaving the natives having no NCR rights over them and allowing the State government to alienate such NCR lands to anyone.

In the same decision, the Federal Court did acknowledge and recognize the native custom of “temuda” which was adjudged to have the force of law.

To the Natives in Sarawak, they have been practising their Adat and customs long before the formation of Malaysia in 1963 and even before the coming of the Brooke Adminstration in 1841. To them, it is the law that governs them in everyday life and their Adat and customs have the force of law in Sarawak as administered by the Native Courts. 

The situation is similar in Sabah, where the Natives have been governed by their Adat and customary laws long before the British administration in 1881.

In both Sabah and Sarawak, NCR over land formed the core of their Adat and customs for “Land is Life” for them.

Under the present federal system, land matters remain a State matter as provided under the Federal Constitution.  Land issues are not under the Federal jurisdiction but under each respective State.    

Therefore, NCR land issues should be governed by the respective Borneo States and under their respective Native Courts. It is only appropriate that NCR land issues be decided by the Native Courts as the final arbiter and not through the Civil Courts including the Federal Court.

Alternatively, the Borneo States should establish a separate and distinct Native Land Tribunal as the final arbiter to adjudicate on NCR land issues. 

The Native Courts or the Native Land Tribunal would be more equipped and better knowledgeable to deal with the local customs and Adat rather than the Civil Courts. Moreover, the Civil Courts especially the Court of Appeal and the Federal Court are presided mainly by Malayan and non-Natives Judges who are not familiar with the Adat, customs and native customary laws of Sabah and Sarawak. 

In addition, the National Land Code, applicable in Malaya, does not recognize NCR over land unlike the Land Ordinances in Sabah and Sarawak which expressly recognizes NCR over lands in Sabah and Sarawak.

Native land rights are further enhanced by the United Nations Declaration on the Rights of Indigenous Peoples by the General Assembly on 13 September 2007 and which Malaysia had subsequently adopted.

The Federal Court may have overlooked the local circumstances in ruling that unlike the “temuda”, the “pemakai menoa” and “pulau galau” had no force of law. In Sarawak, the Native Courts do recognize the “pemakai menoa” and “pulau galau” and would have the force of law enforceable by the Native Courts.

It does not appear logical to accept the custom of “temuda” and not  “pemakai menoa” and “pulau galau” when all are recognized and dealt with by the Native Courts and do have the force of law and jurisdiction under the Federal Constitution.

Perhaps, the Federal Court may be concerned with political ramifications or the opening the floodgates on native land issues in Malaya and possible implications on the claims of the Orang Asli there to native customary rights over their native customary lands.

This is in accordance with the definition of “law” under Article 160 of the Federal Constitution which defined “law” as “includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof”.

Accordingly, a way forward is to enhance the Native Courts, which is already under the Federal Constitution as on par with the Syariah Courts which has been enhanced and properly structured since in 1963.   

Like the Syariah Courts, the Native Courts should have their own Appeal Courts and appeal process to deal with NCR land issues without having to go through the Civil Courts. If so, when NCR land issues come before the Civil Courts, it should be declined jurisdiction and defer it to the Native Courts and their appeal process. It will be just like what many Federal Court decisions declining jurisdiction and rejected cases dealing with Syariah law and leave them to the exclusive jurisdiction of the Syariah Courts.

Meantime, there should a review of the Federal Court decision by the Federal Court with a different panel of Judges in accordance with its inherent jurisdiction to review its own decisions.

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