PETALING JAYA: The native communities of Sabah and the peninsular states remain unaffected by a recent Federal Court ruling that defeated a bid to enable the Dayaks of Sarawak to apply native customary rights (NCR) on virgin forests, according to a retired judge.
Former Federal Court judge Gopal Sri Ram said the land laws were different for the three regions.
“The decision will not have a binding effect as Sarawak is governed by its land ordinance while Sabah and the states in Malaya are guided by their own statutes,” he said.
Last Dec 20, the Federal Court allowed the Sarawak Government’s appeal against a Court of Appeal decision that recognised “pemakai menoa” (territorial domains) and “pulau galau” (communal forest reserves) as NCR land.
The Court of Appeal had affirmed a 2011 High Court ruling in favour of Tuai Rumah Sandah and seven other landowners in Ulu Machan, Kanowit.
The Federal Court judges who allowed the state government’s appeal were Md Raus Sharif, Ahmad Maarop and Abu Samah Nordin. Zainun Ali dissented. Another judge on the bench, Abdull Hamid Embong, who heard the appeal a year ago, had retired.
Raus, who delivered the main judgment, said there was no legislation in Sarawak that gave the force of law to the Dayaks to claim customary rights over virgin forests around their longhouses.
He said the Sarawak Land Code, Tusun Tunggu (Codified Customary Laws), Iban Adat 1993 and a number of Rajah Orders recognised only cultivated land called “temuda” as NCR land. “Temuda” refers to land left fallow, on which there are secondary growths.
The judges ruled that the customs of pemakai menoa and pulau galau did not fall within the definition of law under Article 160 (2) of the Federal Constitution.
The bench held that only the custom of temuda was recognised by statute.
Zainun, in dissenting, said customs and practice were part of the law under the Federal Constitution.
The landowners sued a timber company and the state government for encroaching into what they said was their territorial domain, and hence their NCR.
The company, which was issued a timber licence by the government, argued that NCR should be restricted to the temuda, covering an area of 2,712 hectares.
Sri Ram, who once led a Court of Appeal panel that delivered a landmark judgment over NCR land in Selangor, said the dissenting judgment was correct.
“The radical title that is vested in the state is subject to customary titles, which have long been recognised in Sarawak,” he said. “The majority judgment appeared to have adopted a literal approach.”
He said the right of the natives were quasi-constitutional and should therefore be interpreted generously.
Sri Ram said there was also a presumption that written law would not deprive a person of his fundamental rights. “For the Dayaks, these rights include the customary titles to land.”
He said there was nothing to stop another native from bringing a case although the plaintiff would lose in the High Court and Court of Appeal due to the precedent set. “But the Federal Court can revisit the case and depart from the present ruling.”
He said the chance of a review of the present ruling was remote.
However, Sarawak opposition leader Baru Bian, the lawyer for the landowners, said he would seek a review.
“The next step is to urge the Sarawak government to redefine what is native customary law,” he said.
Baru has in the past tabled motions and a private member’s bill in the Sarawak assembly on the issue but these were thrown out.