Sarawakian Malays have NCR rights too, says court
KUCHING: The Kuching High Court yesterday handed down yet another landmark decision when it recognised the native customary rights (NCR) of Malays in the state over land.
In passing his judgment, Justice Linton Albert said that Malays in Sarawak have “customary rights over land as well as over swampy areas surrounding their NCR land”.
Their rights, he said, are similar to that of the Dayaks’ “pemakai menua” (territorial domain) and “pulau galau” (communal forests) where they forage for food and timber for their use.
Reading his decision, Albert said that the acquisition of NCR land has lately gained prominence and consistently recognised by the appellate courts.
“It is well defined and firmly established and it is an integral part of the corpus of our substantive laws. Evidence of the Malay custom, practice and tradition since time immemorial of acquiring native customary land which the Malays called ‘tanah pesaka’ by being the first to make a living or eke out a livelihood from nipah and mangrove forests which cover the area where they settled was undisputed and controvertible," Albert said.
He said the nipah palm and the mangrove forests in the neighbourhood of the villages afforded the Malays their livelihood.
Malays, he said, collected edible living creatures found in the swampy ground of these forests namely crabs, clams, snails while the nipah leaves gathered were for roofing materials and mangrove wood for charcoal and these were a few of the natural bounties presented to the Malays.
“I am satisfied that on the evidence adduced and tested against the statements of the law set out in the Madeli Salleh case, the plaintiff has succeeded on the balance of probability that the original claimants who transferred their native customary right land to him under the agreements had acquired native customary rights to land prior to Jan 1, 1958, the date when the Land Code came into force.
“In the light of the pronouncements in the Madeli Salleh case, the structures imposed on the creation of native customary rights under the Land Code upon which the first defendant (superintendent of Lands and Surveys Kuching Division) and second defendant (state government of Sarawak ) rely on and in respect of which their witnesses took pains to amplify have no application and it is therefore unnecessary to embark on a judicial scrutiny of the relevant provisions purporting to prohibit the acquisition of native customary rights over land referred to by their learned counsel.
“Reliance by the learned counsel for the first and second defendants on a passage in 'Superintendent of Lands and Surveys Bintulu against Nor Anak Nyawai and others' is woefully misplaced... that there were also self-serving testimonies by some of the respondents what should carry little or no weight is the absence of some other credible corroborative evidence.
“Clearly the testimonies of the witnesses for the plaintiff were not wholely self-serving. Indeed their testimonies were supported by documentary and other independent evidence in the form of the 65 agreements and the testimony of PW7 (Dr Claus-Peter Gross) which are vital in tipping the balance in favour of the plaintiff, " Albert said.
Settled existence
He noted that it was an “indisputable historical fact” that the Malays of Sarawak had lived a settled existence along the coasts and lower reaches of rivers well before the marauding Dayaks, mostly Sea Dayaks who are now commonly referred to as Ibans, came from across the border in Kalimantan and cleared vast tracts of forests for their slash and burn practice of farming in the hilly interiors of Sarawak.
“And until headhunting was totally eradicated during the colonial era, the Dayaks were predisposed to move constantly either as hunters or hunted and in so doing they fell even more areas of primary forests for the hill padi farming," he said.
The Malays, he added, were not so wasteful and destructive; their settled existence meant that they had to practise some form of sustainability which precluded destruction of existing area, hence the absence of large cleared areas in the serial photographs, he said.
The judge quoted various authorities to support his decision which is in favour of the plaintiff.
The plaintiff, Mohd Rambli Kawi, was represented by See Chee How and Baru Bian of Baru Bian Advocates, while the Superintendent of Lands and Surveys Kuching Division and the state government of Sarawak were represented by Joseph Chioh of the State Attorney-General Chambers.
Maisarah Juhari represented the Federal Lands Commissioner.
KUCHING: The Kuching High Court yesterday handed down yet another landmark decision when it recognised the native customary rights (NCR) of Malays in the state over land.
In passing his judgment, Justice Linton Albert said that Malays in Sarawak have “customary rights over land as well as over swampy areas surrounding their NCR land”.
Their rights, he said, are similar to that of the Dayaks’ “pemakai menua” (territorial domain) and “pulau galau” (communal forests) where they forage for food and timber for their use.
Reading his decision, Albert said that the acquisition of NCR land has lately gained prominence and consistently recognised by the appellate courts.
“It is well defined and firmly established and it is an integral part of the corpus of our substantive laws. Evidence of the Malay custom, practice and tradition since time immemorial of acquiring native customary land which the Malays called ‘tanah pesaka’ by being the first to make a living or eke out a livelihood from nipah and mangrove forests which cover the area where they settled was undisputed and controvertible," Albert said.
He said the nipah palm and the mangrove forests in the neighbourhood of the villages afforded the Malays their livelihood.
Malays, he said, collected edible living creatures found in the swampy ground of these forests namely crabs, clams, snails while the nipah leaves gathered were for roofing materials and mangrove wood for charcoal and these were a few of the natural bounties presented to the Malays.
“I am satisfied that on the evidence adduced and tested against the statements of the law set out in the Madeli Salleh case, the plaintiff has succeeded on the balance of probability that the original claimants who transferred their native customary right land to him under the agreements had acquired native customary rights to land prior to Jan 1, 1958, the date when the Land Code came into force.
“In the light of the pronouncements in the Madeli Salleh case, the structures imposed on the creation of native customary rights under the Land Code upon which the first defendant (superintendent of Lands and Surveys Kuching Division) and second defendant (state government of Sarawak ) rely on and in respect of which their witnesses took pains to amplify have no application and it is therefore unnecessary to embark on a judicial scrutiny of the relevant provisions purporting to prohibit the acquisition of native customary rights over land referred to by their learned counsel.
“Reliance by the learned counsel for the first and second defendants on a passage in 'Superintendent of Lands and Surveys Bintulu against Nor Anak Nyawai and others' is woefully misplaced... that there were also self-serving testimonies by some of the respondents what should carry little or no weight is the absence of some other credible corroborative evidence.
“Clearly the testimonies of the witnesses for the plaintiff were not wholely self-serving. Indeed their testimonies were supported by documentary and other independent evidence in the form of the 65 agreements and the testimony of PW7 (Dr Claus-Peter Gross) which are vital in tipping the balance in favour of the plaintiff, " Albert said.
Settled existence
He noted that it was an “indisputable historical fact” that the Malays of Sarawak had lived a settled existence along the coasts and lower reaches of rivers well before the marauding Dayaks, mostly Sea Dayaks who are now commonly referred to as Ibans, came from across the border in Kalimantan and cleared vast tracts of forests for their slash and burn practice of farming in the hilly interiors of Sarawak.
“And until headhunting was totally eradicated during the colonial era, the Dayaks were predisposed to move constantly either as hunters or hunted and in so doing they fell even more areas of primary forests for the hill padi farming," he said.
The Malays, he added, were not so wasteful and destructive; their settled existence meant that they had to practise some form of sustainability which precluded destruction of existing area, hence the absence of large cleared areas in the serial photographs, he said.
The judge quoted various authorities to support his decision which is in favour of the plaintiff.
The plaintiff, Mohd Rambli Kawi, was represented by See Chee How and Baru Bian of Baru Bian Advocates, while the Superintendent of Lands and Surveys Kuching Division and the state government of Sarawak were represented by Joseph Chioh of the State Attorney-General Chambers.
Maisarah Juhari represented the Federal Lands Commissioner.
Related Info
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- Sekolah Rakyat, Sarawak - Malaysian Historical Society Sarawak
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8 comments:
" Evidence of the Malay custom, practice and tradition since time immemorial of acquiring native customary land which the Malays called ‘tanah pesaka’ by being the first to make a living or eke out a livelihood from nipah and mangrove forests which cover the area where they settled was undisputed and controvertible," Albert said.
- Oh yah? Since 'time immemorial'? What about other races - the 3rd, 4th generation Chinese and Indians who had been there just as long?
Isn't NCR an intent for the indigenous race, the original natives of Sarawak?
Btw how much more 'rights' do the Malays need? ...or is it applicable only to umno/BN Malays? The sooner they get out of their crutch-mentality, the better it is for them otherwise for the next 100 years they will still not be able to stand on their own two feet!
Think through the whole context there in what Judge Albert is saying and the political implications of contemporary local politics.
You should read up on Chinese imperialism at Santubong! ;-))
But that's another story and bad history is being reassembled right now!
Jong dear, ease up on the 'crutches' thingy lah.
It's not that the dUMNOputras do not realise this but it's much easier to make hay while the sun shines, living off the fat of the land and the sweat of the Nons. Nothing comes free, their children and grandchildren will surely reap the misery later when they find themselves illprepared and noncompetitive.
["...Btw how much more 'rights' do the Malays need..."]
In this case, it's plain abuse by the Malays on the Malays. The ruling Malays have deprived the Malays!
Is that something nice? Or is it?
For the Malays to know and which legal trespasses have been committed by the Government which oppresses everyone to save and protect the Malays?
No community should be silent and remain oppressed, against the very rule of law that this nation stands on.
NCR is a very universal notion. Even the US recognizes "native rights" but blaming native rights will not solve any problems.
Very many lessons beg to be continually learned. Poverty knows no ethnicity. There are poor Chinese and Indians, too. And as well, very poor Malays and Dayaks. Helping our poor Dayak and Malay brothers will eventually help ourselves and every poor bugger even if he comes from outer space. That is if we can stop thinking that we are Gifts of God. If you're a divine gift, you have heavenly permission to perhaps do just about everything, including maybe being worshipped as a lesser God?
The UMNO/PBB BN Malays and their special Malay Brothers in the coalition, in-law or out-of-law, Son-in-Law, Daughter-in-Law or whoever they are, are very afraid that the false unity of the majority of the Malays will be the only thing that keeps the gravy train rolling. We'll if the Chinese have already started helping their Malay and Dayak Brothers, never fear, they'll be helping themselves. But this HELP must be to free the Malays and all able bodied Malaysians so we can rebuild this country.
This strange multiculturalism in Malaysia means that you can keep your beliefs but make sure other's beliefs are safeguarded as its death will mean your own death and detriment.
The irony is, those who pay the most taxes to the country - the Chinese and Indians have the least rights and privileges but they remain as resilient and competitive as ever, not complaining, while the looters turn out to be among the privileged bunch. Greed, what a shame!
I agree, Jong!
And Chua Soi Lek and Samy Vellu are helping to rob from their own Chinese and Indian friends even when they are sleeping.
Let's get rid of all these people! If the Malay politicians led by Malay Najib can rob the Malays they won't stop at orangutans and hornbills in Sarawak jungle!
They have no shame. They are just waiting to be "poxed" out! :-))
Salak,
Those bastards stop at nothing! Now they are after natives children! Read this...
http://freemalaysiatoday.com/fmt-english/politics/sabah-and-sarawak/13539-native-kids-being-classified-as-melayu
They are taking advantage of the poor and illiterates!
I don't think I understand the reporting of that episode. Birth Certificate says, the parent is a Kerani (Clerk) and parents ethnicity is stated as Lun Bawang (mother) and Kelabit(father). That is all OK.
They should be able to amend school records with ease and quickly. It's only the National Registration record that's very sticky, although they have sold thousands of citizenship to aliens who had actually voted as claimed by some reports.
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