23 JULY 2013
The decision of the Federal Court in the Bisi Jinggot case has generated a lot of debate over the last two weeks on whether NCR land can be bought and sold, even to those outside the community. Such comments and debate on NCR matters is a positive development.
The good news is that the case of Bisi Jinggot can be distinguished in that it clearly states that the question of sale of NCR land is subject to the adat or custom of the community concerned. It is possible that the adat of one community may differ from that of the other communities in Sarawak. Therefore evidence on the adat of permitting or prohibiting sale of NCR land must be adduced at the trial of the case. Therefore, the call for amendment of the law by those such as James Masing, Celestine Ujang and Peter Minos to be consistent with the adat or custom of the natives is very welcome.
However, I wish to bring to the attention of all that in fact, the State Government had already made an amendment to the law in 2000 by way of the Land Code (Amendment) Ordinance 2000. By virtue of s 6 of the ordinance, the new s 7B (1) and (2) provide that:
(1) Any rights described in section 7A(1) which have been registered in the Register of Native Rights may be transferred or transmitted to, or inherited or acquired by, any native.
(2) The transfer, transmission, inheritance or acquisition of native rights over land under subsection (1) shall be in accordance with the system of personal law applicable to the community to which the native belongs and shall be regulated by rules made under section 213.
Section 7A(1) states:
(1) The following rights belonging to a native over any land in respect of which no document of title has been issued, may be registered with the Registrar in accordance with rules made under section 213-
(a) rights lawfully created pursuant to section 5(1) or (2);
(b) rights and privileges over any land declared as a Native Communal Reserve under section 6(1); and
(c) rights within a Kampung Reserve.
This amendment was referred to in Bisi Jinggot case at the High Court but was not accepted, as the Court was informed then that such amendments were yet to be gazetted into law.
In the circumstances, the call by the various parties for an amendment to the law is redundant. I would suggest to them, in particular those in the State Cabinet to pursue the matter with the State Attorney General and the State Government to find out why this amendment was never gazetted into law when the Dewan Undangan Negeri had duly passed it years ago.
Secondly, the recent decision in the case of Mohamad Rambli bin Kawi v Superintendant of Lands Kuching & Anor  8 MLJ 441, in which Justice David Wong disagreed with the same argument advanced in the Bisi Jinggot case, is very encouraging. His Lordship said that ‘natives in Sarawak may dispose of their NCL among the natives themselves for value provided that there is no prohibition to do so in the custom of that native community.’ (See para 56 of the report).
Justice Wong reasoned: ‘Not to allow such disposition even among their own communities would in effect make their NCL worthless which cannot be seen as promoting the well being of the natives in the country when they have been granted special status under the Federal Constitution.’ (See para 52 of the report).
In connection with the call for amendment to the Land Code, I would suggest strongly that the definition of “Native Customary Land” under s 2 of the Sarawak Land Code be amended to include “pemakai menoa” and “pulau galau” as such land had since been affirmed by the court as land created in accordance with the adat or custom of the natives of Sarawak. I am planning to submit a motion for such amendment at the next sitting of the Dewan Undangan Negeri and I look forward to the support of the Dayak YBs from the Barisan National for the motion, consistent with their present calls to amend the Land Code to be in line with the adat or custom of the natives of Sarawak.
I wish to conclude with a very appropriate statement by AJN Richards in ‘Land Law and Adat’ on this very issue of adat being dynamic, alive and ever-changing:
'That the customary law is alive and always changing: it lives by the spirit, and not by the letter. If it is put in the straight-jacket of statutory form it will perish or, if it lives, it does so by disregarding the statute.'