DCCI says urgent to study ‘shock wave’ of July 11 Fed Court ruling on NCR land
Posted on August 6, 2013, Tuesday
KUCHING: The relevant authorities, community leaders and those expert in the native ‘adat’ (customs) are urged to seriously address the implications and consequences of the July 11 Federal Court decision on native customary rights (NCR) land urgently.
Dayak Chamber of Commerce and Industry (DCCI) in a statement issued yesterday by deputy president Tan Sri Celestine Ujang Jilan said it views with deep concern the far reaching effects and ramifications of the Federal Court decision on Dayak communities.
Although the decision revolves around the Iban’s ‘Tusun Tunggu’ custom relating to a NCR land transaction, it feels this will have some bearing on other Dayak communities.
“It is public and common knowledge that the sale of NCR lands among Dayaks has been and is prevalent and (an) acceptable practice among all strata of Dayak communities from Lundu to Lawas for the last many decades. There are also numerous cases where the relevant authorities have issued titles to NCR landowners based on sale and purchase transaction of NCR lands between Dayak individuals. Many Dayak individuals who have purchased these NCR lands have settled on the said lands and have farmed, developed or improved the said lands for many years,” said Ujang.
“The practice of ‘tungkus asi’ adat has, for all intents and purposes, for the last many years became obsolete, not practised and has no relevance in this modern cash society. To apply ‘tungkus asi’ in a land transaction now can be considered retrogressive in nature. The Dayak community wishes to progress with time and not bound by the shackles of these past and obsolete adat and customs, so that they also can attain economical the level that the other communities have already achieved,” he explained.
DCCI issued the statement following a discussion among its elders on the Federal Court ruling in Putrajaya that NCR land cannot be transferred by sale and purchase agreements when dismissing the appeal by Bisi Jinggot against the lower courts’ decision to refuse him a declaration that he had acquired NCRs over several lots of land at Sungai Agas in Matang near Kuching.
Bisi, originally from Julau, alleged he entered into eight sale and purchase agreements with a number of Ibans to purchase the land, and he had paid them the purchase monies and he also claimed the vendors had prior to 1958 created NCRs over the land.
Ujang said the Federal Court’s decision, among others, ruled that for an Iban native, a sale of a NCR land is void and of no legal effect. “The Federal Court, in applying the Iban ‘Tusun Tunggu’ custom, decided that apart from acquiring NCR land under the ‘temuda’, an Iban individual can only acquire an NCR land by way of either inheritance or ‘tungkus asi’ (gift) and no other way.
“The practice of ‘tungkus asi’ is a form of ‘tanda’ (token) symbolising the transfer of a NCR land to the new owner, a relative, and this token is customarily of little value such as a meal or a pig,” he elaborated.
Because of this, he said DCCI is proposing that any archaic laws, customs and adat of the Dayak communities relating to NCR lands which have become obsolete and irrelevant in the present age be amended accordingly, to suit the changing and current socio-economic setting of the Dayak communities.
“In this way, it is hoped this could enhance the value of NCR lands and turn them into more viable economic assets rather than leaving them to remain idle or frozen assets with little or nominal monetary value,” he enthused.
Bisi had named the superintendent of Land & Surveys Kuching, the state government of Sarawak, the Scouts Commissioner for Sarawak and Lembaga Kebajikan Darul Falah, now the registered owner of part of the land claimed by Bisi, as the respondents in the case.
The land in dispute was used as the site for scouts’ jamborees, and for the filming of the Hollywood movie ‘Farewell to the King’.
Rights of the original feller of virgin jungle who occupied the felled area for farming have rights to the land (specifically ‘Temuda’) which may be inherited by his heirs. But they lose it (by) abandoning the area. The court also held that no NCR land so acquired over the ‘Temuda’ by a native may be sold to another person who does not belong to the same community.
But such land may be inherited, or if the owner of the land moved from the longhouse, he may transfer his NCR land to relatives such as cousins who in turn would provide him with ‘tungkus asi’. The court agreed with the state government that the eight sale and purchase agreements signed by Bisi were also conditional upon the Government alienating the land by issuing titles to the Ibans who purportedly sold the land to Bisi.
It was said this custom of ‘Tungkus asi’ had been upheld in a number of decisions of the Native Court of Appeal in Sarawak.
In Bisi’s case, the condition precedent was not fulfilled, as the title of the land was granted to Lembaga Kebajikan Darul Falah. Hence, the eight agreements were legally ineffectual for the purpose of transferring rights over the land to Bisi.
The court ruled that since Bisi’s alleged acquisition of the land was neither in accordance with native (Iban) customs nor in a manner provided in the Land Code, the alleged acquisition was unlawful, hence his appeal was dismissed with costs totalling RM20,000 to the respondents.