Thursday, November 28, 2013

Adat "Tungkus Asi": Contradiction between Adenan and Masing/Jabu on proposed amendment of Land Code to include adat.

DUN Sarawak  26 and 27 November 2013

Our proposal to amend the Land Code appears to be supported by YB James Masing and YB Alfred Jabu, but not by YB Adenan Satem. Excerpts from the Hansard:

YB Encik Baru Bian: In July of this year, the Federal Court held that NCR land (‘temuda’) cannot be transferred to another party by sale and purchase agreements even amongst the same native tribe or community. This decision caused much dismay to those who had been transacting such agreements and generated calls from many parties for a review of the laws regulating land in Sarawak so that the legislation and the adat of the communities would be consistent, as the Court had also stated that the question of sale of NCR temuda is subject to the adat or custom of the community concerned.

Not allowing the disposition of NCR land among the communities is a disservice and an unfairness on the native peoples as it would in effect be making their NCR lands worthless, and thus does not promote the well-being of the natives, as observed by the court in the case of Mohamad Rambli Bin Kawi. Therefore the calls for changes to be made to the law are to be expected.

I wish to bring to the attention of this Dewan that in fact, the State Government had already made an amendment to the law by way of the Land Code (Amendment) Ordinance 2000, section 6 of which amends the Land Code to permit the transfer of registered native land rights from one native to another.

However, only selected sections of the Ordinance were gazetted into law vide Sarawak Government Gazette dated 1st of April 2002 signed by the Chief Minister. One wonders if this was an April Fool’s joke on the native community, as the relevant section 6 was not one of the sections gazetted to come into force. This peculiarity, has escaped the attention of many, and no explanation has ever been sought or given for it. I call upon the Chief Minister to explain and to see to it that those sections of the Land Code (Amendment) Ordinance 2000 which were not gazetted into law be done so without delay. I would be most interested to find out why it was not gazetted accordingly.


Menteri Kemajuan Tanah Sarawak (Y.B. Tan Sri Datuk Amar Dr. James Jemut

Tuan Speaker, the Ahli Yang Berhormat for Krian has interpreted correctly what "Tungkus Asi" means in Iban.

I am happy to note that the Ahli Yang Berhormat agrees that "Tungkus Asi" is in fact a symbol of transfer of rights to land ownership either to a relative or a new owner."Tungkus Asi" literally mean packed rice signifies consideration or price of that transfer. It does not refer to “nasi bungkus”, “chicken rice” or “nasi lemak”. It referred to a price or a quantum attached to land transfer among the native community in the traditional iban society.

Therefore, Tuan Speaker, judgement which assumes that in the Iban traditional society land was transferred not based on its value but on kindness, and only among relatives in the same community, is causing confusion and anxiety among the native iban community in Sarawak. In those days, when cash economy was relatively unknown to the Ibans, Tungkus Asi‟ was the „currency‟ of transfer of land in the native community. In the present cash economy that currency is none other than money. "Tungkus Asi" is therefore the equivalent of to-day‟s cash. Thus, prohibiting the transfer of NCR land by way of a sale and purchase but recognising the concept of "Tungkus Asi" is the result of ignorance of the Iban customs and traditional practices. This misunderstanding, Tuan Speaker, will soon be corrected by the Iban community through Majlis Adat Istiadat.


Menteri Pemodenan Pertanian (Y.B. Datuk Patinggi Tan Sri (Dr.) Alfred Jabu Anak
Numpang): Tuan Speaker, on the status of the NCR, the Iban Cultural Symposium which made in August, in Sibu participated by more than 500 Ketua-Ketua Masyarakat, leaders from the Iban community. They made for three days. The cultural symposium was declared open by Yang Amat Berhormat Pehin Sri Ketua Menteri and after the three days, there is a resolution which deals with the resolution of the symposium. On NCR land issues, it has been submitted to me upon submission, I had the opportunity of discussing with all the relevant officers from Ministry of Land, Land and Survey as to polish up how we can help the resolution to be considered. And among the resolution, I read here. By the Iban community, which made in Sibu during the Iban Cultural Symposium for three days in August and also a form by the Aum Besai, Kaban Bansa Iban in Kapit in October 11th to 13th which was, the session was chaired by the Ketua Majlis Adat Istiadat. Unanimously supporting the resolution of this Iban Cultural Symposium, that is, the resolution says to call all the Sarawak Government, to immediately amend Sarawak Land Code so as to give due recognition to, and validate sales of NCR land whether by payment in the form of custom Tungkus Asi or by any other mandatory or other consideration between native or retrospective effect. With retrospective effect and that Majlis Adat Istiadat to study and review all customary laws, detriment to the progress of the Iban community and to make recommendation to Majlis Mesyuarat Kerajaan Negeri to readdress the issue.

The symposium also take cognisant of the meaning of Tungku Asi as expressed by Iban expert on adat, Yang Berbahagia Datuk Seri Edmund Langgu Ak Saga for which a copy was enclosed for consideration of State Government, which the interpretation of Tungkus Asi as been interpreted.

Dengan izin Tuan Speaker, reti tungkus asi nya rega pampas tauka ganti tanah nya diberi urang ke nguna tanah ngagai pengempu tanah ti deka diulihnya. Penguna tanah nya meli tauka mampas pengerugi, mampas pengelelak, pengiruh, pemedis urang ke udah ngerimba kampung asal serta ngaga nya nyadi tanah temuda ti lalu dipeturun ke ngagai berapa serak uchu ambu, ari apai ngagai anak ngagai uchu ngagai icit tauka ngagai sapa peturun ke empu nya. Rega pampas tauka ganti tanah nya mula-mula kelia maya kitai apin bisi duit nya sebedau penatai Tuan Raja Sir James Brooke kelia dipansut ke ngena utai baka manuk sabung, babi, tajau, tajau berega maya nya, tauka perengka temaga baka tawak, bebendai, gong, engkerumung tauka bedil. Antu pala pan tau dikena meli tanah laban antu pala berega menya. Diatu antu pala ke enda dipedulika. Kelia mega sampai ka bisi mampas tanah ngena ulun, ngena mensia. Reti tu bansa Iban endang bisi adat bejual bebeli ke tanah kenyau ari menya. Semina maya nya suba apin bisi ngena duit”.

So, in Iban, the way it is presented. We have submitted this for the consideration of the government and then we would like the government to consider it. Believing that the government will be sympathetic to the cost. So, we do not want any corners to champion regarding the NCR land rights.


Menteri di Pejabat Ketua Menteri dan Menteri Tugas-tugas Khas (Y.B. Tan Sri Datuk
Amar Haji Adenan Bin Haji Satem): The Honourable Memberfor Ba‟kelalan also touched on a Federal Court ruling that NCR land cannot be transferred to another party by Sale and Purchase Agreement. He claims that the apex Court‟s decision has caused much dismay to those who have been transacting such agreements and he called for a review of the laws pertaining to this subject, claiming that by not allowing the disposal of NCR land among the communities is a disservice or an unfairness to these native people as it would in effect be making the NCR land worthless.

It ought to be pointed out that the Court‟s decision was based on the native custom of Tungkus Asi and having regard to these essential features of native customary land. If the law with regard to the transfer of NCR land is so restricted, it is based on Tungkus Asi which is the custom practice by that community. It is not by act of this Dewan or any Government. There‟s no law to say, by Government to say that NCR land cannot be transferred, it is because of the custom. So that is why I said, in a way the Court‟s decisions was based on custom decisions or Tungkus Asi so don‟t blame the Government if you find this as very submissive, it is because of custom, the Court is only reflecting what the custom is. It is not decision based on any statutory provision. There is no statutory provision in our law passed by this Dewan to say that they shall not transfer for consideration for value NCR land. It has been explained and decided by the Native Court of Appeal in Sarawak more than 50 years ago in two cases, viz-a-viz Sat ak Akum Nor vs. Randang ak. Chararang and Sumbang ak Sekam vs. Engkarang ak. Ajau. It is a decision of Native Court of Appeal so many years ago and the Court refers to these cases. The NCR cannot be transferred to another person outside of the community of a village or longhouse.

Now, what is the rationale behind these restrictions? Why is this custom practiced and for what reason? The rationale behind this adat or custom is that untitled native land, held under native customary tenure, is for the use or benefit of a particular native longhouse or village community, and the use of the land shall be under the control of the Tuai Rumah or may allocate the use of any portion thereof to the person most in need at that time. In other words to keep the land within the community, you can pass it on by an accordance to your own relatives or you can pass on to some other person by a payment of a token sum known as Tungkus Asi but whatever it is, the land will be kept within the community, that is the reason. The rationale behind the adat is the untitled native land held under the native for the youth benefits etc. Thus, if there‟s any sale or transfer for such land for value in accordance with native custom, shall be among the persons belonging to the community in that particular longhouse or village. This is to preserve the social cohesion and harmony within the community which cannot be maintained if any member of that village or longhouse, chooses to sell his individual NCR land to an outsider, from another town, village or district, who had no connection with the people of that particular longhouse or village community.

It is generally accepted that NCR Land is normally the most valuable asset to a native particularly those who continue to reside on the NCR Land and depend on that land for his livelihood. His land is untitled and generally due to it remote location in the interior and disadvantageous in term of accessibility or marketability, unable to command a high market value. If a native were allowed to freely sell off of his individual NCR Land, that would immediately render him landless and without any mean to sustain his livelihood. The price he obtained from the sell would generally be inadequate to sustain the upkeep of himself and his family in the longer term. He would either end-up as a squatter or he would have to move somewhere, or at the same endure hardship because the amount of money he receives from the sale of his untitled NCR land, is usually insufficient to sustain himself or his family. Imagine a longhouse without any land because the land surrounding the longhouse has been disposed-off to an outsider.

Any consideration to change the customary law so as to allow NCR to be freely transacted, as advocated by the Honourable Member for Ba‟Kelalan must take into account the adverse impact on the social cohesion and harmony of the village and longhouse communities as well as to the longer term financial impact on the individual and his family who sells his untitled land for usually a meagre sum of money and become landless.

That is the case that would happen, but the Government of course is not oblivious. We do not ignore the fact that circumstances have somewhat changed. Maybe one or two hundred years ago in the time of the Raja, people do not dispose very much of their land, as they confines themselves to the areas. But now we are at the 21st century, circumstances have changed. So, if there is a proposal by interested parties who have a stake in this matter to petition the Government to amend the law so as to enable the transfer of native land from one native to another native even outside of that community, we are prepared to consider that. But we must state the position as it is so that there will be no misunderstandings, but we are open to suggestion, we are open to recommendation and we can discuss this matter, weighing all factors into account. If it is not, as if the Government is purely against this sort of thing. We understand the situation and it ought to be amended or it ought to be changed to suit the circumstances.

Any consideration to change the customary law so as to allow NCR to be freely transacted as advocated by Honourable Member must take into account the adverse impact on the social cohesion and harmony of the village and longhouse community as well as on the longer term financial impact on the individual and his family who sells his land for usually a meagre sum of money and become landless.

For these reasons, the Government‟s policy has been, in fact the Government has provided an alternative for the land so that it will be in place. The Government‟s policy has been to encourage native to consolidate or merge small, fragmented parcels of NCR land into sizeable land banks, suitable for commercial or large scale agriculture, so as to realize the economic potentials of their land and to enjoy sustainable monetary returns from land.

We have so many scheme, Salcra scheme, Felda scheme, apa nama itu Felcra scheme, Salcra scheme etc. to improve and enhance the value of that land. If the native keep on to that land, they can realize its potential value. If it‟s left idle of course they have on income from the land. We don‟t want the land to be idle, but to develop it so that have commercial value for the benefit. That is why we have Salcra scheme, Felda scheme, Felcra scheme, etc. etc.

~ Unedited Hansard

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