Friday, May 16, 2014

Baru Bian: Why Sarawak CM should sack legal adviser

By Dukau Papau

Chief Minister Adenan Satem should sack his legal adviser for ill-advising him into making an erroneous statement in the legislature that ‘pemakai menua’ (territorial domain) and ‘pulau galau’ are not part of the native customary rights (NCR) land, says Ba’Kelalan assemblyperson Baru Bian.

The legal adviser should be changed as he is the problem, Baru added, without naming the person.

During the winding-up speech at the legislature, Adenan had said that the assertion by Ba’Kelalan assemblyman (Baru Bian) that the Federal Court had decided that ‘pemakai menua; and ‘pulau galau’ is NCR land was completely unfounded and baseless.

At the Federal Court level, the only  NCR land cases decided were Superintendent of Lands & Surveys, Miri v. Madeli Salleh; Superintendent of Lands & Surveys Bintulu v Amit bin Salleh and Others; Bato Bagi & others v Government of Sarawak & another Appeal; Bisi Jinggot v Superintendent of Lands & Surveys, Kuching & Others; Balare Jabu v Director of Forests & others; Litus Jau & others v Boustead Pelita Tinjar Sdn Bhd & Government of Sarawak; and  Lah Anyie & Ors vs Government of Sarawak & Others,  said Adenan.

“Except for Bisi Jinggot, none of the other cases are related to the issue of pemakai menoa or pulau galau.

“In Bisi Jinggot, the Federal Court decided, as I had already informed this august House in November, 2013, that for an Iban to create NCR according to the custom of the Iban community, he must have felled virgin forests, cultivated and occupied the land continuously,”he said.

 The decision put to rest what is NCR land, although some quarters still do not accept the finality of this decision, he added.   

“Therefore, the assertion by Ba’Kelalan assemblyperson that the federal court had decided that pemakai menua and pulau galau is NCR land is completely unfounded and baseless,” Adenan        stressed.

Responding to  the statement, Baru, who is a distinguished NCR land lawyer, said that it is still the government’s view that the Federal Court has not yet decided that pemakai menua and pulau galau asNCR land.

Loophole in legal brain’s story

“That is the mistake, and I think he is ill-advised. The legal brain and legal adviser has not told him the whole story, because Madeli Salleh’s case at the Federal Court had affirmed Nor Nyawai’s case.

“That is the issue and that is the reason why I must meet him and to explain to him the whole story. I don’t think he has read Madeli Salleh’s case in toto.

“I think the legal adviser to the state government needs to be changed, because he is the main problem. He is the one who has ill-advised the chief minister,” he said.

Baru then cited as examples the cases that reached the Court of Appeal which had decided their favour.

“And if my view is wrong, we would not have won all the 10 cases in the High Court. “I don’t think the chief minister was fully briefed on all these court cases,” he said.

Earlier in speech Adenan said that there have been allegations by both the opposition as well as foreign and domestic NGOs, that the statedid not recognise NCR land and was depriving the natives of their ancestral land, which are untitled, without extinguishing their rights and payment of adequate compensation.

“I must place on record that these allegations are unfounded and malicious, and the government categorically denies them.

“The government recognizes rights created by natives over land in accordance with their customary laws. It is accepted that after 1958, when the Land Code came into force, no native customary rights can be created except over Interior Area Land.

“A permit under section 10(3) is issued by the Superintendent. Section 5(2)(b) expressly provided that when the issue arises as to whether NCR had been created, acquired, lost or extinguished, shall be determined according to the law immediately in force before 1.1.1958,” he said.

Lesson in separation of powers

Adenan pointed out that two issues had been raised with regard to NCR land lately. One, the courts have allegedly recognised pemakai menoa and pulau galau as part of NCR land.

“To make the law consistent with the decisions of the courts, there had been two attempts by the Honourable Member for Ba’Kelalan to introduce motions in this House to amend the definition of “Native Customary Land” to include pemakai menoa and pulau galau as part of “Native Customary Land”.

“This means the Courts’ decisions at High Court and even Court of Appeal levels, are inconsistent with the laws previously passed by this august House and which remain in force, otherwise there is no need to amend the Land Code.

“The constitutional principle of separation of powers must be maintained. The Legislature makes laws, and may empower the Executive to make subsidiary legislations. The courts’ constitutional duty is to interpret, apply and enforce the legislations both principal and subsidiary. Courts cannot legislate.” he added.
~ Malaysiakini

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