Wednesday, November 19, 2014

PRESS STATEMENT: NATIVE CUSTOMARY RIGHTS TO LAND IS A CONSTITUTIONAL RIGHT


PRESS STATEMENT 
18th NOVEMBER 2014

The Federal Court at Putrajaya presided by the Chief Judge of Malaya Tan Sri Dato’ Seri Zulkefli bin Ahmad Makinudin sitting with FCJ Tan Sri Datuk Suriyadi bin Halim Omar, FCJ Tan Sri Hasan bin Lah, FCJ Tan Sri Zaleha binti Zahari, FCJ Tan Jeffrey Tan Kok Wha today unanimously dismissed the appeal of the State Government of Sarawak in the case of Superintendent of Lands and Surveys, Samarahan Division & 2 Ors v James Jagah ak Nyadak & 12 Ors and Superintendent of Lands and Surveys, Samarahan Division & 1 Or v Abas ak Naun & 5 Ors.

The question of law that was posed to the Federal Court Judges was “Whether a Suit filed by a person(s) claiming native customary rights to challenge the decision of a public authority infringing the claimant’s alleged rights is an exception to the general rule enunciated by the Federal Court in Ahmad Jefri bin Mohd. Jahri @ Md Johari v Pengarah Kebudayaan dan Kesenian & Ors [2010] 3 MLJ 145”.

After hearing the submissions from both parties, the Federal Court unanimously answered the above question in the positive and dismissed the appeal by the State Government of Sarawak. This is another landmark decision involving NCR legal issues.

Reading the decision, the Federal Court Judge Tan Sri Datuk Suriyadi bin Halim Omar opined that Native Customary Rights over land is a constitutional right protected by the Federal Constitution and therefore NCR should be regarded as an exception under the O’Reilly principle as the provisional leases or timber licences were issued without the knowledge of the native landowners, which will lead to great injustice. 

The learned judge further opined that procedural efficacy must give way to the supreme law of the land, which is the Federal Constitution, and the Respondent’s action therefore qualifies as an exception under the principle in Ahmad Jefri’s case.

The decision by the learned Federal Court judges have finally put to rest a long standing question of law that has in the past been a hurdle used by the Land and Survey Department and the State Government of Sarawak to deprive the NCR Landowners of their days in court. There have been an increasing number of interlocutory applications by the timber and palm oil companies to strike out NCR claims based solely on this issue alone. Despite numerous decisions in the High Court as well as in the Court of Appeal favouring the NCR landowners, the State Government and the timber and palm oil companies continuously file such interlocutory applications and appeals to substantially delay many trials to date. This latest decision by the Federal Court is a sign that the Federal Court recognizes the native’s legal right to seek justice from the Court.

As stated by Geoffrey Robertson QC in his book “The Justice Game”, law has always been erroneously regarded as a tool for oppression but today the Federal Court shows that the law can also serve as a lever for liberation.

Both the appeals were dismissed with costs of RM10,000-00 against each  Appellant. The Respondents were represented by Mr. Baru Bian and Mr. Simon Siah Sy Jen.

Prepared by,
Simon Siah Sy Jen
Baru Bian Advocates and Solicitors

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