Wednesday, 17 July 2013

Full judgment of the Federal Court in Bisi Jenggot vs Lands and Surveys & three others

Bisi Ak Jinggot @
Hilarion Bisi Ak Jenggut …Plaintiff
And
1. Superintendent Of Lands And Surveys
Kuching Division
2. State Government Of Sarawak
3. The Chief Scouts Commissioner, Sarawak
4. Lembaga Amanah Kebajikan Darul Falah
…Defendants
CORUM
ARIFIN ZAKARIA, CJ
RICHARD MALANJUM. CJSS
ABDULL HAMID EMBONG, FCJ
SURIYADI HALIM OMAR, FCJ
HASAN LAH, FCJ
JUDGMENT OF THE COURT
On 9th April 2012 the Federal Court granted the plaintiff, hereinafter referred to as the appellant, leave to appeal on three questions.
On the day of the appeal the appellant invited us to determine only two questions, and they are:
i) “Whether, the alleged adat or custom that “individual customary rights are not transferable by sale or otherwise for value” referred to and applied in Sumbang Ak Sekam vs. Engkarang Ak Ajah [1958] SC  95 ceased to existmand enforceable as such:
a) upon enactment of the same as law under Section 2 of the Fruit Trees Order 1889, of the Rajah; and/or
b) upon the subsequent repeal of the said Rajah’s Order?
ii) If the answers to question (1) above are in the negative, whether, by virtue of section 6 of the Land Code, the alleged adat or custom applies only to land gazetted as
native communal reserve?”

Antecedent and facts of appeal
The appellant being an Iban and/or sea Dayak by race, thus a native of Sarawak, filed a writ of summons at the High Court of Sabah and Sarawak seeking declarations against the 4 respondents (defendants) involving 3 parcels of land. He pleaded that he had acquired native customary rights (NCR) over the said 3 parcels of land through 8 sale and purchase agreements (S&Ps) and through a mixture of customary and other legal means. The following are the details of the transactions regarding these parcels
of land and court action.

The 1st parcel of land comprise 8 lots bought under 8 different S&Ps from 5 different NCR beneficial owners who had acquired the NCR by means of Iban’s customary land law prior to 1.1.1958.
Five lots (lots 7, 9, 35, 36 and 43) were bought on 8.12.1984, two lots (lots 3 and 29) were bought on 29.10.1990 and one lot (lot 2) was bought on 10.7.1991. The appellant pleaded that he had continuously occupied and cultivated those 8 lots of land. As per
the pleadings the appellant stated that the 8 lots had been gazetted as Native Area Land.
The 2nd parcel is lot 34 measuring 2.94 acres and likewise had been cultivated by him as early as 1986. He said he was the first person to cultivate this lot in 1986 under the Cocoa Scheme and later under the SEDC Adoption Scheme for cattle farming in 1991.
The 3rd parcel measuring 34 acres comprised 3 lots (lots 1, 2 and 3) of land. This parcel was given to him through his wholly owned company by the Forest Department of Sarawak on 7th of September 1993 vide a Letter of Authority No. 6/93. He was
permitted to extract logs or timber from this parcel.

The appellant also pleaded that he was given the understanding and or guarantee by the 1st respondent that if ever titles were issued for all the 3 parcels he would be the recipient of the issued titles. He also pleaded that by his continuous occupation and
cultivation of the 2 parcels, together with the rights given to extract timber from the 3rd parcel, he had acquired NCR over them.
The prayers in the Statement of Claim
We now touch on the prayers pleaded in the Statement of Claim.
His first prayer was for a declaration that he acquired NCR over the said 3 parcels of land either collectively or separately.Collectively all the 12 lots would fall under this first prayer.

The second declaration prayed for was that with the acquisition of the NCR all the respondents were precluded from impairing his rights over the 3 parcels of land. The third declaration was for an alleged infringement of his rights over all the three parcels of land.
He pleaded that on or about April 1993 two issue documents of title were issued for two areas known as Lots 85 and 86 in favour of the 4th respondent by the 1st and 2nd respondents. The areas of Lots 85 and 86 covered or included portions of all 3 parcels
claimed by the appellant inclusive of the 8 lots obtained vide the 8 S&Ps. He claimed that his NCR over the lands had been impaired and their inclusion in the two issue documents was null and void, irregular and unlawful as no prior extinguishment of his NCR had ever taken place. As against the 3rd respondent the appellant claimed that the Chief Scout Commissioner of Sarawak trespassed over those plots of land causing damage and hence entitled to damages. The rest of the prayers were consequential prayers.
Defence of the respondents
The respondents in their respective defences took the collective stance that the appellant had not acquired NCR over the first parcel of land through the S&Ps. With no NCR created or acquired prior to 1.1.1958 over the impugned lands no NCR could
have been transferred to the appellant.
As regards the 2nd parcel the respondents replied that any activity carried out over that land was done without any lawful authority.
Pertaining to the 3rd parcel, the respondents agreed that a Letter of Authority (6/93) was indeed issued on 7.9.1993 permitting the appellant to extract forest produce on that parcel of land but by 6.2.1994 the document had expired, causing further extraction of
forest produce illegal.
Further the respondents denied the existence of any understanding that the appellant would be issued with titles over the 3 parcels of land in the event titles were issued. Additionally, the 4th respondent fielded the defence that by the issuance of the
 documents of title it had acquired an indefeasible title over Lots 85 and 86, which included the 8 lots located in the 1st parcel.
Alternatively the learned State Legal Counsel for the first and second respondents also submitted that the appellant’s case rested on conditional sale and purchase agreements (see para 8 Statement of Claim) as a basis for his alleged acquisition of NCR
over the parcels of land; the condition precedent being that the Sarawak Government would first alienate the lands to the vendors.
And since this express condition was never fulfilled the S & Ps were thus rendered void and ineffective.
The High Court’s decision
On 30.4.2008, the High Court dismissed the appellant’s prayers for the declaratory and consequential orders. Dr. Hamid Sultan, JC found that the appellant was not alleging that the acquisition of the NCR, whether by himself or his father was by the clearance,
cultivation, occupation of the land or inheritance undertaken by them, but pursuant to ordinary sale and purchase transactions.

The learned JC opined that NCR could not be transferred to another person by such means. In the course of dismissing the action the learned JC said:
“A native customary right can only be transferred in a limited sense like by gift or
 inheritance, within the community members of the native. That means, a native at south
Sarawak cannot purchase the native customary rights from a native at north Sarawak. The nexus must be within the community and not within the race. For courts to recognize any such transfer it must be legislated.
(i) The appellant did not also acquire native customary rights under the Sarawak Land
Code.”
The Court of Appeal’s decision
Being dissatisfied the applicant appealed to the Court of Appeal.
This court affirmed the Iban’s customary concept of Tusun Tunggu, that an NCR could only be acquired by 2 modes namely by felling a virgin jungle and planting crops to create temuda, and secondly by gift or inheritance. The Court of Appeal further held
the view that it was legally bound to take judicial notice of the customary law established by the Native Court of Appeal in Sarawak particularly the NCR principle having been created or acquired by natives through the practice of their customs, with such rights not transferrable for value to someone else outside the community or district.

On 10.12.2010, the Court of Appeal unanimously dismissed the appeal.
The appellant then successfully obtained leave to appeal to the Federal Court hence the matter before us.
Concessions made by the parties
In the course of the proceedings before us the appellant and the respondents made a few concessions. The appellant conceded that he was restricting his appeal to the 8 lots comprising the 37.24 acres bought through the S&Ps, as reflected in paragraph 1.3 of
the appellant’s written submission and confirmed later in open court.

By this concession the appellant had abandoned his claim to the other 4 lots, respectively lot 34 in the 2nd parcel and lots 1, 2, and 3 in the 3rd parcel allegedly covered by the Letter of Authority.
His appeal thus was limited to the alleged NCR obtained through the 8 S&Ps.
Learned counsel for the respondents in the course of his submission conceded that the 8 lots transacted in the 8 S&Ps were indeed native customary land at the time of their execution. By such concession the 8 lots will be subject to native customary law, and the need to discuss lengthily whether they are located in a Native Area Land as pleaded, or the creation of the NCR was properly undertaken, become unnecessary. With the lots having been acquired by the vendors prior to 1.1.1958, as pleaded in the
Statement of Claim, the rights acquired will be subject to customary law in force prior to that date. Lee Hun Hoe J in Rampai ak Chunggat v Langau ak Chandai & Superintendant of Lands and Surveys, Third Division, Sibu (in Cases on Native
Customary Law in Sarawak pg 144) had distinctly said:
“But rights acquired prior to 1958 will be decided according to law in force prior to
1958....”
Notwithstanding the concession, the respondents stood their ground that as the transactions had not adhered to native customary law, and with indefeasible title having been acquired by the 4th respondent, the appellant’s position had become untenable.
Our Analysis
Despite the contentious facts having been drastically reduced and the issues simplified, contributed in no small way by the concessions, the need to discuss the current position as regards customary land and the acquired NCR in Sarawak must still be undertaken.

We will begin with the unchallenged evidence adduced by the appellant through a witness in court. At pages 186-187 RR part B Vol.1, Nicholas Bawin ak Anggat, an Iban and the former Deputy President of the Majlis Adat Istiadat Sarawak, amongst others
said:

“As a general rule, the household within the community that first felled the forest
secured rights over specific pieces of land.
These rights are heritable, passing ideally from generation to generation of
households members…
Rights to a piece of land is lost if it is transferred to another person, for example
a sibling, a cousin or a relative. It can also be lost if the person moves to another
villages through marriages or migration (pindah).
The adat on pindah is quite clear on depriving one’s rights to customary land.
For instance, section 73 of the Adat Iban 1993 stipulates that whoever moves from
one longhouse to another shall be deprived of all rights to untitled land or any
customary land that has not been planted with crops and all such lands shall be
owned in common by the people of the longhouse.
There is no adat on sale of customary land.
If a person pindah from the longhouse, rights to customary land will either go to the
community or he can transfer such rights to a cousin or relative who will in turn provide
him with tungkus asi.
Tungkus asi refers to the token provided by the recipient to the person who on account
of his moving from the longhouse to another transfers rights of his customary land to the recipient.”
There is marked similarity in the above explanation regarding customary land law as discussed in case laws with the law in force prior to 1.1.1958. To illustrate, in Abang v Saripah [1970] 1 MLJ 164 the Native Court of Appeal of Sarawak when considering the
factual question in issue of whether the appellant or the respondent was entitled to a piece of temuda land, at the same time had discussed Sarawak’s native customary law in some detail.

Briefly and simply put, temuda land is untitled virgin land cleared by a native whereupon he acquires some restricted right of proprietorship over that cleared land to be used by him. Once it is cleared it becomes temuda. In this case of Abang v Saripah the land was originally cleared by the respondent but subsequently abandoned for more than 20 years. The appellant wanting to claim the contested land alleged that he bought that temuda land from the respondent’s brother-in-law. B.T.H Lee J who sat with two other assessors in the Native Court of Appeal agreed with the decision of the Resident’s Native Court and dismissed the appeal.

This Native Court of Appeal held that not only did the respondent lose her rights to the land when moving away (pindah) to another district (let alone without any right or power to alienate it), but the appellant likewise on the facts of the case could not claim NCR
over it. In the course of it, the learned judge at page 165 stated the following:


“I do not find it necessary to discuss the point at great length. The law is to be found in the following passage from Native Customary Laws Ordinance (Cap. 51) Vol.
VII Sarawak Law Appendix ‘A’ para 7 at page 636.
“Theoretically all untitled land whether jungle or cleared for padi farming (temuda)
is the property of the Crown. The fact that Dayaks do clear a portion of virgin land for
the site of their padi farm confers on them a restricted right of proprietorship over the
land thus cleared. Once the jungle has been cleared it becomes ‘temuda’. It is a
recognized custom that ‘temuda’ is for the use of the original worker, his heirs and
descendants. This is the only way Dayaks can acquire land other than by gift or
inheritance….No Dayak is allowed to sell, purchase or lease (by way of demanding
rent either in kind or in cash) untitled land.

It would be an infringement of the right of the Crown if they did so, and they may be
prosecuted in view of the fact that selling of untitled land is prevalent in this division,
and Dayaks seem to forget this custom.

There are no other ways in which Dayaks can part with possession of untitled land
other than by gift or on death. When a Dayak abandons his land ‘temuda’ and
moves to another district he loses all his rights to it. The land that has been farmed
by him reverts to the Crown (as legally it is Crown land) and it is usually set aside for
the benefit of the general community or to help those who are otherwise lacking in
land.

In such a case the original owner has no right to prevent others from making use
of the land and the user acquires the rights.
This was made clear by the Rajah’s order dated 10th August 1899 Land Tenure
Act….”
Another succinct elucidation was given by the Native Court of Appeal, the highest court in the Native Court System in Sarawak, in Sat ak Akum & Anor v Randong ak Charareng [1958] SCR 104 when it said in the following manner:
“Temuda rights are created by felling the old jungle and cultivating the land, and are created only for the use of original worker, his heirs and descendants. They certainly cannot be transferred for value.

…The owner leaving the district without any heir may arrange for someone else to have
prior right to farm that land by taking from him what is called tungkus asi, which is some form of token to bind the agreement. It may not be anything of value, which would invalidate the transaction, but may consist of as much as a pig. The rights taken over by the person paying the tungkus asi are inheritable by the heirs of the person but revert to the original owner if he returns or to his heirs if they return”.
Another case for illustration, and incidentally part of the question for our determination, is Sumbang Ak Sekam v Engkarang Ak Ajah [1958] SCR 95. This case not only discussed the customary law of a native in order to obtain NCR, but also deliberated on the issue of whether such right could be transferred for value.

The matter was heard by the Native Court of Appeal of Sarawak, via case stated by the presiding Magistrate who had earlier heard the appeal from the Resident’s Native Court. The facts of the case are as follows. Guyu, a Dayak who stayed in a longhouse cleared,
cultivated and occupied a piece of land but later decided to move to Bintulu. Before leaving he handed over his land and rights to Perada, who in return gave Guyu what is called tungkus asi.
Despite having obtained this right Perada failed to use the land.
Later this land, which was still without a title, became part of the Mixed Zone. The appellant i.e. Sumbang ak Sekam then desired not only to be declared the holder of the customary rights over the land but also the one to be given the right to a Mixed Zone title.
When the matter went before the Resident’s Native Court, it found that Guyu had contractually sold the land to Perada, and proceeded to hold that the tungkus asi was actually a sale price for the land.

In a nutshell it was a commercial deal and that Perada had bought the land from Guyu. The Native Court of Appeal of Sarawak presided by Lascelles J thought otherwise. Before arriving at a factual finding Lascelles J had to contend with three points of native law or custom for decision, one of which is on point with this current appeal i.e. whether individual rights are transferable by sale or otherwise for value. The learned judge in
the course of disagreeing with the Resident Native Court, after going through the facts, held the view that the heirs of Perada still held full customary farming rights and entitled to apply for title over the land.
Lascelles J explained that tungkus asi could be best interpreted as a customary tanda or token and not a purchase price. He further explained that:
“In former days this was something of little value, supposed to represent a meal which
might reach the level of a pig and was usually handed over in front of Tuai Rumah.”

The learned judge declared that as the tungkus asi received from Perada by Guyu was a mere token, it could not be regarded as a sale of the property. At page 96 of the case, he made the statement under scrutiny before us, when he said:
“In the Court’s opinion…Individual customary rights are not transferable by sale or otherwise for value.”
The above statement posed for our determination, of whether individual customary rights are not transferable by sale or otherwise for value ceased to exist and become unenforceable upon the enactment and subsequent repeal of the Fruit Trees Order 1889 of the Rajah Order, requires discussion of like Orders.

The Rajah’s Orders, precursors to written and structured forms of Sarawak Land law which included the recognition of Sarawak’s land customary law, culminating in the Sarawak Land Code 1958 (Cap 81) made matters clearer. Skinner J (as he then was) in
Madeli Salleh v Superintendant of Lands & Surveys & Anor [2005] 3 CLJ 697 had occasion to discuss the Rajah’s Order 1X 1875 which directed that any person who made clearings of old jungle but subsequently allowing the same to go uncared would lose all claim or title over such land.

Such reference in Order 1X 1875 according to the Court of Appeal, of losing all claims over the uncared land, was clear recognition of such native custom of acquisition of NCR over land. This decision was approved by the Federal Court later (see Superintendant of Land & Surveys Miri Division & Anor v Madeli Salleh [2007] 6 CLJ 509). We see no reason to disagree with the view held by the Court of Appeal of the
clear recognition of acquisition of NCR, also confirmed by the Fruit Trees Order 1889 particularly section 2. This provision reads:
“Any Dayak removing from a river or district may not claim, sell or transfer any farming
ground in such river or district, nor may he prevent others, farming thereon, unless he
holds such land under a grant….”
Before proceeding further some clarification is required on the applicability of this provision on the appellant who is an Iban. The above section speaks of Dayaks. Under article 161A (7) of the Federal Constitution the definition of natives include Sea Dayaks
and Land Dayaks. Under the Sarawak Interpretation Ordinance 2005 found in the Schedule again the Dayaks are split into two, namely the Land Dayaks (Bidayuh) and the Sea Dayaks or Ibans.
The Sea Dayaks and Ibans are one and the same indigenous race who are natives of Sarawak. As the Order of 1889 speaks of any Dayak regardless of whether a Land Dayak or Sea Dayak, being an Iban the above provision of s. 2 would therefore apply on the appellant.
This Fruit Trees Order 1889, which did not legislate in any way that it was replacing the native customary law, merely confirmed the existence of a dual system of land i.e. one subject to grant and the other not. Interpretatively under the system where a Dayak has a grant he could claim, sell or transfer any farming ground in such river or district, to others. Under the other sisterly system, where the Dayak has no grant i.e. untitled land and invariably applicable to customary land, he may not claim, sell or transfer any farming ground in such river or district, nor may he prevent others, farming
thereon. Section 2 says nothing about preventing a Dayak having acquired NCR, handing down that right to another native, subject to the adherence of all the tenets of customary land law.
In short whether s. 2 of the Fruit Trees Order 1889 was enacted or repealed  subsequently made no difference to Native Customary Land or of the law and rights attached to it as its subsistence is guaranteed.

Haidar J in Jok Jau Evong & Ors v Marabong Lumber Sdn Bhd & Ors [1990] 3 MLJ 427 at 432 succinctly said:
“As such it would appear that native customary rights whether communal or
otherwise are recognized by the law i.e. the Land Code of Sarawak (Cap 81) (see ss. 5
and 15 of the Land Code). In other words if native customary rights were established
as at 1 January 1958 such rights shall subsist”.

The subsequent enactment of the Sarawak Land Code 1958 (Cap 81), the primary statute to make better provision in the law relating to land and at the same time ensuring the continued existence of Native Customary Land, brought major changes but leaving the NCR unscathed.

As an example, under Part II of Cap 81 the Minister may by order signified in the Gazette declare any area of land to be Native Area Land or Interior Land. The Minister is also empowered to declare any area of land to be Mixed Zone and any Native Area Land or Interior Land located within such area shall be part of the Mixed Zone [s.4 (1)]. Even the Director of Land and Surveys may, with the approval of the Minister by notification in the Gazette, declare any such area as Native Area Land, inclusive of
Interior Area Land located in that declared area.

Despite these statutory powers to classify land, s. 4 (4) of Cap 81 states clearly
that no Native Customary Land shall be affected by the above declarations made by the Minister or Director of Lands and Surveys, unless any part thereof may subsequently cease to be Native Customary Land. Section 4 (4) reads:
“Where the area in respect of which a declaration has been made under subsection (1), (2) or (3) comprises Native Customary Land, such land shall be unaffected by the declarations….”
Under s. 2 of Cap 81 Native Customary Land includes land on which NCR, whether communal or otherwise, have lawfully been created prior to 1.1.1958. In a gist NCR created prior to 1.1.1958, which does not owe its existence to statutes, is statutorily
protected and continues to subsist under s. 4 (4) regardless of any declarations (see also Sapiah Mahmud v. Superintendant of Lands and Surveys Samarahan Division & Ors [2009] 9 CLJ 567).
Apart from ensuring the subsistence of NCR already in existence prior to 1.1.1958, Cap 81 also provides for the creation of new NCR after 1.1.1958 on Interior Area Land, but subject to a permit (ss. 5(1) and 10 (4). Under s. 5 (2) the methods by which the new
NCR may be acquired are-
(a) the felling of virgin jungle and the occupation of the land thereby cleared;
(b) the planting of land with fruit trees;
(c) the occupation or cultivation of land;
(d) the use of land for a burial ground or shrine; or
(e) the use of land of any class for right of way; or
(f) any other lawful method.

The newly created NCR may be subject to extinguishment by direction of the Minister upon adherence of certain statutory requirements (s.5 (3)). Section 5 (2) (ii) of Cap 81 is highly relevant if any extinguishment exercise of the new NCR is undertaken. It reads:
“the question whether any such right has been acquired or has been lost or
extinguished shall, save as in so far as this Code makes contrary provision, be
determined by the law in force immediately prior to the 1st day of January, 1958”.

In simple terms, in the event any acquisition of new NCR comes under scrutiny, or whether subsequently lost, or extinguished shall be determined by the law in force immediately prior to the 1st day of January, 1958. This provision therefore does not differentiate the treatment of the newly created NCR and rights acquired prior
to 1.1.1958 (see Rampai ak Chunggat v Langau ak Chandai & Superintendant of Lands and Surveys, Third Division, Sibu (supra).
Additional to the newly created NCR, is the creation of Native Communal Reserves under s.6 of Cap 81 whereupon the Minister may order and declare any area of State land for the use of any community having a native system of personal law. Rights in that
Native Communal Reserve shall be regulated by the customary law of the community for whose use it was declared to be reserved. Not unlike newly created NCR in Interior Area Land, the Minister may by order signified in the Gazette declare any part of
the Native Communal Reserve to cease being part of it.

Our decision

From the totality of evidence and authorities referred in the course of the hearing, we are satisfied that the creation of native customary land and rights acquired by a native of Sarawak, is conditional upon the adherence to custom or common practice of his community.

For an Iban, it has the customary concept of Tusun Tunggu whereby NCR could be acquired by 2 modes namely clearing untitled virgin jungle enroute to the creation of
what is locally described as temuda and the other by receiving the temuda as a gift or inheritance.

For the first mode, the common thread is that the acquisition of NCR starts with the clearance of the said untitled virgin land or jungle by a native, followed by the occupation of the cleared land and thereafter not allowing the land to be abandoned. Once abandoned whatever NCR was created or acquired previously over that land would be lost. If the original owner abandons the land without more the community takes over.

Even though native customary land remains State land, with such rights acquired being considered as individual rights, after his death that land may be inherited.

The appellant certainly cannot inherit these 8 lots as he is not an heir to the vendors.

An original owner of native customary land who has no heir, may circumvent the loss of such NCR over the land by passing that land to some other person within the community, subject to him handing over to the original owner what is traditionally called tungkus asi. The tungkus asi is a form of token (tanda) symbolizing the transfer of rights of the cleared land to the new owner.

This token is customarily of little value, perhaps fetching the value of a pig, usually handed over in front of the head of the community. The appellant, though an Iban, will fail to qualify as a legitimate recipient of the temuda from the vendors as he not a native of that community.

The novel argument that the S&Ps would fall under the phrase of “any other lawful method”, which concerns only newly created NCR as provided for under s.5 (2)(f) of Cap 81, must equally fail by virtue of those 8 lots being native customary land created prior to 1.1.1958.

Lastly there is no hint of any provision in Cap 81 that legitimizes any transfer of pre 1.1.1958 acquired NCR through the mode of S&Ps.

Such a drastic change that drifts away from established natives customary law require express and clear language in Cap 81 (Haji Khalid bin Abdullah v Khalid b Abg Haji
Mazuki & Anor (Kuching OM KG 3/1983-Land Cases (1969-1987); Superintendant of Land & Surveys Miri Division & Anor v Madeli Salleh [2007] 6 CLJ 509 per Arifin Zakaria FCJ [as he then was]).

With the ineligibility of the appellant to inherit or acquire through the tungkus asi procedure, let alone the litany of case laws, inclusive of Sat ak Akum & Anor vs Randong ak Charareng (supra) and Sumbang Ak Sekam v Engkarang Ak Ajah [supra], establish that individual customary rights are not transferable by sale or otherwise for value thus invalidating the S&Ps, the position of the appellant is tenuous.

With the S&Ps being in contravention of customary land law in force immediately prior to 1.1.1958, the answer to questions 1 (a) and (b) therefore must be in the negative.

I now return to the alternative argument of the State Legal Counsel briefly touched earlier. He argued that the appellant’s case rested on conditional sale and purchase agreements, and the express conditions were never fulfilled thus rendering the S & Ps void and ineffective. We agree with this submission.

We therefore dismiss this appeal with costs. We now invite parties
to submit on the amount of costs.
Dated this 11th days of July 2013
sdg
SURIYADI HALIM OMAR
Judge
Federal Court, Malaysia
For the Appellant:
Mekanda Singh Sandhu
Kalveet Singh Sandhu
Messrs. Sandhu & Co
Lots 278-279 First Floor
Rubber Road No.9
93400 Kuching
Sarawak
For the 1st & 2nd Respondents:
Datuk JC Fong
Saferi Ali
Mohd Adzrul Adzlan
State Attorney General Chambers
16th Floor Wisma Bapa Malaysia
Petra Jaya
93502 Kuching
Sarawak
25
For the 3rd Respondent:
Abang Halit Bin Abang Malik
Messrs. Loke, King, Goh & Partners
1st Floor, Lot 301 & 302 Section 9
Lorong Rubber
No 9 Jalan Rubber
93400 Kuching
Sarawak
For the 4th Respondent:
Bexter Michael
Messrs. Ee & Lim Advocates
No. 4, 1st – 3rd Floor
Petanak Road
93100 Kuching

Sarawak    

Sunday, 9 June 2013

Lim Guan Eng's speech at the opening of the Sarawak DAP annual convention

Speech By DAP Secretary-General And MP For Bagan Lim Guan Eng During The Sarawak DAP State Ordinary Convention In Kuching On 9.6.2013.

4 Challenges For Sarawak DAP In The 2015 State General Elections

1.       First of all, I would like to congratulate Saudara Wong Ho Leng and acknowledge his leadership in once again breaking new ground for DAP in Sarawak in the recently concluded 13th General Elections.

2.       DAP Sarawak followed up its historic 2011 Sarawak State elections performance, where we won 12 out of the 15 Pakatan state seats, by winning 5 out of the 6 Pakatan parliamentary seats in the 13th GE.

3.       A most remarkable victory was achieved in the Sibu parliamentary constituency, where our Saudara Oscar Ling, achieved the seemingly impossible by increasing our winning majority from 398 in the 2010 by-election to 2,841! Not only did he increase our winning majority more than 7 fold, he did this against Lau Lee Ming, a Temenggong, no less, and also a family member of the powerful KTS group in Sibu.

4.       Under Saudara Wong Ho Leng’s leadership, DAP also managed a clean sweep in the Sibu area by winning Sarikei by 505 (Saudara Wong Ling Biu) and also Lanang by 8,630 votes (Saudari Alice Lau).

5.       In Kuching, Saudara Chong Chien Jen successfully increased his majority in Bandar Kuching from 9,952 in 2008 to 19,642 in 2013. Under his leadership in Kuching, we also managed to capture the Stampin seat with an 18,670 vote majority. This was a seat which we had lost by 3,070 votes in 2008. Our candidate in Stampin, Julian Tan, who is also a new comer, defeated a SUPP heavy weight and Deputy Minister, Yong Khoon Seng.

6.       We also broke new ground in many non-Chinese and non-urban areas. For the first time in DAP’s history, we fielded 6 non-Chinese candidates in 6 non-Chinese majority districts. In fact, DAP fielded more non-Chinese candidates compared to Chinese candidates (6 versus 5) in GE13! And in 4 out of these 6 parliament seats, we managed to reduce BN’s support even though we did not managed to win these seats.

7.       Mordi Brimol in Mas Gading, Edward Luak in Serian, Hai bin Merawin @ Bonaventure in Mukah, Ramli Anak Malak in Kapit, Dr. John Brian in Bintulu and Dr Bob Baru in Lawas should also commended for putting up an excellent showing despite being outspent by at least 10 to 1 by their opponents.

8.       Dr. John Brian, for example, together with deputy chairman, Saudara Chew Chin Sing, managed to decrease BN’s support by 15%, from 73% in 2008 to 58% in 2013.

9.       I am confident that as we continue to work hard and penetrate into the semi-urban and rural areas in Sarawak, our performance can only improve especially in the next Sarawak state elections that are due in 2016.

10.   DAP Sarawak now has 5 parliament and 12 state seats, a far cry from the 1 parliament and 1 state seat after the 2004 General Election.

11.   To fully appreciate where we are today, we need to acknowledge the blood, sweat and tears that were spilled by those who had worked tirelessly on the ground without enjoying the fruits of their labour for many, many years. This includes Saudara Chong Siew Chiang, the founder of DAP in Sarawak, who first competed in the 1979 Sarawak state elections. He and other senior leaders of DAP Sarawak had to struggle through 4 state elections in 1979, 1983, 1987 and 1991 of not winning a single state seat.

12.   It was only in the 1996 Sarawak state elections when the party made a breakthrough by winning 3 state seats, including Saudara Wong Ho Leng’s 226 vote victory in Bukit Assek. This was followed by the setback in 2001 where we only won one state seat. Another minor breakthrough was achieved when DAP in Sarawak won a then record 6 state seats in the 2006 general elections. And of course, we all know how DAP doubled its state seats on April 16, 2011 to a record 12 state seats.

13.   Without the hard work and sacrifice of the party’s founding leaders in Sarawak, DAP would not be where it is today. Their struggles through the difficult times is a stark reminder that we can never be complacent and to take for granted our current position of strength especially in the urban areas. If we fall away from our principles, if we betray the trust of our voters, we can easily end up in the position which SUPP, MCA and GERAKAN find themselves in today.

Sarawak Problems Are Malaysian Problems – Where Is ‘1 Malaysia, 1 Price’?
14.   While we must never forget our history and our roots, our challenges lay in the future. I foresee 4 important challenges for DAP moving forward in the state of Sarawak.

15.   Firstly, DAP in Sarawak must rise up to the challenge of enhancing the party’s stature as a national party. This means that issues of concern to Sarawak must be seen as national issues and that national issues must also be seen and interpreted through a Sarawakian perspective. Sarawak problems are Malaysian problems.

16.   We have already seen how allegations of massive corruption against the Chief Minister of Sarawak, Tan Sri Taib Mahmud, affects not just the good name of the state of Sarawak and its people, but it also tarnishes the reputation of the country as a whole. We have also seen how cases involving palm oil plantations in Sarawak not obtaining Roundtable on Sustainable Palm Oil (RSPO) certification can affect the reputation of the entire industry in the country.

17.   When is the “One Malaysia, One Price” going to be effected? When is poverty going to be eradicated and Native Customary Land of native Ibans going to be respected. No longer is it acceptable to have the landless and poorest in one of the richest and largest state in Malaysia.

18.   While fully accepting the co-equal status of Sabah, Sarawak and Peninsular Malaysia, we can no longer accept the false dichotomy between what happens in Sabah, Sarawak and Peninsular Malaysia do not affect one another. The notion that ‘whatever happens in Sarawak stays in Sarawak’ is clearly a false notion that has been propagated by the BN in order to scare Sarawakians into continuing to support the BN and the Sarawak Chief Minister, Taib Mahmud.

Polls Reform Of ‘One-Man, One Vote, One-Value’ Shall Not Reduce The Number Or Proportion Of Parliamentary Seats In Sabah And Sarawak But Serves To Reduce Unfair Disparities That Devalues Democracy Within Both States.
19.   Secondly, we must continue to fight for electoral reform in the country and especially in Sabah and Sarawak. Tens of thousands of Sarawakians who are working in Peninsular Malaysia, but do not have the time nor the resources to go back home to Sarawak to vote have been effectively disenfranchised. Sarawakians who are living and working in Peninsular Malaysia, must be permitted to cast a postal ballot just like how Malaysians overseas who are already registered cast their votes as postal voters. Without this change, the turnout rate in Sarawak, which was 76% in GE2013, cannot be on par with turnout in Peninsular Malaysia, which was 86.5% in GE2013.

20.   We must also fight for the ‘one-man, one-vote, one-value principle’ in the upcoming re-delineation exercise so that the unfair advantages enjoyed by the BN can be somewhat reduced. The last re-delineation exercise in Sarawak was completed in 2005. Eight years on, in 2013, it is possible that the Election Commission (SPR / EC) may want to conduct this exercise for Sarawak as well. If the Sarawak review occurs this year, then we must push for the size of the disparity between voters per seat to be significantly reduced.

21.  Here I would like to stress that the present proportion of parliamentary seats allocated to Sabah and Sarawak shall not change, out of respect for the traditional rights of both states granted when they joined Malaya in 1963 to form the Federation of Malaysia. In other words, what we are seeking for is neither reducing the number of parliamentary seats nor reducing the proportion of parliamentary seats in a future enlarged Malaysian Parliament.

22.   Regardless of the number of parliament and state seats which may or may not be added, the obvious examples of unequal distribution of voters in seats WITHIN Sarawak is already a great cause of concern and a violation of the ‘one-man, one-vote, one-value’ principle. For example, we can no longer sustain having Stampin with 84000 voters on the one hand and Igan with a mere 17,815 voters (ratio of 4.75: 1). The same applies to the state seats as well where the largest seat, Pending, has more than 30,000 voters while the smallest, Ba’kelalan, has only slightly more than 7,000 voters, a ratio of 4.3 to 1.

23.     The focus here should be to reduce the size of these disparities. DAP appreciates that geography can be equally important as demography in a state as large as Sarawak. Accordingly DAP is proposing a special consideration of a maximum voter disparity between constituencies in both states of 100%, instead of the baseline 15% disparity that was in the original Merdeka Constitution of 1957 for Peninsular Malaysia.

Kick-off For The 2015 Sarawak General Elections
24.   Thirdly, we must kick off the next new phase by preparing for the coming state General Elections expected in 2015. Even though there is 2 years more to go, we have to strengthen our machinery into rural areas in a non-threatening and more persuasive manner. The important issues will again revolve around BN’s mercenary rule where resources are reserved for the few and when will Tan Sri Taib Mahmud retire as promised in the 2011 state general elections. The new Sarawak DAP Committee will be required to submit their election plans and preparation to the CEC.

25.     DAP Sarawak has already announced that it will plan to work the ground in an additional 23 non-Chinese majority seats in preparation for the next state general elections. We will be asking all DAP ADUNs and MP, especially the 128 non-Sarawak MPs and ADUNs, to actively assist in the rural areas to break down and dismantle Taib Mahmud’s and BN’s rural domination.


PR’s Ideals, Principles And People-Centric Policies Can Bring A Better Future.
26. Fourthly, we must focus of ideals, principles and people-centric policies to counter corruption, privileged interests and cronyism. Our challenge is to show rural Sarawak that our policies will make a positive difference in their lives. Rural Sarawak must be fully aware of the benefits of DAP’s proposed RM1 billion Dayak Endowment Fund. Many do not know how change matters and can make a better future for their children.

27. Whilst the 2013 general elections is an urban tsunami covering all races whether Malay, Chinese, Indian, Kadazan or Iban, including Sarawak, we have to instill courage, Malaysian goodwill and hope to dispel the hatred, fear and even violence perpetuated by BN. For Sarawakians, the question is even more pressing to ensure that Sarawakians receive a fair share of their natural resources such as increasing the oil and royalty from the present miserly 5% given by BN’s Petronas to 20%.

28.   If DAP in Sarawak and in the rest of Malaysia can rise up to embrace these 4 challenges, I am confident that Sarawak will play a key role in ensuring that Pakatan wins a simple majority in the next general elections, in GE14. The key to opening the GE14 door is for Pakatan to break new ground in the 2015 Sarawak state elections as a precursor to Pakatan winning power in Putrajaya.

29.   Deputy Prime Minister Tan Sri Muhyidin Yassin is going on a rampage to punish those who support PR, especially the Chinese community. This makes a mockery of democracy as people should not be punished for making a free choice. If PR can treat everyone fairly in the states we rule, why can’t BN behave like a Malaysian, and not like a bad bully that continues to discriminate and take political revenge?

30. The only alternative to have a bright future for Sarawak and Malaysia is to change the BN government. Let us prove that the power of the people is more powerful than those people in power. Have a good State Ordinary Convention and good luck to those elected leaders. You have a lot of work to do. Thank you.

Sarawak DAP to put more efforts on 20 rural areas, says Wong Ho Leng

Retiring Sarawak DAP chairman Wong Ho Leng's speech at the State DAP's annual convention on June 9, 2013

We are proud that the PakatanRaykat gathered 51% of the popular votes on GE13 but because of gerrymandering and unfairness in the electoral system, the Pakatan Rakyat secured only 89 of the 222 seats in Parliament.

BN bagged 133seats in Parliament although it captured only 48% of the popular votes. There is nothing honourable about Najibforming the federal Government with only minority support.

Sarawak is rewarded by Najib in his federal cabinet but even the BN leaders in Sarawak are complaining about the portfolios held by Sarawak ministers and deputy ministers.

GE13 saw an improvement in the DAP. We have kept improving since GE12 in 2008 and 2011 Sarawak state election. We are now the 2nd largest political party in the country.

However, we should not rest on our laurels.We have not succeeded in toppling the corrupt BN regime.Where we failed, we must succeed in the next election. We owe it to the Malaysian people to replace the regime that is corrupt to the core.

We must get ready to face the state election in some 24 months. That will be the time when we must bid goodbye to the Taib administration.

We owe it to the Sarawak public that lives have to improve not only in the urban areas but also in the rural interiors of Sarawak. The recent Belagaboat tragedy speaks volume of the neglect of the interior Sarawak by the state Government, especially in areas like the lack of infrastructures such as roads. The rural interiors also do not have amenities such as water and electric supplies. These rural folks are victims of money politics played out by the BN politicians. We must give them better lives and inculcate in them better democratic ideals.

We have tremendous success in the urban constituencies. We see not only Chinese support but also Iban and Malay support at urban constituencies.

But to improve the overall lives of Sarawakians, we need a tsunami not only at the urban level but also from the rural constituencies. DAP Sarawak have identified 20 rural areas where we must put in more effort. Apart from that, we need to defend the 12 urban and semi-urban areas. We must cooperate with all opposition political parties, ie PKR, PAS and even SWP, to ensure that we break the threshold of the BN.

The party must inculcate better discipline among members. Winning elections is important but inculcating discipline at all branches is equally if not more important.

The MPs and ADUNs are expected to perform to the best of their abilities, in the manner expected of them by the Party and the electorates. The Party should not hesitate to replace underperforming wakil rakyat.


I have occupied the state Chair for 13 years. This is the time that I must let go and a new leadership takes over.I wish to thank the state committee and all the members for the cooperation rendered to me in the past 13 years. With the people’s support, the Party has achieved tremendous success, and I hope that the Party will scale greater heights under the new leadership.