Backlogs of NCR land cases at the Native Courts alarming

By Simon Peter

KUCHING, May 10, 2014: Krian state legislator Ali Biju has expressed his concern at the alarming backlogs of cases of native customary rights (NCR) land disputes at the District Native Courts.

"The statistics indicate that currently there are about 1,300 cases already filed at all the District Native Courts in Sarawak.

"These exclude the cases filed by the NCR landowners at High Courts throughout Sarawak," he said, pointing out that the number of cases is more than one thousand indicates something is not quite right and therefore the government should take immediate steps to pay urgent attention to resolving and settling these cases.

He said one reasons for the backlogs could be that the District Native Court has only three Magistrates, all of whom had served as District Officers before.

In fact, their appointment as District Native Court Magistrates was due to their work experiences when they were serving as District Officers dealing with various cases which included land, marriage and other matters, he said.

The other reason, he said, is that all the landowners involved in the disputes are from rural areas.

"Usually it takes one day to come to the District Native Court which is situated at the District Office and another day for them to go back to their respective longhouses.

"During the actual trials, the land inspection will be carried out by the Magistrates together with land claimants.

"If, however, the land being disputed is far from the District offices at least another two days will be spent for the purpose of inspection," Ali said, adding that logistics and travel time is one major factor.

"This means that by average one case requires about two weeks for a full trial, up to the delivery of judgment.

"So far, one Magistrate could settle two cases per month.

"Therefore, by average the three District Native Court Magistrates could only settle six cases in one month.

"In others words, within one year the total of only 72 cases could be settled, assuming that there is no appeal to the judgments," Ali explained, pointing out that from 2006 up till now, only 260 cases have been settled, averaging about 37 cases disposed of within a year.

He said the lack of Magistrates is a glaring factor for the backlogs.

 In view of the very insufficient number of District Native Court Magistrates, he urged the state government to increase the number with immediate effect so to expedite trials and settle the land disputes as fast as possible.

"I would also like to suggest that the government train as many officers as possible to gain knowledge on the Adat pertaining to Native Customary Rights, particularly on the creation of NCR lands," he said.

 Another legal issue that is often brought before the District Native Courts is divorces in marriages.

Divorce and the dissolution of marriages under Adat Iban is common and this gives rise to complications in the lives of the litigants after divorces.

The fines and maintenances given to the aggrieved parties and children are provided in various sections of Adat Iban Order 1993.

"With regard to the quantum of fines and maintenances, I would like to point out that the current numbers which date back to 21 years ago are obviously insufficient to meet the needs of the aggrieved parties in today's economic downturn.

"With the uptrend increase of the cost of living, I would like to suggest that the Majlis Adat Istiadat reviews and amends, among others, the relevant sections with immediate effect so the quantum of fines and maintenances be increased in tandem with the increase of cost of living.

"The most serious consequence of divorce is when the guilty party who divorced the other stops providing monthly maintenance, which may be paid to the aggrieved parties and to the children for only several months.

"There are cases when the guilty party stops giving monthly maintenance either due to being unemployed or their whereabouts cannot be traced. The matter can be more serious when the guilty party works in another country and cannot be contacted whatsoever," he said. 

He believed that the children are the ultimate victims of broken marriages  as they may not be getting proper education.

He suggested that for the Native Courts be effective, the police, District Officers, Residents and other relevant agencies should play their roles to help strengthen and implement the Adat.

"I, therefore, propose the setting up of a One-Stop Counter for all aggrieved parties after the settlement of their respective cases where government aid, support and welfare can be expedited tosupport the aggrieved parties on the spot," he said.