Not by judicial review, but writ of summons, rules Federal Court

KUCHING, Nov 19, 2014: In a landmark decision, the Federal Court ruled that native customary rights (NCR) landowners can now challenge the public authority by way of writs of summons, not by judicial review as applied for by the state government, in NCR land disputes.

The apex court, thus, upheld the decision of the High Court which was later affirmed by the Court of Appeal, in dismissing the state government's application that NCR land disputes be initiated by way of judicial review to challenge the public authority.

 

Baru Bian

The landmark decision involved a 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, presided over by Chief Judge of Malaya  Zulkefli Ahmad Makinudin unanimously answered the  question in the positive and dismissed the appeal by the State Government of Sarawak.

Explaining the decision of the FC, NCR land rights lawyer Baru Bian said the state government had argued that disputes could only be initiated via judicial review under which land owners only have 90 days to file their case in court.

In a writ of summons, landowners have three years to do, from the time they became aware that their NCR lands had been encroached upon by the government.

Baru said the state government's argument on judicial reviews meant that most landowners would have lost their case before it had even started.

“In most cases, landowners do not have the time to act because by the time they know that provisional leases (to log, clear or develop land) had been issued by the government on their land, it is too late to act.

“The government is trying to use the judicial review to give landowners little or no time to initiate legal actions,” said Baru, who is also Sarawak PKR chief and Ba'Kelalan state lawmaker.

He said it is now easier for NCR landowners to fight for their cases with the landmark ruling.

He said his legal firm is handling  over 100 cases which are similar in nature to the James Jagah anak Nyadak case.

Baru said the decision by the FC has 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 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," he said.

The other Federal Court judges sitting with Zulkefli were Suriyadi Halim Omar, Hasan Lah,  Zaleha  Zahari, and Jeffrey Tan Kok Wha.

Reading the decision, Suriyadi 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.

As such, he said it will lead to great injustice for the NCR landowners.

The FC 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.