Federal Court's decision on pemakai menoa and pulau galau runs contrary to Dayak customs

 By Mengga Mikui

The Federal Court decision in the case of Govt of Sarawak V TR Sandah Ak Tabau on Dec 20, 2016 was truly a bad tiding to the Dayak community throughout Sarawak, especially for this year-end Christmas Celebration. 

The Native Court is constituted under the Native Court Ordinance and is part of the Law administered in Sarawak. Clearly, the decision of the Federal Court is ignorant of this and is therefore a wrong decision. When the Land Code [cap. 81] was introduced in 1958, there were several safeguards put in place.- Mengga Mikui

We fully agreed with the joint statement of the 10 Native Civil Societies that the decision was a recipe for conflict and disaster, instead of being a solution.

The disappointment, sadness and exasperation of the entire Dayak community are palpable among the entire community. There is all-round condemnation of the decision which touched on the life and survival of the Dayak community.

Perhaps, it is the lack of understanding of the three Federal Court's judges from across the sea that made it a bad day for the Dayaks. The decision questioned the custom of pemakai menoa which is not just practised in Sarawak, but by the entire Dayak community of Borneo.

The issue before the Federal Court that was brought up by the State Government of Sarawak is that – pemakai menoa and pulau galau have no force of law, in other words, the laws of Sarawak do not recognise them. Yes, the Sarawak Government acknowledges the existence of these two customs.

But, they argue that the laws of Sarawak do not recognise them as part of the law of Sarawak - they only exist as customs. [Putting the reasoning of the court aside, that is the gist of the decision].

There are many reasons why the Dayak community have causes to complain about the judgment.

1. The entire of judges consisting of 5 Judges are Malayans. Rounding off  that is that none of them have ever served in any one of the two Borneo states. That speaks volume of their lack of understanding and appreciation of the Dayak customs of Sarawak and Borneo. It is also a wonder why none of the panel come of Sarawak of Sabah.

This problem has been endemic for quite sometimes as there is only one member of the Federal Court who comes from Sarawak, namely, the Chief Judge of Sabah & Sarawak. The issue of appointment of the number of Judges from Sabah and Sarawak to the Court of Appeal and Federal Court to reflect Malaysia as a country is important.  

2. The error and lack of local knowledge is mirrored in the judgment. The ruling of the Federal Court which only recognised temuda as NCR land is riddle with errors. The customs of pemakai menoa [and pulau galau] are age-old customs preceding even the Rajah Brookes’ era.

During the Rajahs’ time, the Dayak customs were given much respect and recognition. The Second Rajah, Rajah Charles Brooke in his final address to the Council Negri in 1917 before his demised warned the native communities of people with smiling faces who would deprive them of their lands and make them landless in their own lands. That warning was prophetic and now we are witnessing its fulfilment.

The custom of pemakai menoa has been recognised and administered by the Government of Sarawak. In 1939, the Secretariat Circular 12/1939 was issued directing the native communal lands, which is basically pemakai menoa, to be demarcated.

As a result, in the Baram District, the Boundary Book was introduced. In the Bintulu Division, the Farming Land Book was introduced. In the Simanggang Divsion, Communal Land Boundaries was introduced. All these were introduced to avoid conflicts among the adjacent villages over lands within the respective village’s territorial domain.

These have been the customary practices until now. There are many cases in the Native Courts regarding conflicts in pemakai menoa between neighbouring villages since the Court’s establishment until now.

The late Tan Sri Lee Hun Hoe, the Chief Justice of Borneo [then] even compiled some of these cases in his book – “Cases On Native Customary Law In Sarawak”. There are also authors who wrote on the practice of pemakai menoa as part of the laws administered in Sarawak including two well-known authors – AJN Richard and AF Porter.

The Native Court is constituted under the Native Court Ordinance and is part of the Law administered in Sarawak. Clearly, the decision of the Federal Court is ignorant of this and is therefore a wrong decision. When the Land Code [cap. 81] was introduced in 1958, there were several safeguards put in place.

The definition of native customary lands expressly mentioned – lands in which native customary rights, whether communal or otherwise..... which can only mean pemakai menoa; because temuda is not a communal NCR land. The provision for Native Area Land under the Land Code is simply a conversion of pemakai menoa into a statutory right for eventual issue of individual titles.  With the passing of the Land Code, the custom of pemakai menoa was restricted but not prohibited.

In order for the Dayak community to continue the practice of pemakai menoa under the Land Code, the Dayaks communities have the choices of either applying to create pemakai menoa under section 10 of the Land Code which is through the issue of a permit by the District officer or through the gazetting of stateland as native communal reserve for landless natives under section 6 of the Land Code.

As further protection of the native communities within their ancestral territorial domain, various orders have been issued restricting non natives from entering restricted areas. Under these orders, only the native community having ancestral rights within the area can enter, reside and settle within the gazetted area. Examples of these are in Kakus and Bario. In Kakus, Tatau only the Punan Community of Kakus can enter and settled within the area.

The customs of pulau galau also finds it recognition in the Forest Ordinance, namely, the creation of communal forest, though not all pulau galau are gazetted as communal forests.

 

3. We also question the motive of the State Government in pushing for the appeal which it knew will deprive the Dayak Community of their rights to their pemakai menoa. It has been the BN Govt manifesto that they protect NCR lands. It looks like their manifesto is just to mislead the Dayak community into voting for them. Indeed, the BN Govt is the source of the NCR land problems now.

The issue of timber licences, provisional leases and licence to plant forests by the BN Govt encroaching over pemakai menoa, tana’ daleh, tana’ bawang, tana’ pengurip, pimuung, baliu kanos and other similar terms is really questionable. But the Dayak communities continuously support them. Now, can the Dayak Community blame the govt or themselves for voting a government that deprives them of their NCR lands?

4. During the survey by the Cobbold Commission on the response to the proposal on the formation of Malaysia, it was reported that native community wanted their NCR lands to be protected, which in their understanding also include pemakai menoa and all its features including temuda and pulau galau.

5. With the creation of the Native Court through the Native Courts Ordinance, the native customs is recognised as a parallel legal system apart for civil law. The fact that native customs are administered by the Native Courts clearly and expressly make those customs part of the laws of Sarawak; including pemakai menoa and pulau galau which have been regularly litigated and decided in the native courts.

6. The codification of the Native customs, from the positive view point was meant to ensure its certainty and readily available. However, the fact that not all customs have been codified, particularly pemakai menoa and pulau galau have been used by the govt to support their argument that the absence of any provision on the codified adat means that the custom is not part of the law of Sarawak.

It has been on this basis that the Majlis Adat Istiadat, Sarawak as explained by Mr Nicholas Bawin, once a Deputy President of the Majlis, wanting to include the customs of pemakai menoa and pulau galau in the Adat Iban 1993 but was prevented from doing so.   

7.  As the Native communities have tried all legal ways and means to get their NCR lands recognised but failed, there is only one option left, namely, political solution. The only way left is to change the government. Perhaps, this problem is finally the blessing in disguise to motivate the Dayak community to vote for a change of government who is prepared to recognise their pemakai menoa and pulau galau.

DAP, PKR and PBDS Baru [under its newly minted President] have been advocating for recognition pemakai menoa and pulau galau. On the BN side, only three Dayak BN YBs who have voiced their rather half hearted support for fear of offending their bosses. The rest maintain their golden silence. 

8. It is the inability of the Civil Courts to understand and administer native customs effectively why the proposal by the Chief Judge of Sabah and Sarawak, Tan Sri Richard Malanjum may be more practical and attractive, that is, to elevate the Native Courts to be on par with Civil Courts operating as parallel judicial system.

Apart from that, the Majlis Adat Istiadat as the custodian of Native Customs needs to be reconstituted to be an independent commission and not subject to another government department control. Another area that needs to be considered is the introduction of the Native Customary Land Ordinance to provide, protect and administer native customary rights lands.

9. The Dayak community must now think and reconsider their position wisely. The BN government have been promising them protection of their NCR lands in exchange for their votes. But the decision in TR Sandah’s case now shows that the BN Govts’ promise of protection of their NCR land is just hollow and empty.

They must make a choice in the coming elections. Either to stay with BN and continue to lose your NCR lands or vote for a new government and reclaim back your lost NCR lands. At the same time, the Dayak voters must make the political parties serve them instead of the political parties controlling the people. It is wrong for the political parties to deprive the natives of their NCR lands.

Now the Dayaks must make the BN govt pay for their arrogance make them lose in the coming election without any feeling of remorse at all.   

10.  TR Sandah Ak Tabau is from Kanowit, a BN stronghold and its YB is from BN PBB. BN as the ruling party determines the policy of the government. The policy of the BN Govt is clear – they only recognise temuda as NCR land but not pemakai menoa.

The BN Govt pushed the Federal Court, through the appeal to decide that only temuda are NCR lands. By arguing that pemakai menoa and pulau galau have no force of law means that they are not recognised under the law. Putting it simply, BN Govt is against pemakai menoa and pulau galau.

This is the only thing what matters now to the Dayak community-their NCR lands. Perhaps the BN Govt underestimates the will of the Dayak community to change government. Holding 35 seats in the DUN can mean a lot to the Dayak community if they know how to harness their strength.

Forget about the RM50 per vote; promises of development and MRPs. All these will come from a good govt who knows its responsibility towards the people. The new govt can be better than BN who caused us to suffer for so long for 40 over years.

11. The world is progressing fast. Developed countries like Canada, New Zealand and Australia who have oppressed their native people for hundreds of years have the courage to restore back customary rights lands to the native people. Our country which is still just 53 years old and self governing but seems to be treating the natives worst than the colonial masters.

Our lands and forest were destroyed only after independent; not by the colonial masters. Certainly, we are not longing for any masters. But the message is clear, why do our own government treat its people worst than the treatment by our former colonial masters? 

12. Our Land Code which was introduced by the Britain was based on the Torren system practised in Australia and New Zealand. In these two former colonies, the aborigines and the Maoris were not recognised as legal entity.

Their continent / islands were considered as terra nullius – unoccupied continent. Perhaps it is that spirit that is applied in Sarawak where natives are not given any legal rights over their lands which are untitled. However, the most intriguing thing is this – our govt is relying on colonial laws to oppress and victimise its own people who voted them into power.

13. Having been part of the Federation of Malaysia for 53 years since its inception, it is a wonder why are there no Dayaks from Sarawak qualified to sit in the Federal Court? Are there no qualified Dayaks to be elevated to the bench or the system overlooks them? Perhaps, even the appointment to the judiciary needs to be re-visited.

The glaring result of the absence Dayaks in Court is the failure to understand Dayak customs. Most judges only view the native customs from the Government’s perception. This is certainly wrong as stated in the cases in the Canadian Supreme Court Cases of R V Sparrow.

The correct approach is to view the customs from the natives’ perspective. But in the case of TR Sandah, the Federal Court is contented in accepting the government’s perspective instead of the Dayaks’ perspective. In the light of that, there is an urgent need to re-look at the Judiciary, particularly, regarding the panel of judges presiding over cases from the States of Borneo whose customs are peculiar to the two states of Sarawak and Sabah.

14. The Dayak generation –Y have been lambasting their horror on the decision of TR Sandah. These are signs of things to come. Either the govt listens to the people or the people will terminate their tenure in office. Issuing threat to the establishment to change itself is not necessary. Just let the ballot boxes speak in the coming state election.   _ December 26, 2016

Administrator's note: The writer is the president of the Dayak National Congress (DNC), a non-governmental organisation.