Court accepts the Malay concepts of "serah" and "cari makan" on NCR land matters as legal

By Simon Peter

KUCHING, July 8, 2014: The Court of Appeal (CoA) has affirmed the concepts of "serah" and "cari makan" as customarily  practised by the Malay community of Sarawak on land matters.

The CoA held that the "Surat Perjanjian Menyerah Tanah Temuda" is not a form of Sale and Purchase Agreement, but a form of Sarawak Malay Adat of "serah" of the surrendering of rights over land.

 Baru (centre) with Batu Lintang State Assemblyman  See Chee How (left) and Rambli Kawi at a press conference.

It also held that according to the Malay adat or customs, the pioneers or the first persons that occupy an area for farming or planting of crops or fruit trees or generally for "cari makan" (foraging the land for food or generally use the land for his livelihood) would have a claim or rights over the land, that after his death, any of the children may inherit the rights over the parcel of land or commonly known as the native customary land (NCR).

It held that the rights over the land, by virtue of the Malay native customs, may be "serah" (surrendered) to another Malay person.

In the circumstances, the Malay NCR land which includes swampy areas and the riverbanks where they had planted  upon or foraged for food are not just sources of their livelihood, but also constitutes life itself as their NCR land is also fundamental to the Malay's social, cultural and spiritual aspects as natives of Sarawak.

The CoA came to the decision when dismissing the appeal by the Superintendent of Lands and Surveys of Kuching Division and the Sarawak State government against the judgment of the High Court in a suit filed by Mohamad Rambli Kawi.

Ramli, a businessman, had acquired native customary rights over 51 parcels of land totalling about 547.49 acres at Loba Rambungan, near here, by virtue of the 47 Surat Perjanjian menyerah Temuda (NCR)" or Letters of Surrendering Native Customary Land signed bteween him and the  "respective original owners" in consideration of "certain sums of monies."

However, his customary rights over the 51 parcels of land was extinguished by the Land (Extinguishment of  Native Customary Rights) (Loba Rumbangan Area) (No. 105) Direction made the Minister of Planning and Resource Management on Sept 18, 1999, issued under Section 5(3) and (4) of the Sarawak Land Code.

With the extinguishment of the customary rights, all the 51 parcels of land as well as  those situated along Loba Rambungan and Sungai Selang Rambungan were reverted to the State government.

Hence, the suit filed by Rambli to stake his claims over the 51 parcels of land.

High Court judge David Wong Dak Wah, in his judgment in favour of Rambli then, said that there could be  no doubt that the Malay customs in Sarawak must be given recognition and this was not disputed by the defendants.

He said whether natives in Sarawak have the right of disposition of NCR land, in his view, must be considered in the context of their customs and traditions together with the Federal Constitution.

"The reason is simple and that is the Federal Constitution gives protection to NCR. The first of such protection is Art 160(2) which defines law to include 'customs or usage having the

force of law in the Federation or any part thereof.

"What this means is that if, as in this case, the custom of the Malay communities allows disposition of land with NCR among themselves the court is constitutionally bound to protect that custom.

"This is how Dr. Ramy Bulan in her paper titled 'Legal  Perspectives On Native Customary Land Rights in Sarawak' puts it at page 151:  The denial of customs supporting native property rights on the basis that  they are different from non native property holding patterns not only violates art 160(2) by failing to recognize customs as part of Malaysian law, it also violates the right of natives to equality before the law,  guaranteed by art 8(1) of the Federal Constitution. The failure to provide for registration of native title and to accord indefeasibility to registered  interest could similarly violates art 8(1)."

Wong said that there is much merit in what Dr. Bulan says and he adopted her view.

He said another article of the Federal Constitution which needs to be taken into account is  Article 153 the Federal Constitution which grant special status to the Malays and the Natives of Sabah and Sarawak.

He added that nation's forefathers in their wisdom had seen fit that such special status be

accorded to the indigenous people of the country and one of the reasons for such recognition is to maintain and promote the economic livelihood of these special groups.

Hence, he said it is incumbent on the courts to ensure that such privilege and rights are enhanced.

In the case at hand, Wong said the issue is whether members of the Malay communities can transfer their NCR in their land to members of same communities.

He added that it is common sense that if  natives are allowed to dispose of their NCL within their communities, it would automatically enhance their value and improve the natives' economic livelihood.

"This would promote the ideals behind the constitutional special status of the natives. I see no reason why natives should not possess such rights of disposition of their NCL as non natives have in titled land.

"Furthermore it would not affect the rights of non natives as they could not in law hold NCL," the judge said, adding that not  to allow such disposition even among their own communities would in effect make their NCL worthless which cannot be seen as promoting the well being of natives in the country when they have been granted special status under the Federal Constitution.

Rambli's counsel Baru Bian, speaking to reporters today. said the CoA's affirmation of the High Court's judgment, is a victory to the Malay community in Sarawak.

He said that the Rambli case is a landmark and has become a precedent for future cases involving the Malay adat on land matters.

He said there are 20 similar  cases, which his legal firm are handling, are pending before the High Court.

"They are all relying on the Malay adat of  the "serah" and "cari makan" concept," said.

Baru, who is also the State PKR chief and Ba'Kelalan state assemblyman, expressed the hope that the proposed amendments to the Sarawak Land Code, to be tabled at the November sitting  of the Sarawak State Assembly, should include the concept of "serah" and "cari makan".

He said that the amendments should include the definitions of  "pemakai menoa" and "pulau galau" as NCR land, not just "temuda" (farmland or cultivated) land.

He said pemakai menoa and pulau galau have been recognised by the Federal Court as the NCR lands in cases brought before the court.

"I am prepared to advise the government on NCR land matters, but doingso from the outside,"  he added, but declined to answer whether the State government needs new legal adviser on land.