Tuai Rumah Eri anak Ajok wins his court case against the Sarawak Government

Kuching, April 5, 2012: The High Court here has ruled that Eri anak Ajok was irrationally sacked as the village headman of Kampung Emplas in Simunjan district by the state government last year.

The judge Datuk Rhodzariah Bujang made the ruling today after hearing an application for the judicial review of Eri’s termination as the tuai rumah or village headman.

Eri, who was elected the Tuai Rumah in 1961, named the Simunjan district officer as the first respondent, the director of the Human Resources Division in the Chief Minister’s Department as the second respondent and the Resident of Samarahan Division as the third respondent in his application for the judicial review.

In her ruling, the judge said the termination was irrationally made through a letter signed by the director of the Human Resources Division.

“The reason for saying this is that. The applicant was only informed of the termination 2 ½ months after it took effect and he was paid the honorarium 4 ½ months later.

“With respect to the respondents and fully acknowledging that they are vested with a complete discretion on who to appoint as Tuai Rumah, the inordinate delay in conveying the decision on the termination is in complete defiance of reason and logic,” she said, adding that the late communication of the termination has satisfied the criteria of irrationality.

The judge said the decision to terminate, even if the option of payment of the honorarium was chosen, must logically  and of necessity be communicated to a Tuai Rumah before the effective date of termination or at the very least, on the very day of the termination itself and ideally, the honorarium be paid at the same time as when the decision is communicated.

“With respect to the respondents, I am compelled to ask this pertinent question: What is the use and where lies the logic of telling a man that he is no longer the anointed leader long after his appointment has been revoked?

“It is not only unfair to the applicant but to the community he serves for there are ramifications following such a delay.

“A Tuai Rumah in that same position the applicant would and could have happily performed his official duties as Tuai Rumah such as the common act of certifying or verifying documents for his people when in fact he was no longer holding the post as one.

“In that circumstance, the certification or verification would be rendered invalid and may even have legal repercussions, to the owner of the documents.

“Therefore, the act of notifying him of the termination only so many months after the effective date, even if one were to excuse the delay in payment of the honorarium, has rendered the termination bad in law and the letter of termination null and void.

“The decision to terminate him ought to be quashed,” she said.

In allowing the application for the judicial review, the judge ordered that the applicant be paid arrears from April 2011 until to date, but minus the one month honorarium which had been paid to him following the void termination letter.

Rohdzariah also ordered the respondents to pay RM3,000 as the cost of the summons in chambers and RM7,000 for the application.

The judge, however, ruled that the Circular Memorandum, dated Oct 2, 1980, regulating the terms and conditions of appointment of a Ketua Kaum as valid.

“Firstly, it is stated in the Circular at clause 6.1 thereof that a Ketua Kaum is not a government officer.

“It is then provided in the Circular that the power of appointment lies with the State Secretary who may delegate his authority to the Resident of each Division in the State and in respect of termination or revocation of the same, the applicable provision is Clause 3.4 thereof which states as follows:

“The appointment in the Ketua Kaum Service is made at the pleasure of the Government and may be determined by either side on giving one month’s notice or in lieu of notice to pay an equivalent of one month’s honorarium.”

“This Circular therefore proves that the applicant’s appointment as a Tuai Rumah is contractual and it being clearly stated to be at the pleasure of the State Government, means that the appointment is at the sole discretion of the appointing authority.

“Though it cannot be denied that in the days of old, prior to this Circular, a Tuai Rumah was appointed by way of ‘adat’ or tradition based on the support the appointee enjoyed from the majority of the households in the longhouse, such consideration is no longer the determinating factor in the post Circular period.

“And in this case,  the applicant cannot argue that the Circular does not apply to him because he was formally appointed after it came into effect and his appointment, prior to the termination, was made under it.

“The terms and conditions therefore bind him and the prerogative of the appointment lies solely with the State Government.

“Thus, even though there is probability to the applicant’s assertion that he still enjoys the support and confidence of the majority of the households in his longhouse, sadly for him this is not a ground for him to continue to cling on to his post as Tuai Rumah,” she said.

“Since the applicant held the office of Tuai Rumah at the pleasure of the State Government, the grounds for terminating his appointment is not open for examination by me,” the judge said.

Eri was represented by See Chee How of Baru Bian Advocates &  Solicitors, while the three respondents were represented by the State Legal Counsel Saferi Ali of the State Attorney-General’s Chambers.

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NCR land case : Court rejects bid by defendants to strike out application

Kuching (March 26, 2012): The High Court here ruled that a case involving  a dispute over native customary rights (NCR) land claims will go for a full trial after dismissing an application by three defendants.

The defendants, Naim Cendera Sdn Bhd, Superintendents of Lands and Surveys of Kuching Division and Sarawak State Government, applied to the court to strike the claims by six plaintiffs on technical grounds.

The plaintiffs, Simo Sekam, Tasek Ayau, Eddie Ahang, Bodui Dayu, Bungai Bengem and Sirus Jon, are suing the three defendants over 6,046ha of land in Upper Bengoh in Kuching Division.

They are claiming that they have native customary right over the land which they stated had been encroached the defendants.

In his decision, Mr Justice Sangau Gunting said the defendants seemed to have overlooked the fact that the plaintiffs very complaint in the suit pertained substantially to the defendants’ implicit failure to exhaustively fulfil the requirements of the Sarawak Land Code.

“But perhaps, more to the point is that the contention of the Lands and Surveys and the State government seems also indicative of their assumption that the plaintiffs’ claim has nothing to do with NCR whose creation may relate to the time when the Sarawak Land Code and other related statues were not yet in existence,” the judge said.

Sangau said there appeared to be substance in the plaintiffs’ contention of the existence and persistence of a factual issue arising from the Lands and Surveys and the State Government’s averment concerning “the land over which the NCR was extinguished”, presumably about 1,530 hectares, and the plaintiffs‟ averment concerning “the land over which NCR was exercised”, presumably 6,046.69 hectares.

He said it was the plaintiffs’ contention that the existence and extent of their native customary rights over the land constitutes the primary, if not the core issue, in the instant suit.

“Since the issue at hand involves possibly pre-existing rights pertaining to NCR, the overall issue of existence or otherwise of NCR is so intrinsically interwined with existence or otherwise of pre-existing rights, that the contention of equating the plaintiffs’ instant action to stepping into the shoes of the Settlement Officer, would appear no longer sustainable.

“Otherwise, such contention would tantamount to wrongly applying statutes to private rights which statues in any case were not in existence at the time the alleged creation of those private rights commenced,” he said, stating that the application by the defendants pursuant to Order 14A Rule 1 of the RHC 1980 must be dismissed with costs to be taxed unless otherwise agreed.

 Desmond Khoo of Baru Bian & Co advocates represented the plaintiffs while Naim Cendera was represented y Alicia Voon of Alvin Ching & Partners Advocates and state legal officer Joseph Chioh represented the Lands and Surveys and Sarawak State Government.

BMF welcomes RTA's move to scrap plans for US$2b aluminium smelter plant

The Bruno Manser Fund's "Stop Corruption Dams" campaign has achieved a major victory today as mining giant Rio Tinto PLC has announced it will scrap plans for a US$2 billion aluminium smelter project in the Malaysian state of Sarawak.

According to Dow Jones Newswires, Rio Tinto decided to scrap the controversial smelter plans as negotiations with the Taib family-controlled Cahya Mata Sarawak and the Taib-controlled Sarawak Energy Bhd failed to bear results.

Jacynthe Cote, chief executive of Rio Tinto Alcan's aluminium division said "agreement on a long term competitive power supply contract couldn't be reached" with the Taib family businesses.

Rio Tinto's announcement is a major blow for the Sarawak state government under Chief Minister Abdul Taib Mahmud who consistently used the aluminium smelter to promote the recently completed 2'400 MW Bakun dam, Asia's largest dam outside China.

As a result, the Bakun dam will cause a massive power glut in Sarawak whose costs will have to be born by Sarawak consumers, tax payers and Malaysia's pension fund EPF who funded the mega-project with massive loans.

Plans to export Bakun's excess power to West Malaysia had to be scrapped for economic reasons.

The Bruno Manser Fund welcomes Rio Tinto's decision to abandon its Sarawak smelter plans as a major victory for the international campaign to preserve the natural environment and the livelihoods of Sarawak's indigenous peoples.

Rio Tinto's decision proves that the Taib government's irresponsible economic policies have completely failed.

There is no need to build another twelve dams in the state as envisaged by the Taib government. All these corruption-driven dam plans that would only benefit the Taib family's construction companies must come tho a halt now.

This is the kind of development that you have to expect from a kleptocratic potentate who believes in witchcraft instead of sound economic analysis and blatantly abuses his public office in order to rob his people.

The Bruno Manser Fund is calling on the Sarawak government to immediately halt the ongoing construction works for the Murum dam and to shelve all further dam plans in Sarawak.

"We are also calling on the Malaysian federal government to explain how the Bakun dam should ever become profitable and how the EPF (Employees Provident Fund) loans to Bakun will be secured," BMF said.

Masing's trusted man resigns from PRS

Kuching, March 27, 2012: Patrick Sibat Sujang, a close confidante and a trusted man of Parti Rakyat Sarawak (PRS) president Tan Sri Dr James Masing, has resigned from the party today, saying that he wants to continue his political struggle with Pakatan Raykat.

“I have lost faith in the Barisan Nasional leadership,” he said in an interview after emailing his resignation letter to PRS secretary-general Datuk Wilfred Nissom.

His resignation as a member of PRS as well as a member of the supreme council took effect immediately.

Sibat wrote:”I would like to tender my letter of resignation as a member of Parti Rakyat Sarawak as well as a member of the supreme council with immediate effect.

“I wish to thank my former colleagues for their support and fellowship towards me all this while,” he concluded.

Asked what prompted him to resign,  Sibat said:”I have always been a Barisan Nasional man all this while, but in the last five years, I saw a lot of things which I think were not properly managed and that is why we have so many unsolved problems.

“These include the issues concerning the native customary rights land which have not been handled properly,” he said.

“I believe that these issues could be better handled with the change in the governments at the state and federal levels,” he said.

“When I look at the PR struggles and its leadership as well as their wisdom, there is a place for everyone under the Malaysian sun,” he said, adding:”I believe that Datuk Seri Anwar Ibrahim can handle the job as the prime minister of Malaysia better.”

He said he believed in the struggle of the Pakatan Rakyat and the wisdom of its leaders in managing the country.

On PRS role in the Barisan Nasional, Sibat  said there is nothing much it can do, being a small party.

He said he has a feeling that the leaders of the three component parties of the State BN – SPDP, PRS and SUPP – fear Chief Minister Tan Sri Abdul Taib Mahmud.

 “There is always the spirit of fear among leaders because Taib is very powerful politically.

“I regard as truth Masing’s statement asking the people not to lawan the towkay.

“But only this time, the towkay is Taib and the people who should not lawan the towkay are the BN leaders,” he suggested.

“You can’t talk much within the Barisan Nasional because what you talk may be misconstrued as against the Barisan Nasional leadership,” he said.

He said there is no point for him to remain in PRS since it cannot do much for the Dayak community.

“Being a small party, it has its limit so it is not that effective.”

On his relationship with Masing, Sibat said he still considers the party president as a personal friend.

“We have been friends for a long time and I don’t think politics will divide us apart,” he said.

Sibat was one of the promoters of PRS in 2003 before the de-registration of Parti Bansa Dayak Sarawak (PBDS) in 2004.

PBDS was then in a serious leadership crisis.

One faction, led by Masing, knew that PBDS was about to be deregistered by the Registrar of Societies (ROS) so they came with an idea to form a new party to accommodate Wakil Rakyats and PBDS members supporting Masing.

When PBDS was eventually deregistered, PRS was formed while those supporting PBDS president Datuk Seri Daniel Tajem joined opposition parties or remained partyless.

Among Tajem’s loyalists was current Sarawak PKR leader Baru Bian.

Meanwhile, Nissom said the party cannot stop any members from resigning.

“It is up to them,” he said, adding that the party would make appropriate comment after receiving Sibat’s resignation letter.

“We will discuss the resignation in our party’s supreme council meeting scheduled for April 13,” he added.

He said he does not think it is proper for Sibat to send his resignation letter by emailing it.

“It has to be hand-delivered to the party headquarters,” he explained. By Sematong Express.

SPDP has successfully held its TGA, but members may raise questions if Tiong becomes party president later

Sarawak Progressive Democratic Party (SPDP) has successfully  concluded its triennial general assembly (TGA) in Bintulu.

This is against a background of a troubled period for the party including having to deal with the rebellion staged by five senior members and the losses of two seats to the Opposition in last year’s state election.

Former deputy president Datuk Peter Nyarok’s defeat in Krian to a political novice sent shockwaves within the party and the State Barisan Nasional.

“How could this be?” was the question most asked among the party members considering that Nyarok, an assistant minister in the chief minister’s office then, had done much for the people in Krian since winning the seat in the 1983 state election.

SPDP president Tan Sri William Mawan’s leadership was clearly tested in overcoming the problems from the five senior members or the Gang of Five as they are politically known.

The five – former senior vice president Datuk Peter Nansian, former vice presidents Datuk Sylvester Entrie Muran and Datuk Dr Tiki Lafe, former information chief Paulus Gumbang and former supreme council member Rosey Yunus – had become torns in the flesh and had belittled Mawan’s leadership with their accusations and statements.

They accused Mawan of being controlled by Bintulu Member of Parliament Datuk Seri Tiong King Sing, who has just been elected deputy president of the party at the TGA, in leading the party.

As cool as an ice, Mawan denied the labelling, saying that he has his own mind, but of course, he has to consult other party leaders on the party affairs and policies.

At the end of the day, he has to make his own decisions.

And for those who have known Mawan, they know that he has a strong personality and a person who is willing to listen to suggestions.

“That is how he works and leads,” explains his close friend.

His accommodative style, perhaps, is being used to attack him as is the case when the Gang of Five accused him of being a weak leader.

But the show of support accorded to him at the TGA was proof that the accusation was baseless and trivial.

One clear sign that came out of the TGA was that the party has recovered from its internal crisis, with the delegates giving their full support to the party’s leadership.

The crisis, which started soon after the 2009 TGA, has threatened to break the party apart since the Gang of Five, apart from being the Wakil Rakyat, had strong support among the grassroots.

In fact, all of them recorded increased number of votes in the April 16, 2011 state election while Mawan (Pakan) and another state assemblyman Wong Judat (Meluan) registered decreased number of votes.

The increases in the number of votes which the Gang of Five individually obtained showed their popularity among the grassroots.

The election of some faces into the supreme council at the TGA is an indication that the party is changing in tandem with the situation, and at the same time, the old guards were still retained because of their experiences and to guide the up and coming leaders.

The election of Tiong, BN Backbencher Club chairman, as the deputy president is well received by the delegates. In fact, his name was the only one nominated to contest the post while Nyarok decided to step aside for him to take over.

If Mawan decides to step down as party president, one day, Tiong would be the natural choice to take over, and this is where succession issue could be questioned.

There is no doubt that Tiong is a good and respected leader. The support from the Dayaks in his Bintulu constituency is beyond questioned because he has gained their confidence and the leader they can rely on.

If indeed Tiong succeeds Mawan as president later, his position in SPDP will be similar to that of the late Datuk Amar James Wong Kim Min in the Sarawak National Party (SNAP) in 1981.

When the late  Wong took over as SNAP president from Datuk Amar Dunstan Endawie in 1981, many educated young Dayak leaders left the party, leading to the formation of Parti Bansa Dayak Sarawak in 1983.

Among them were Tan Sri Leo Moggie, Datuk Seri Daniel Tajem and the late Joseph Samuel.

They reasoned that since SNAP drew most of its members from the Dayak community, its president should also be a Dayak.

Since Wong becoming president, SNAP has gone through crisis after crisis, and the members who did not agree with his leadership simply left and formed their own party.

Apart from Moggie and his supporters, the others who also left were former senior vice president Dr Patau Rubis and his supporters, and they formed State Reform Party in 1996.

The leadership tussle between Wong and Mawan led to the deregistration of SNAP in 2002. After SNAP was deregistered Mawan formed SPDP while Wong took the deregistration to court which in later years quashed the order of the Registrar of Societies (ROS).

What was happening in SNAP should be a valuable lesson to SPDP. What the present and future leadership of the party should know is that special recognition and consideration must be accorded to the Dayak members.

Wong failed to give special considerations to the Dayaks in the party because he treated all members, regardless of their racial origins, equally.  This is a mistake because the Dayaks, although they have the numbers, they are not as politically and economically advanced as the Chinese and Malays.

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