I.       INTRODUCTION

On the 20th of December 2016, the Federal Court in Putrajaya reversed the decisions of both the Court of Appeal and High Court of Sibu in the case of Director of Forest, Sarawak & Anor v TR Sandah & Ors[1]. The appellant in the case was the State Government while the Respondents were the Ibans and natives of Sarawak. The respondents claimed native customary rights (NCR) over 5,639 hectares of land which the Respondents and their ancestors inherited by virtue of the Iban custom of pemakai menoa and pulau galau. The subordinate courts initially granted the Respondents native customary rights (NCR) over a claimed area of land situated in Kanowit-Ngemah, Sarawak before the Federal Court decided otherwise and deprived the natives of their right to land within the customary law.

This commentary aims to simplify and analyse the judgment made in the Federal Court regarding the TR Sandah case which have made a huge impact to the natives of Sarawak’s rights to land.

II.    BRIEF FACTS OF THE CASE

The term pemakai manoa and pulau galau mentioned in the trial and appeals can be defined as an area of land held by a distinct longhouse or village community that includes farms, garden, fruit groves, cemetery, water, and forest within a defined boundary (garis menua). Pemakai menoa also includes temuda (cultivated land that has been left to fallow); tembawai (old longhouse sites); and pulau (patches of virgin forest that have been left uncultivated to provide the community with forest resources for domestic use)[2].

The High Court of Sibu on the 27th of May 2011 held that the Respondents have NCR over the entire 5, 639 hectares of land which was leased by the State Government of Sarawak to Rosebay Enterprise Sdn Bhd. The decision was made in virtue of the respondents’ rights under their custom termed as pamakai menoa and the principles of common law.  The appellants then appealed to the Court of Appeal [3] regarding a tendered evidence of an aerial photograph of the disputed land taken in 1951. The appellant contended that out of the 5,639 hectares of land, only 2,802 hectares of cleared and cultivated land was rightfully a native customary right of the Respondents whilst the rest of 2,712 hectares of land was uncultivated and reserved for the custom of pulau galau and pemakai menoa.

Hitherto, the subject matter before the court then was about the remaining 2,712 hectares of land that was considered as primary forest and categorised by the respondents as pemakai menoa under the Iban native custom of pulau galau. The Court of Appeal, on the issue raised, reaffirmed the High Court of Sibu’s decision. The appeal was dismissed on grounds that the definition of law in article 160(2) of the Federal Constitution [4] indicated that common law was to be applied in the State of Sarawak, and the common law applicable in Sarawak recognised the customary rights of the respondents known as pemakai menoa and pulau, which had been recognised since 1800s and had not been expressly repealed by subsequent legislation. The contention brought up in the Court of Appeal was accepted and the appeal was dismissed based on that ground.

In the appeal made at the Federal Court, the appellants contended that under the Sarawakian law the appellants could not acquire NCR to the primary forest as there was no statutory recognition of any native custom that enabled NCR to be acquired over uncultivated areas or forests not felled for cultivation nevertheless used by natives to forage for food and other jungle resources.

III. ISSUES ADDRESSED IN THE DISPUTE

The appeal to Federal Court was on identical questions of law raised in both the Court of Appeal and High Court, namely:

1. whether the pre-existing rights under native laws and customs include rights to land in the virgin or primary forests in which the natives had not felled or cultivated from but were forests reserved for food and forest produce

2. whether the High Court and the Court of Appeal are entitled to uphold a claim for native customary rights to land in Sarawak based on pemakai menoa and/or pulau where, allegedly;

   i) there is no proof that the native communities (particularly the Ibans) practised such custom prior to the arrival of the First Rajah in 1841 in order for the creation of rights to the land to exist

   ii) the recognition of such a custom has never been practised by the native communities nor existed in any of the Orders made and legislations passed by or during the Brooke era or by the legislation of Sarawak

   iii) the Tusun Tunggu and the Adat Iban Order 1993 never recognised such custom in which the Order, pursuant to the Native Customary Laws Ordinance, already declared the customary laws of the Iban community that are recognised in Sarawak, and;

3. whether the rights of the natives are confined to the area where they settled and not where they obtained food is the correct statement of the law regarding the extent and nature of the rights to land claimed under native customary rights[5].

From the issues mentioned above, the predominant issue here can be said to be about whether the Iban customs of ‘pemakai menoa’ and the establishment of ‘pulau’ can be used by the Respondents to claim their native customary rights over the disputed land.

IV. DECISIONS OF THE FEDERAL COURT

A. Majority Judgment

According to Article 160(2) of the Federal Constitution, what can be regarded as “law” in the Federation includes written law, the common law and any custom or usages having the force of law in the Federation[6]. That article in its literal sense allows customary laws in Sarawak to be practised so long as it has been authorised to be law of the land. Theoretically, the provision seeks to protect the native customary rights from being disregarded in the maintenance of justice. The burden to prove that a custom can be considered as law lies with the party who claims as such. Customs that have not been recognised as laws under the Sarawak State Laws as they are not integral parts of the community will render them not having the effect of law. Hence, it shall be noted that in determining whether a certain custom shall be regarded as law, the custom must be proven to have either already been recognised by pre-existing laws of the land, laws that are passed under Ordinances in the pre-Merdeka days, or that such custom is deemed as an integral part of the community at stake.

In the present case, the majority of the bench was in favour of the appellants with only one dissenting judgment. In deciding on the issue of whether ‘pemakai menoa’ and the establishment of ‘pulau’ fall under native customary rights of the respondents, it was explained in the majority judgement that Article 160 (2) of the Federal Constitution which states that ‘“Law” includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof;”.[7] Customs or usage having the force of law, implies that not all customs or usages come within the definition of “law” as not all customary laws are given such force to be established as law. The consistency of the principle described by the learned judge was in line with a previous case, Nor Anak Nyawai, in which it has been established that NCR does not extend to the areas of forests that were scavenged for in search of food or jungle produce by the native’s ancestors[8].

In his judgment, Chief Justice Raus also stated that the mere practice of such custom alone is not enough and if such custom was recognised it should have brought with it the restrictions and regulations of the custom. An example of what has been recognised as law according to Sarawak’s legislations is the adat of Temuda (the custom of felling or clearing jungles and cultivating the claimed area afterwards) that was mentioned in the Tusun Tunggu.

As opposed to the custom of Temuda that has been mentioned and recognised in Statutes and Orders of Proclamation made by the Rajahs and subsequently by the Legislature of Sarawak, the legislatures however do not appear to have recognised the customs of pamakai menoa and pulau and such terms do not appear in Tusun Tunggu (codification of Iban adat) or in the Adat Iban Order 1993. Thus, on the first issue raised on whether the custom of ‘pemakai menoa’ and ‘pulau’ is a pre-existing right under native customary law, the issue was answered in the negative.

Due to the absence of recognition, both the subordinate courts were not entitled to uphold NCR over the land as a whole. Even if the Temuda custom gave rights for natives to claim their NCR over lands, to what extent does the right stretch for the native community? Pursuant to the Court of Appeal’s decision in Nor Anak Nyawai, the extent of the right is only to the area where the native community settled, not to the area where the community foraged for forest produce. The learned bench decided that the correct statement of law regarding the native customary rights to land should be read in a restrictive manner and does not include pemakai menoa and pulau as they are both custom practices that do not equal to positive acts of community settlement, but are customs of scavenging for their livelihood.[9]

B. Dissenting Judgment

The dissenting judgment agreed on the perimeter of the issues raised but was contrary in findings. The dissenting judge, Justice Zainun Ali, had a contradicting view with the majority bench on the contention that common law only recognises the claim for NCR on areas which form community settlement and not the area where they used to forage in the jungle.

In regards to the customary recognition of the latter type of land, Justice Zainun Ali made a reference from the Adong bin Kawau  which states that the common law, in fact, recognises the rights and interests of the natives to live from the collection of jungle produce via foraging as well as from the hunting of animals in the jungle.[10]  Despite not being able to demonstrate title to the land, the Respondents had demonstrated that their interests are to engage in such activity for their livelihood and their rights cannot be taken away without compensation. The claim of native customary right can be upheld by the court if there was proof that the customs and activities of the community are to include foraging, hence creating a burden on the respondent to show proof of customary practices[11]. Accordingly, it has indeed been proven by the Respondents in the factual evidence that certain areas of land are designated for certain uses meant for certain people only and exclude those who are not a part of the community. This gives rise to a usufructuary right.[12]

Next, the learned judge dealt with the second issue on the recognition of customs under the law, whereby the judge stated that the issue was at odds with the principles interpreted from Article 160(2) of the Federal Constitution on legislation, secondary legislation, state ordinances and enactments, as well as common law and need not be answered. This is due the nature of such issue that seemed to stress on the need for legislations in determining what the law is. That is not the case as Malaysia does have non-legislated laws like the common law, hitherto, the existence of legislation should not and has never been a determinant factor to prove recognition under the common law. The lack of regulation does not mean that there is no existence of such law. Zainun Ali FCJ also added that customs are sui juris in nature, they exist independently and do not find their origin in statutes.[13] If the sui generis nature of the custom has been satisfied, then a claim for NCR is enforceable. The sui generis is that the content of native titles must not be explained by referring to only common law or the legislature- the challenge lies in understanding the nature of such rights. The nature of such customary rights is observed through the lenses of the natives who practice those right.[14]

This then boils down to the final issue at hand, what is the correct statement of law regarding the extent and nature of rights to land claimed under native customary rights? There was a comparison made in the judgment between the case of Adong Bin Kuwau and Nor Anak Nyawai. The distinction between the two cases was that in Adong Bin Kuwau, there exists recognition to the aboriginal’s custom to hunt and forage for food in the jungle uncultivated which was contrary to the decision made in Nor Anak Nyawai. In Nor Anak Nyawai, it was noted that such rejection to acquiring NCR over uncultivated lands for scavenging was born out of the court statement, “otherwise, it may mean that vast areas of land could be under native customary rights simply through assertions by some natives that they and their ancestors had roamed and foraged the areas in search of food”. Clearly, such basis of rejection was on judicial policy-making as the decision in Nor Anak Nyawai was out of fear that if it is decided otherwise, the public may now claim areas as NCR simply by asserting as such.

It should be made clear that in order to avoid the floodgate of claims, the court must then decide on what kind of evidence is necessary to prove that their ancestors had foraged for food, and the standards to which it must be shown. It was also respectably noted that an evidentiary difficulty is not a justification for a complete disregard or manipulation of principles.[15]

The answer to the third issue was negative as the learned judge believes that the statement of law in the Court of Appeal in Nor Anak Nyawai on the extent of NCR land being confined to where the natives settle, is a misconception.

V.    COMMENTS

A. Legal Force of Customs

The interpretation of native customs should be held in a restrictive definition of legislations. Article 160(2) of the Constitution provides that native customs having the force of law does not mean that the force may only come from legislations but can also derive from common law principles (in this case, the principle recognising custom being an integral part of the community) , which are rightfully recognised as the law of the land too. Principally, a custom then may be a law due to its integral nature in the native community. Hence, to only rely on whether a custom has been enumerated by law is rather too restrictive. The law may be rigid for the sake of consistency and policy-making, but it should not be to an extent that can disproportionately harm the stakeholders. This is especially significant for the Federal Court to consider as the court establishes precedents on the claim for native customary rights on lands- a detrimental precedent carries in itself injustice for as long as it is upheld.

It was explained by Zainun Ali FCJ in the dissenting judgment that the custom at hand was a custom that enables the natives to maintain their livelihoods. Pemakai menoa and pulau are customs of foraging land, though not physically settling on the land, for forest produce which may have been the only source of livelihood for many natives of Iban in Sarawak. To restrict such rights, disabling the natives to garner those produce to maintain a living, is unfair for the natives who practices the custom and have conserved the forest area for their own benefit. Zainun Ali FCJ was right on accounts of the existence of usufructuary rights of the natives on the land under pemakai menoa and pulau as the conservation of the uncultivated forest for their own benefits created the existence of such right.

B. Procedural Irregularity

A procedural irregularity worth noting is the composition of the panel of judges in the appeal, it is stated in Article 26 (4) Chapter 3 of the Report of the Inter-Governmental Committee (IGC) 1962 read together with the Malaysian Agreement 1963 that appeals coming from Borneo states must be provided with at least one judge who is well-read and experienced in Borneo judiciary[16].  In a constitutional law lecture at the University of Malaya’s Faculty of Law given by former Court of Appeal judge Datuk Seri Hishamuddin Yunus, an interesting issue on the Federal Court Panel hearing of TR Sandah was raised; Article 8 of the Malaysian Agreement read together with Para 26(4) of Chapter 3 of the Inter-Governmental Committee Report 1962 implies that in the Supreme Court, out of 3 judges, there has to be at least 1 judge from Sabah and Sarawak. Datuk Seri Gopal Sri Ram agreed, and said that when the Malaysian Agreement was made, the Supreme Court panel consisted of 3 judges- hitherto, applying that in today’s context, there has to be at least 2 judges with Bornean experience, out of a panel of 5 judges presiding a case relating to Sabah and Sarawak’s customary interests. Datuk Seri Hishamuddin Yunus believes that although there is a moral obligation to take into account of the lack of Sabah and Sarawak judges presiding in the TR Sandah case, he does not believe that Article 8 of the Malaysian Agreement has a binding effect as it is only a treaty and provisions of a treaty has to be made into law for it to be binding.

Despite that, Article 8 of the Malaysian Agreement can be argued to be binding based on the case of Che Omar Che Soh v PP[17] where other factors such as history and Hansards were referred to in order to interpret the law. Che Omar Che Soh was built and decided on by referring to the history of Islam in Malaysia to interpret Article 3 of the Federal Constitution. Based on the contention made on Che Omar Che Soh v PP, it is possible to argue that the panel deciding the TR Sandah was per Incuriam due to the lack of inclusion of judges with Bornean experience as what has been prescribed under Article 8 of the Malaysian Agreement read alongside with Para 26(4) of Chapter 3 of the Inter-Governmental Committee Report 1962.

C. Unsettling Repercussions

The decision of the Federal Court in this case has impacted severely in the administration of justice on native customary rights to land in Sarawak. Several cases have been decided against the natives due to the decision in TR Sandah. One of them is Delta Padi Sdn Bhd & Anor v Koo Chiok Yeok & Anor (Superintendent of Lands and Surveys Department, Sarikei, third party), in which the defendant was denied NCR over an area of land at Sungai Tembawai as the land is not cleared and uncultivated, and lost the land to a local agricultural company. The High Court of Sibu relied on the precedent of TR Sandah in the reasoning to only acknowledge the custom of ‘temuda’ that includes cultivated cleared land.[18]

In fact, there are legitimate concerns raised by the Sarawak Civil Society in regards to the consequences of TR Sandah decision such as; the threat on major source of ‘livelihood, socio-economic wellbeing, political identity and dignity of the indigenous peoples in Malaysia’; increase in conflicts over customary rights lands and resources in Sarawak and Malaysia and; deprivation of the indigenous peoples of their rights to access their customary lands and resources, which will eventually lead to the dispossession of their land thus further lead them to poverty.[19]

VI. CONCLUSION

TR Sandah is not an isolated case of natives having their rights denied. Recently, the Federal Court ruled against the natives and in favour of state government and oil plantation firms. This put an end to the 13-year legal fight by more than 80 native families to regain their ancestral land in Sri Aman. Similar to TR Sandah, this ruling could potentially have repercussions on some 400 pending native land disputes.[20] Having regard to the adverse effects of the precedent, and in hopes for a better administration of justice, it is timely that the Federal Court review the decision in TR Sandah, and take into account the need to protect the natives’ interest before arriving at a decision. 

[1] [2017] 2 MLJ 281.

[2] See footnote 1 at 329.

[3] Director of Forest, Sarawak & Anor v TR Sandah Ak Tabau & Ors [2014] 1 MLJ 161.

[4] Federal Constitution art 160(2).

[5] See footnote 1 at 294.

[6] See footnote 4 above.

[7] See footnote 4 above.

[8] See footnote 1 at 310.

[9] See footnote 8.

[10] See footnote 1 at 324.

[11]See footnote 1 at 328.

[12] See footnote 1 at 329.

[13] See footnote 1 at 342.

[14] See footnote 1 at 349.

[15] See footnote 1 at 348.

[16] “Law Firm Applies Applies Application for Review of Decision in Tuai Rumah Sandah Case”,The Borneo Post Online, 5 November 2017 <http://www.theborneopost.com/2017/02/03/law-firm-files-application-for-review-of-decision-in-tuai-rumah-sandah-case/>.

[17] [1988] 2 MLJ 55.

[18] [2017] MLJU 1320, para 30.

[19] “Federal court decision threatens to dispossess indigenous communities”, the Malaysian Insider, 22 Dec 2016 <https://www.malaysiakini.com/news/366971#XCvVJV8UH7UdiPh7.99>.

[20] “End of road for Sarawak natives in land battle as court rules in favour of developers”, The Malaysian Insight, 7 November 2017 <https://www.themalaysianinsight.com/s/21797/>.