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Wednesday, July 9, 2014

Malays have 'cari makan' rights over swamp land


The Court of Appeal has affirmed that the Malays of Sarawak have “cari makan” rights over swamp lands surrounding their villages, where they forage food or generally use produce from the land for their livelihood.

“This is a landmark case that is equivalent to the Dayak Iban’s ‘pemakai menua’ (territorial domain),” said lawyer Baru Bian, who represented Rambli Kawi in the matter.

Rambli had sued the Sarawak government for rejecting his claim to swamp land that he considered his place for ‘cari makan’ and 547.49 acres of land at Loba Rombongan in Kuching, which he acquired through the local custom, adat serah (surrender).

He won the case in the High Court in Kuching, but the Sarawak government appealed.

In the case before the Court of Appeal last Monday, the three judges in a two-one decision dismissed the state government's appeal against Rambli and affirmed the decision of the trial judge:
  • That the Surat perjanjian menyerah tanah temuda (NCR)’ is not a sale and purchase agreement, but a form of Malayadat (custom) of serah (surrender) or 'the surrendering of rights over land, which is practised by the respondent, a Malay of Sarawak and the original claimant to the land;
     
  • That according to the Malay adat or customs, the pioneer or the first person who occupies an area for farming or planting of crops or fruits or generally for 'cari makan', or foraging the land for food or generally using the land for livelihood, has a claim of right over the said land;
     
  • That after his death, any of the children may inherit the right over the said parcel of land, which is commonly referred to as native customary land (NCL). This is because that land was acquired by virtue of Malay native customs, that such rights created and or acquired over the NCL may be 'serah' (surrendered) to another Malay person (as opposed to the decision of Bisi ak Jinggut at the Federal Court);
     
  • In such circumstance, the Malay NCR land, which includes the swamp areas and the river banks where they had planted upon and foraged for food, are not just sources of their livelihood, but also constitute life itself, as their NCR land  is also fundamental to the social, cultural and ritual aspects of the Malays as the native people of Sarawak; and
     
  •  As there was no adequate compensation given to the plaintiffs, the extinguishing of the said NCR is unlawful.

The trial judge had said that there can be no doubt that the Malay customs in Sarawak must be given recognition and this was not disputed by the defendants.

'Sarawak laws recognise customary land'

However, the defendants argued that no evidence was provided to the court that the alleged Malay custom practice of 'cari makan' and 'serah' have been given legal effect by the laws of Sarawak.

The defendants referred to Section 2 of the Land Code, which states that 'customary law means a custom or body of customs to which the laws of Sarawak give effect'.

Since Rambli could not show to the court that there was such written law, the 'cari makan' practice cannot be recognised by the court.

The trial judge observed that the phrase 'law of Sarawak' cannot mean only written law.

"In my view it also means common law as developed by the courts from time to time. This was happened in the groundbreaking decision of Nor Anak Nyawai & Ors against Borneo Pulp Plantation Sdn Bhd, where Ian Chin gave legal effect to the Iban practice of 'pemakai menua', which was upheld by the Court of Appeal.

"Whether natives of Sarawak have the right of deposition of NCR land, in my view, must be considered in the context of their customs and traditions together with the Federal Constitution.

“The reason is simple and that the Federal Constitution gives protections to NCR land.  The first of such protections is Article 160(2), which defines law to include customs or usage having the force of law in the federation or any thereof.

“What it means is that if, as in this case, the custom of the Malay communities allows disposition of NCR land among themselves, the court is constitutionally bound to protect that custom,” said the trial judge.

The judge then ordered that a declaration that Rambli has acquired native customary rights over the said 51 parcels of land and that the second defendant, the Sarawak government), pays the plaintiff a compensation. This is to be assessed in accordance with the provisions of the Land Code on the extinguishing of native customary rights.

Baru (right) described the Court of Appeal's decision as a landmark case against the Sarawak government and the Superintendent of Lands and Surveys, Kuching, although it was a two-one decision made on Monday, July 7.

The court was headed by Abdul Wahab Patail, who dissented, with Balia Yusof Wahi and Tengku Maimun Tuan Mat as the other two sitting judges.

“Although we do not have the benefit of having the full judgment of the Court of Appeal before us, it is deduced from the trial judge’s decisions affirmed the principles of law pertaining to NCR for the Malays of Sarawak,” Baru said.

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