Federal Court hears S’wak natives’ landmark case

Hazlan Zakaria

The Federal Court today heard submissions by a indigenous group from Sarawak challenging the Sarawak Land Code, used to acquire their native customary rights (NCR) land.

This is considered a historic test case as the outcome would affect hundreds of suits brought by Sarawak’s indigenous people against the Sarawak government and private companies.

A three-member panel led by justice Ariffin Zakaria presided over the case, involving two separate cases being heard concurrently.

The first is a suit by Bato Bagi and five other appellants against the state government over their loss of land now under water as part of the Bakun hydroelectric dam project.

The second involves a suit by Jalang Paran against the government and a state-owned company which acquired NCR land for a pulp mill project.

In both cases, the lower courts had ruled in favour of the government, where only arguments on points of law were raised instead of going for a full trial.

A number of representatives of the natives were in court today.

Also present was renowned land rights lawyer Baru Bian, the newly-minted Ba’Kelalan state assemblyperson (photo above), who is one of the counsel for the appellants.

Counsel: Process unfair

Another lawyer for the appellants, Sulaiman Abdullah, told the court that NCR land cannot be tried based on precedents set by normal land acquisition cases as NCR land cannot be considered as merely property.

He argued that NCR lands for the appellants were part and parcel of their livelihood and thus they represents life itself for the Orang Asal.

Thus the use of section 5(3) and 5(4) of the Sarawak Land Code in the acquisition of ancestral lands by the state without such special considerations is ultra vires Article 5 of the Federal Constitution, which guarantees the right to life.

Sulaiman (left in photo) also argued that there were irregularities and lack of procedural fairness in the acquisition process – such as proper land survey and reasonable notice – which led to inequitable compensation to the appellants.

This, he posited, was in breach of Article 13 of the Federal Constitution which requires equitable compensation for any property taken away by the state.

Counsel also claimed that his clients were not properly consulted by the state prior to their relocation, thus the acquisition of the lands was done without the prior informed consent of the Orang Asal.

Natives want proper trial

Sulaiman argued that such lack of prior consultations goes against the provisions of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) of which Malaysia is a signatory.

The appellants are requesting that the cases be sent back to the lower court for a full trial so that they can be decided on both merit and law.

This, argued Sulaiman, is because the area of NCR law is unsettled law and still developing, requiring a thorough examination of all the evidence tendered.

Among the remedies that the appellants are seeking is for the acquisition of their land to be declared void and adequate compensation.

The bench then asked Sulaiman to propose an assessments system on the value and compensation for the acquisitions of NCR land since he claimed it was different from normal land acquisition system.

The lawyer then requested time to prepare a reply.

Counsel for the Sarawak government JC Fong submitted that the Sarawak Land Code is the only requirement for the acquisition of NCR lands as Article 13 of the Federal Constitution only mentions law and not procedure.

He posited that Section 5(3) and 5(4) of the Sarawak Land Code were enough as they met the requirement of an en

acted law and that there are existing procedures of arbitration within the state to ensure adequate compensation.

On Sulaiman’s argument on UNDRIP, Fong said this cannot be applied in Malaysia because the international treaty, though ratified by Malaysia, was never adopted by the nation’s parliament and thus cannot be enforced.

Case resumes on May 16

Fong, instead, suggested that the appellants were at fault in both cases as they accepted compensation from the state government without protest and did not seek further arbitration.

He said that the appellants had waited too long, at least three years from the time their land was taken away in the 1990s.

To this, the bench agreed that a valid point had been raised against the appellants and asked the appellants for an explanation. Sulaiman said he would need to consult his clients to prepare a reply.

Following this, Fong submitted that he would need time to prepare his answer to the bench on the criteria to asses the value and compensation for state acquisitions of NCR lands raised by Sulaiman earlier.

Ariffin then adjourned proceedings to May 16 to give both sides time to prepare their replies and for further submissions.

The Sarawak Land Code has long been criticised as a convenient tool frequently abused by the state government to acquire NCR land.

Critics argue that the legislation is an official rubber stamp to the callous displacement of native communities purely for profit.