The court has the liberty to define the concept of ‘Pemakai Menoa’ and ‘Pulau Galau’ Native Customary Rights (NCR) land because the Majlis Adat Istiadat Sarawak – the definitive authority on the status of the land – has not come up with a clear definition on the status of these lands.
Without a recognised authority to define NCR on the land claimed by the Dayaks, the judges has to depend on its own understanding of NCR status of ‘Pemakai Menoa’ and ‘Pulau Galau’ and came to the conclusion that it had ‘no force of law,” said Deputy Chief Minister Tan Sri Datuk Amar Dr James Masing.
“When this happens (lack of definitive body), the court has the liberty to define the concept of ‘Pemakai Menoa’ and ‘Pulau Galau’. The Dayaks have the definitive authority on NCR – which is Majlis Adat Istiadat Sarawak. The problem is that Majlis Adat Istiadat Sarawak doesn’t use its authority or is unwilling to define what is ‘Pemakai Menoa’ and ‘Pulau Galau’.
“I have urged the council time and time again, to use its authority to define what is ‘Pemakai Menoa’ and ‘Pulau Galau’. In doing so, it will assist the court in making their decision on issues on customary laws and written constitution,” said Masing, who is also Minister for Infrastructure Development and Transportation.
He was reacting to a Federal Court’s decision yesterday that ‘Pemakai Menoa’ and ‘Pulau Galau’ were only customs and practices, and had no force of law in state.
Masing said he was given to understand that laws derived their authority from two sources – firstly customs and past practices; and secondly laws made by the Parliament.
Should the first and second sources come in conflict or the written laws were silent on the matter in question, the the customary laws would take precedence. The interpretation on ‘Pemakai Menoa’ and ‘Pulau Galau’ falls under this category of customary laws.
Masing, who holds a doctorate in anthropology, however said his comments on the court decisions were made from the perspective an anthropologist – not from a lawyer’s point of view.
The Federal Court judges who decided in favour of the government were Tan Sri Md Raus Sharif, Tan Sri Ahmad Maarop and Tan Sri Abu Samah Nordin, while Tan Sri Zainun Ali dissented. Zainun said customs and practices were given the force of law under Article 160 of the Federal Constitution.
The decision was read out by deputy registrar of the Federal Court.
Source : @ The Borneo Post Online