NGO asks if Federal Court overlooked Native Court

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https://hakam.org.my/wp/2016/12/27/ngo-asks-if-federal-court-overlooked-native-court/
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Source: FMT News

NGO says native customs in Borneo have been recognised as a parallel legal system under the Native Court, through the Native Court Ordinance. Pic form FMT News.

NGO says native customs in Borneo have been recognised as a parallel legal system under the Native Court, through the Native Court Ordinance. Pic form FMT News.

KUCHING: The Dayak National Congress (DNC), an NGO, said the Federal Court appears to be unaware that native customs are recognised as “a parallel legal system, apart, for civil law”.

This was provided under the Native Court, through the Native Court Ordinance, said DNC president Mengga Mikui in an op-ed in sematongexpress, a blog.

Pointing out that native customs were administered by the Native Court, he said: “This clearly and expressly make those customs part of the laws of Sarawak.”

Pemakai menoa (territorial domain) and pulau galau (communal forests) land have been regularly litigated and decided in the Native Court.

The Federal Court ruled on Tuesday last week that Adat did not have the force of law on pemakai menoa and pulau galau. It held that these were incidental to temuda (cultivated land).

The DNC chief was commenting on a joint statement issued by 10 native civil societies on the Federal Court ruling as a recipe for conflict and disaster, instead of being a solution.

“The decision questioned the custom of pemakai menoa,” said Mengga. “Pemakai menoa was practised not just in Sarawak, but throughout Borneo.”

Under the Land Code, the Dayak can apply to create pemakai menoa under either Section 10 or Section 6 of the Land Code.

Pulau galau is also recognised in the Forest Ordinance.

The late Lee Hun Hoe, as Chief Justice of Borneo, compiled some cases in his book, “Cases On Native Customary Law In Sarawak”.

Two well-known authors, A J N Richard and A F Porter, wrote on pemakai menoa as part of the laws administered in Sarawak.

Rajah Charles Brooke, in his final address to the Council Negri in 1917, warned the natives of those who come with smiling faces to deprive them of their land and make them landless in their own homeland. “That warning was prophetic and now we are witnessing its fulfillment,” said Mengga.

When the Land Code was introduced in 1958, he recalled, there were several safeguards put in place.

Clearly, he said, the Federal Court’s decision shows it was ignorant of this (1958 safeguards). “The Federal Court recognised Adat as having force of law only on temuda.

Mengga said none of those who had sat on the Federal Court bench that day had served in Borneo and, therefore, might not have understood how things involving natives worked.

Even the Sarawak government acknowledged the existence of pemakai menoa and pulau galau as customs, he noted.

In 1939, the Secretariat Circular 12/1939 was issued, directing the native communal lands, basically pemakai menoa, to be demarcated.

As a result, in the Baram District, the Boundary Book was introduced, in the Bintulu Division, the Farming Land Book was introduced and in the Simanggang Division, the Communal Land Boundaries system was introduced, he said.