K Suresh If we go by the statement “out of the blue” from the Sabah Attorney General’s Chamber on Friday and various other statements since then on Sarawak, it seems that in reality there are no Natives in Sabah after 1930 and none in Sarawak after 1958, but only on paper and meaningless for any purpose whatsoever.
This is political dynamite from the ruling Barisan Nasional in an election year!
In short, after allowing for other private land properly registered and titled, all land in the two states – after 1930 and 1958 respectively – is state land. This is equivalent to William the Conqueror claiming all land in England as Crown (his) land after he vanquished King Harold 11, the last English King, at the Battle of Hastings on 14 Oct 1066.
Left with nothing but Article 153
Without Native land after 1930 and 1958, the Natives of Sabah and Sarawak are only left with Article 153 of the Federal Constitution which in any case has been observed more than not in the breach and/or in a deviated and distorted form to favour the ruling elite in Peninsular Malaysia.
Article 153, in any case, also speaks of the legitimate interests of the non-Malay communities in its 2nd prong and includes the Orang Asli and the Malay-speaking communities in Peninsular Malaysia in its 1st prong.
Article 153, despite being a fine piece of legislation on paper, is no guarantee for the Natives or Orang Asli, even if the Malay-speaking communities in Peninsular Malaysia can be excluded at some future date by virtue of them not being Natives of the land.
This is because Article 153 is a man-made piece of legislation which was initially supposed to have a 15-yeear shelf life and, therefore, can be done away with by a future Government without batting an eyelid.
Native Customary Rights
The Malay-speaking communities in Peninsular Malaysia, as stated before, don’t enter the picture for the purpose of defining a Native although the British created Malay reservation land for the immigrant squatter colonies and hence the Federal Constitution had to define Malay, principally for the purpose of owning such land and Article 153 as well.
The latter reflects more the fact that Umno stepped into the power vacuum created by the departing British “colonial” administration. This brings the issue back to NCR land, Adat and the question just exactly who’s a Native in Sabah and Sarawak, if we set aside the Orang Asli for a moment.
The provision in the Sarawak Land Code that no NCR land can be created after 1958 has never been challenged in Court. If done so, it will surely fail since it runs foul of the Federal Constitution, the superior law, and tries to usurp the power of the King and the Governor in matters related to the conduct of Native affairs and their protection.
The common law position will not support the Sarawak Land Code either as it stands. The law states that Native land can only be owned by Natives. The law, for that purpose, defines who is a Native. The list of those deemed native can be found in the Sabah and Sarawak Constitution and the federal Constitution.
If the question of defining who can own Native land does not arise, there would be no need in law to define a Native. Having defined a Native, no other law can go on to contradict it by stating that only those before a certain year – 1930 and 1958 respectively – are Natives in reality.
Hence, would the issue of Natives after 1930 and 1958 respectively, merely be Natives on paper and not in reality. No state government in Sabah or Sarawak can legislate a cut-off date for the creation of Native or NCR land.
Hence, it’s not the done thing for Sabah and Sarawak Governments to throw cold water on the status of NCR land created after 1930 and 1958 respectively.
NCR an inalienable part of the laws of the land
A discussion on Sabah will do to illustrate the dilemma faced by Sarawak Natives as well.
What are we talking about here? The Sabah state government wants to dignify a date, i.e. 1930, used then by the British North Borneo Chartered Company administering Sabah, for the purpose of NCR? That’s like legislating against the people.
The sovereignty of a people lies with them. The Natives of Sabah did not give the Company a mandate to rule Sabah in defiance of history, NCR and Adat and in fact any mandate at all. The Natives came before the Company and Government. That’s in history, Adat, Common Law and the Federal Constitution.
This means NCR is an inalienable part of the laws of the land. No law including the Federal Constitution and/or Judiciary and/or Government can by administration extinguish NCR, Native Rights and the Natives in any manner. The Native Court has been accepted as an inalienable part of the Judiciary.
It has been established by case law in our Courts that even if Government “claims” NCR by “law” as “state land”, this still doesn’t give it beneficial possession of such land. The beneficial possession of such land still resides with the Natives and this means that there can be no cut-off date for the creation of such land. The Natives have to allow for their coming generations through the continuous creation of such land.
Adat
Under Adat, there’s no cut-off date for the creation of NCR. So, no Government can legislate on this. It stands to reason that new NCR, including on so-called state land, is a natural and logical extension of existing NCR. No one is creating NCR in the middle of town on state land.
It may be permissible to re-designate NCR as Country Lease – can be owned by anyone — land if it’s (NCR) next to the latter land and not otherwise. No one can open Pandora’s Box here.
No one can create CL land in the middle of NCR land. No matter which way we turn on the issue of NCR, we can’t ignore history, Adat, Common Law and the Federal Constitution. In essence, this is not just the Art but also the Science of Law.
The right Forum for NCR issues in Sabah is the Assistant Collector for Land Revenue (ACLR), Native Court and the High Court of Sabah and Sarawak. In this the Natives of Sabah, as in Sarawak, have to stand alone and not look to politicians or the government of the day to protect them.
The Court of Appeal and the Federal Court can make a determination on points of Law which may be said to include history, Adat, Common Law and the Federal Constitution.
Any law legislated against history, Adat and the Natives including against NCR doesn’t enter the picture for the purpose of such determination. There is no need for a provision for the creation of NCR after 1930.
The Ordinance not allowing for the creation of NCR after 1930 is null and void to the extent of its inconsistency with Adat. There is no cut off date in Adat, neither can there be, for the creation of NCR. Adat provides for the continuous creation of NCR.
Against all natural justice
NCR is the Right to Life as provided for in history, Adat, Native Rights and the Federal Constitution which is the superior law vis a vis Ordinance or Enactment.
Any Ordinance or Enactment, being inferior pieces of legislation vis a vis the Federal Constitution, is null and void to the extent of their inconsistency with the Federal Constitution, the Superior Law of the Land. The Federal Constitution cannot be seen as going against itself.
The bottom line in history, NCR, Adat, Native Rights and the Federal Constitution is that those who come from the outside world and encroach into the Land of the Original People – including a Government, Constitution and Judiciary — must face the consequences of their action.
No subsequent work of man-made legislation can whitewash, for want of a better term, their “sins” including against Natives.
There can be no Law on Earth providing for the virtual theft of someone else property and/or anyone acting with impunity and that includes the Government.
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