KUCHING, NOV 23: Sarawak PKR deputy youth chief Simon Siah has stepped forward to refute the many erroneous and misleading statements in an article written by ‘A Legal Eagle’ with regards to native customary rights (NCR) in Sarawak.
The piece by ‘A Legal Eagle’ was published on the front page of a local daily yesterday with the headline ‘NCR issues should not be politicised’, in response to state PKR chairman Baru Bian’s ‘Letter to Editor’ which addressed Deputy Chief Minister Datuk Amar Douglas Uggah Embas’ statement that the state government will never take away people’s land.
“Matters become politicised when the government fails the people. The Sarawak government through the chief minister(s) and other ministers have said numerous times that they respect the natives’ rights to land.
“They have had ample opportunities to put their words into action but failed time and time again, perhaps because most of them have vested interests. Peaceful rallies are allowed by the laws of this country, and it is the right of the people to stage rallies to show their displeasure and their desperation.
“It is perhaps impossible for Legal Eagle to understand how they feel, judging from the supercilious conclusion to his grossly inaccurate piece,” said Simon in a press statement.
He listed out seven erroneous points as follow:
“1. On his (Legal Eagle’s) first point of ‘continuous occupation’, it is not disputed that this is one of the criteria for proving NCR claims. This applies to both ‘temuda’ and ‘pemakai menoa’ and the writer was wrong to say it applies to ‘temuda’ only.
2. The writer was misleading when he said ‘Now the concept of continuous occupation fits the native custom of ‘temuda’ which has been recognised by the codified ‘Adat’ and ‘Tusun Tunggu’. In law, the customs of ‘pemakai menoa’ and ‘pulau galau’ do not fit the essential feature of any claim to native title or rights to land based on the concept of continuous occupation.’ The writer may not be aware that there is nothing in the ‘Adat’ or ‘Tusun Tunggu’ that talks about continuous occupation as an ingredient of proof of claim. The ‘continuous occupation’ requirement is taken from the interpretation of Section 2 of the Land Code under definition of ‘Native Customary Land’.
Furthermore, contrary to the writer’s assertion, the ratio decided in Nor Nyawai (court case) was not on ‘continuous occupation’ but on recognising pre-existent rights under common law. This is not to say that ‘continuous occupation’ is not correct law because as stated earlier, continuous occupation must be proved in both ‘temuda’ and ‘pemakai menoa’ and ‘pulau galau’ claims as required under Section 2 of the Land Code.
In fact, Baru had won more than 15 cases on ‘pemakai menoa’ based on Nor Nyawai and Madeli (Salleh) after proving natives were in continuous occupation of their ‘pemakai menoa’. So the writer was wrong to suggest that Baru had failed to convince any of the appellate courts that the customs of ‘pemakai menoa’ and ‘pulau galau’ have the essentials of continuous occupation.
3. As for Madeli’s case, the facts were not on ‘pemakai menoa’, but on the principle in Nor Nyawai that was affirmed at the Federal Court. Baru had made this clear in his statement. Otherwise why was the specific question of whether Adong Kuwau and Nor Nyawai had been correctly decided (that the common law respects the ‘pre-existence of rights under native laws or customs’) laid before the Federal Court? The writer is correct about facts in Madeli, but he misses the point that it is the legal principle that is relevant.
4. The reference of “where they forage for food” is taken from the High Court decision in Sagong Tasi & Ors v Kerajaan Negeri Selangor & Ors  2 CLJ 543. The Court of Appeal in Nor Nyawai applied the High Court’s ruling in Sagong Tasi to confine the area where native customary rights could exist (which were the Orang Asli in Sagong Tasi) to only “…the area that forms their settlement, but not to the jungles at large where they used to roam to forage for their livelihood in accordance with their tradition.”
When Sagong Tasi went on appeal however (reported as Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors  4 CLJ 169), this position was in fact overturned and the Court of Appeal recognised the rights over lands where the Orang Asli had foraged for food. The Court of Appeal in Nor Nyawai, that was decided on 8th July 2005, did not have the benefit of the Court of Appeal’s decision in Sagong Tasi (appeal) that was decided on 19th September 2005.
5. The writer was misleading and wrong when he said the government’s appeal was not to overrule Nor Nyawai and Madeli Salleh. If these cases are still good law, as he claims, then why did Baru’s firm lose seven cases in July this year at the Court of Appeal which were cases premised on ‘pemakai menoa’ as decided in Nor Nyawai? Does this writer really know what he is saying? If he is so confident of his knowledge and wisdom, he should just own up to his identity instead of hiding behind a pompous sounding pseudonym. The natives would be very happy if this Legal Eagle is from the SAG’s Chambers.
6. As for the statement that the state government appeals because some judges do not follow the principles in these cases, I am sorry to say that this is pure hogwash. Baru won at least 10 cases before the Federal Court decision in TR Sandah because the judges followed the principles in Nor Nyawai and Madeli Salleh. Even in TR Sandah, the High Court and Court of Appeal followed those principles. In the recent case TR Nyutan, the High Court and Court of Appeal followed the same principles and the appeal to the Federal Court was only on the issue of remedy.
7. The writer was again wrong to say that the government does recognise that ‘pemakai menoa’ or ‘pulau galau’ exist but the court ruled they do not fulfill the common law pre-requisite of continuous occupation to sustain a claim for title or rights to land. If he would care to read the Federal Court’s judgment, he would know that the court decided that the claim failed because the custom was not codified or given effect or it had “no force of law”. The decision had nothing to do with “continuous occupation”. Is Legal Eagle attempting to rewrite the judgment or trying to put words in the judges’ mouths?” — DayakDaily