Webinar on Reflections on Director of Forest Sarawak

Webinar on ‘Reflections on Director of Forest, Sarawak v TR Sandah ak Tabau’ Speaker: Tan Sri Datuk Seri Panglima Richard Malanjum Former Chief Justice, Malaysia 14 th October 2020 – 3 pm – 4. 30 pm 1

Contents • The Law and Native Customary Rights – Custom and usage as source of law in Malaysia – Origin of Native Customary Rights – Development of Native Customary Rights – Amendment of the Sarawak Land Code • Borneon Experience • Quo Vardis, Native Customary Rights? 2

Custom and Usage as Source of Law in Malaysia - Basic Issues • The ‘majority’ judgment in TR Sandah case • The ‘minority’ judgment in TR Sandah case • ‘any custom or usage having the force of law in the Federation or any part thereof’ – what are the expectations? • Legal implications of the 2018 amendment affecting Native Customary Land under the Sarawak Land Code – breach of Article 13 of FC?

Custom and Usage as Source of Law in Malaysia • Article 160(2) – Law: ‘includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof’ • Judges should ‘address the needs of a society quite differently structured, with different aspirations based on an entirely different set of values. Our courts should therefore adopt an approach that is best suited to our own needs and values paying such respect as is due to the approach adopted by the courts of countries whose values upon particular subjects may be at variance with our own. ’- Gopal Sri Ram in Hong Leong Equipment Sdn Bhd v Liew Fook Chuan (1996)1 MLJ 481 4

‘…. any custom or usage having the force of law in the Federation or any part thereof’ – what are the expectations? Whose function? The Court and Legislature and Executive? If Court - factual - through expert evidence? Once accepted by the court, can it be revisited? • If revisited, what is the legal implication? • •

Some examples on customs given force of law through Judicial Notice – Bisi ak Jinggot @ Hilarion Bisi ak Jenggut v Superintendent of Lands and Surveys Kuching Division & Ors [2013] 3 MLJ 202 (COA) • The Court took judicial notice of the customary law established by the Native Court of Appeal in Sarawak that individual customary rights created or acquired by natives through the practice of their customs cannot be transferred for value or to someone from outside their community or district. – Kong Nen Siew v Lim Siew Hong [1971] 1 MLJ 262 (OCJ Sibu) • The Court accepted and applied testimony of the Registrar of the Chinese Foochow community on customary law in Sibu district relating to matrimonial matters – Roberts Alias Kamarulzaman v Ummi Kalthom [1966] 1 MLJ 163 (OCJ KL) • The Court took judicial notice of “harta sepencarian”, a matter of Malay adat applicable only to the case of a divorced spouse who claims against the other spouse during his or her lifetime. 6

Some examples on customs given force of law through Judicial Notice • SOP Plantations (Suai) Sdn Bhs v Ading Ak Layang & Ors [2004] 4 MLJ 180 (HC) – The court may take judicial notice that every longhouse has a Tuai Rumah or Chief. In dealing with communal rights or property of a particular longhouse community such as the native customary rights and native customary land, it is appropriate and proper and in fact it is the practice to deal with the Tuai Rumah or the chief of the longhouse concerned. • Pang Ah Chee v Chong Kwee Sang [1985] 1 MLJ 153 (FC Johore Bahru) – The Court took judicial notice of Chinese funeral expenses, where the amount would vary according to the status of the deceased. • Wakil Diri Harta Pesaka, Ahmad Nizar bin Mohd Yusoff (si mati) v Pathmanathan a/l M Sathu (mendakwa sebagai orang tanggungan si mati untuk diri sendiri dan bagi pihak semua orang tanggungan si mati tersebut) [2017] MLJU 1890 (HC) – The Court took judicial notice of the religious and customary rites of Indians in awarding costs for funeral expenses. 7

The Law and Native Customary Rights • Origins of Native Customary Rights – At the time of James Brooke’s arrival in Sarawak, a system of land tenure originating and supported by customary law had been in existence in Borneo and throughout the eastern archipelago. In Sarawak, the term ‘adat’, is used to describe this body of customary rules or laws. – James Brooke, in 1840, recognized the right to the jungle around the longhouse. – Land Regulations of 1863 • provision was made for the alienation only of 'unoccupied and waste lands, the property of government’ • Brooke declared that Chinese immigrants were allowed to settle but could not govern or interfere with the Malays or Dayaks and could not take land already occupied – Fruit Trees Order 1899 • Enunciates that no community or individual may hold up land in excess of requirements and, the extreme case, removal to another district 8 automatically extinguishes all rights of the user.

The Law and Native Customary Rights • 1954 Amendment – Allows natives to enter into Interior Area Land to create native customary rights – Natives no longer occupy the land ‘at the pleasure of the Government’ – Preamble amended to include the words ‘and to make provision for defining the rights of natives and non-natives in such land’ – Included definitions: • 'customary law' means a custom of body of customs to which the law of the Colony gives effect; • 'native system of personal law' means the customary law applying to any community forming the whole or part of any native specified in the First Schedule to the Interpretation Ordinance 1953; • 'system of personal law' means the system of personal law recognized by the general law of the Colony as being applicable to the members of any racial, religious or other community because they are members of such community and includes any rules or customary law of such system which may refer the determination of any matter to another system of personal law. – Showed that the Crown was aware of their obligations under the Instrument of Cessation to honour native customary rights 9

The Law and Native Customary Rights • 1955 Amendment – S 8 • (3) Without prejudice to any law for the time being regulating the prospecting for minerals and mineral oils or the taking of forest produce any native who without a prior permit in writing from a District Officer occupies any Interior Area Land or fells or attempts to fell virgin jungle upon any such land or attempts to create customary rights upon any such land shall be guilty of an offence: Penalty, for a first offence a fine of five hundred dollars or imprisonment for six months and for a second or subsequent offence a fine of five hundred dollars and imprisonment for six months. • (4) The occupation of Interior Area Land by a native or native community without a permit in writing from a District Officer shall not, notwithstanding any law or custom to the contrary, confer any right or privilege on such native or community and in any such case such native or native community shall for the purposes of the Land Ordinance or the Land Settlement Ordinance whichever is applicable, be deemed to be in unlawful occupation of Crown land. – Created a prohibition against the creation of native customary rights in Interior Area Land unless there was prior written permission from a district officer. – Existing native customary rights of the plaintiffs, which had been exercised since the time of the ancestors of the plaintiffs (before 1955), were not affected as those amendments were not stated to apply 10 retrospectively.

The Law and Native Customary Rights • Sarawak Land Code 1958 – Replaced the : • Land Ordinance 1948; • Land Settlement Ordinance 1948; • Land (Classification) Ordinance 1948; • Dealings in Land (Validation) Ordinance 1952; and • rules made thereunder 11

Nor Anak Nyawai & Ors v Borneo Pulp Plantation Sdn Bhs & Ors [2001] 6 MLJ 241 (HC) • Decision – The disputed area fell within the boundaries of the longhouse, occupied and accessed by the plaintiffs’ ancestors for hunting, fishing and collection of forest produce in exercise of NCR – This right was passed down through the generations and each claimant’s rights arose by virtue of being a member of a community in lawful occupation and possession of the claimed lands – Customs presently practised were the same customs practised by the plaintiffs’ ancestors – The court concluded that the ‘preexisting rights’ had not been extinguished by the legislation – Noted the Brooke administration’s regular acknowledgement of the existence and importance of customary laws, referring to them as ‘“the indefeasible rights of the Aborigines”’ – Noted that James Brooke was noted “acutely aware of the ‘prior presence of the native communities, whose own laws in relation to ownership and development have been consistently honoured”’ 12

Nor Anak Nyawai & Ors v Borneo Pulp Plantation Sdn Bhs & Ors [2001] 6 MLJ 241 (HC) • Decision • Native customary law existed and operated side by side with the Orders of the Rajah • Citing the decisions in Mabo (No. 2), The Wik Peoples v The State Of Queensland And Ors (‘Wik Peoples’ and Adong, the court held that the common law respected the pre-existing rights under native law and custom. • Declared that ‘native customary rights are similar rights to those under native title of the Australian Aboriginals. . . enforceable as common law rights • Extinguishment of this title could only occur as a result of ‘clear and unambiguous words’ of the legislature the ‘native customary rights of an Iban to do things associated with the terms temuda, pulau and pemakai menoa have not been abolished’ but survived through the Brooke orders and ordinances of the colonial period up to the present. 13

Superintendent of Lands & Surveys, Bintulu v Nor Anak Nyawai & Ors and another [2006] 1 MLJ 256 (COA) • overturned the High Court’s ruling on the grounds that: – there was insufficient evidence to show occupation – trial judge did not take into account the unchallenged testimony of one Sapit, who testified that no temuda existed in the disputed area – trial court had relied upon ‘self-serving testimonies by some of the respondents which carry little or no weight in the absence of some other credible corroborative evidence’ regarding whethere was pulau in the disputed area • Opined that occupation other than by settlement and cultivation was beyond protection • Stated that the doctrine of native title required the group to be in continuous occupation of the land in dispute • Affirmed that the Iban customary practice of pemakai menoa existed as an established custom relating to land 14

Superintendent of Lands & Surveys, Bintulu v Nor Anak Nyawai & Ors and another [2006] 1 MLJ 256 (COA) • With the exception of the determination on occupation, agreed with the High Court’s conclusions on the law that: – that the common law respects the pre-existence of rights under native laws or customs though such rights may be taken away by clear and unambiguous words in a legislation; – that native customary rights do not owe their existence to statutes. They exist long before any legislation and the legislation is only relevant to determine how much of those native customary rights have been extinguished; – that the Sarawak Land Code ‘does not abrogate whatever native customary right that exist before the passing of that legislation’. However, natives are no longer able to claim new territory without a permit under s 10 of that legislation from the Superintendent of Lands and Surveys’; and – that although the natives may not hold any title to the land may be termed licensees, such licence ‘cannot be terminable at will. Theirs are native customary rights which can only be extinguished in accordance with the laws and this is after payment of compensation. 15

Madeli bin Salleh (Suing as Administrator of the Estate of the deceased, Salleh bin Kilong) v Superintendent of Land & Surveys Miri Division and Government of Sarawak [2008] 2 MLJ 677 (FC) • Decision – The appeal was dismissed. – The common law position with regard to native titles is that by the common law, the Crown may acquire a radical title or ultimate title to the land, but the Crown did not thereby acquire absolute beneficial ownership of the land. The Crown's right or interest is subject to any native rights over such land. – The Rajah’s Order IX of 1875 had given due recognition to native rights over land. This is further reinforced by Rajah’s Order No VIII 1920 (Land Order 1920). Section 22 gives recognition to native holdings in accordance with customary laws and where possible such claim to land shall be registered. Section 30 provides for compensation to be paid should the Government resumes possession of any occupied land for any purpose. 16

Madeli bin Salleh (Suing as Administrator of the Estate of the deceased, Salleh bin Kilong) v Superintendent of Land & Surveys Miri Division and Government of Sarawak [2008] 2 MLJ 677 (FC) – To satisfy the ‘occupation’ requirement, actual physical presence is not necessary. There can be occupation without physical presence on the land provided there exist sufficient measure of control to prevent strangers from interfering. – There is no provision in the 1921 Order seeking to extinguish the respondent's right over the said land. Only future use of the land so reserved are governed by the said order, but it did not go further to provide that land which are already in occupation by native under the customary laws ceased to have effect and continued occupation of the land by the natives shall become illegal. – The 1921 Order did not apply retrospectively. It is an established principle of construction of statute that prima facie a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language use. 17

Nyawai v Madeli v TR Sandah • In Nyawai – the facts should be considered- area agreed with NCR and disputed area as without NCR • On foraging – agreed with view expressed in Sagong context – should it be as far as the eyes can see? • Clarified by Madeli - To satisfy the ‘occupation’ requirement, actual physical presence is not necessary. There can be occupation without physical presence on the land provided there exist sufficient measure of control to prevent strangers from interfering. • Can it not be said that Madeli established as the law recognizing NCR/NCL through custom of the natives of Sarawak? • Whither TR Sandah? Per incuriam ? Breach of Article 13 of FC?

Bisi ak Jinggot @ Hilarion Bisi ak Jenggut v Superintendent of Lands and Surveys Kuching Division & Ors (2013) 5 MLJ 149 (4) To begin with it may be useful to understand the various terminologies under NCL, namely: ‘pemakai meno’. . is a term given to an area of land selected by pioneers of a longhouse community who are usually related to each other for the construction of ‘a longhouse with sufficient rooms arranged in a row, all joined together to accommodate the families’ And the longhouse will just expand to with new families’. And it is within the ‘pemakai menoa’ that the longhouse community will establish ‘temuda’ which is an area of land accessible for farming and ‘pulau’ or ‘pulau galau’ which is the forest area where there may be rivers for fishing and the jungles for gathering of forest produce. The other Iban terms are ‘tembawai’ for old longhouse site; ‘tanah umai’ for cultivated land within ‘pemakai menoa’ and ‘pendam’ is cemetery. However, ‘pemakai menoa’ has its boundary usually based on streams, watersheds, ridges and permanent landmarks, separating it from another longhouse community (see: Superintendent Of Lands & Surveys, Bintulu v Nor Anak Nvawai & Ors And another appeal [2006] 1 MLJ 256 [COA]). (21) In respect of the intended purpose, NCL were created and existed by and for the natives in Sarawak. NCL are basically meant: (a) for farming (‘temuda/tanah umai’) on the land within ‘pemakai menoa’ that is ‘an area of land held by a distinct longhouse or village community, and includes farms, gardens, fruit groves, cemetery, water and forest within a defined boundary (garis menoa)’; (b) for fishing in the rivers therein; and (c) for the gathering of forest produce such as bamboo, ‘damar’ (resin) and timber for building boats and houses from the jungles (‘pulau’ or ‘pulau galau’). • 19

Director of Forest, Sarawak & Anor v TR Sandah ak Tabau & Ors (suing on behalf of themselves and 22 other proprietors, occupiers, holders and claimants of native customary rights (‘NCR’) land situated at Rumah Sandah and Rumah Lanjang, Ulu Machan Kanowit) and other appeals [2017] 2 MLJ 281 (FC) • Decision – The pre-existence of rights under native laws and custom which the common law respects did not include rights to land in the primary forest which natives had not felled or cultivated but were forests which they reserved for food and forest produce. – The High Court and the Court of Appeal were not entitled to uphold a claim for NCR to land in Sarawak based on a native custom of pemakai menoa and pulau. What the law of Sarawak recognised in a claim for NCR was the custom or adat of temuda. – The decision in Nor Anak Nyawai that the rights of the native is confined to the area where they settled and not where they foraged for food was a correct statement of the law relating to the extent of native of rights to land claimed under the NCR in Sarawak 20

Director of Forest, Sarawak & Anor v TR Sandah ak Tabau & Ors (suing on behalf of themselves and 22 other proprietors, occupiers, holders and claimants of native customary rights (‘NCR’) land situated at Rumah Sandah and Rumah Lanjang, Ulu Machan Kanowit) and other appeals [2017] 2 MLJ 281 (FC) • Decision – The words ‘having the force of law’ in art 160(2) of the Constitution must be taken to mean that not all customs or usages come within the definition and implies that there are customs and usages which do not have the force of law and hence, not within the definition of law. The courts below should take into account the definition of customary laws under the Sarawak State Laws which had been defined to mean ‘customs which the laws of Sarawak recognise’. This means existing customs which have the force of law. There are customs which the laws of Sarawak do not recognise and hence do not form part of the customary laws of the natives of Sarawak. – Common law recognizes unregistered native customs but this is subject to the adherence of all tenets of customary land law. – Custom of pemakai menoa, through the establishment of pulau, fell short of the pre-requisites provided under S 5(2) of the Land Code and thus did not have the force of law under Art 160 of the Federal Constitution. 21

Director of Forest, Sarawak & Anor v TR Sandah ak Tabau & Ors (suing on behalf of themselves and 22 other proprietors, occupiers, holders and claimants of native customary rights (‘NCR’) land situated at Rumah Sandah and Rumah Lanjang, Ulu Machan Kanowit) and other appeals [2017] 2 MLJ 281 (FC) • Dissenting Judgment – The definition of law under art 160(2) of the Constitution include ‘customs and usages having the force of law’. This makes customary law an integral part of the legal system in Malaysia. Custom is a source of unwritten law. Customary law is a traditional common law rule or practice that has become an intrinsic part of the accepted and expected conduct in a community. NCR to land are sui generis. The nature and kind of rights of the natives are embodied in their customary practices and these rights could not be taken away by the government without compensation. – Customary rights associated with the practice of pulau under the concept of pemakai menoa, had not been abolished by the Sarawak Land Code or any other statutes. They remained unscathed and survived through the Brooke Orders and Ordinances of the colonial period up to the present. 22

TR Sandah ak Tabau & Ors (suing on behalf of themselves and 22 other proprietors, occupiers, holders and claimants of native customary rights (NCR) land situated at Rumah Sandah and Rumah Lajang, Ulu Machan, 96700 Kanowit, Sarawak) v Director of Forest, Sarawak & Anor and other appeals [2019] 6 MLJ 141 (FC) – Review – R 137 • Dissenting Judgment – There was no majority judgment as Justice Abu Samah, in answering the central issue in the appeals, emphatically concurred with Justice Zainun Ali that the Iban customs of pulau galau and pemakai menoa were part of Sarawak law. As there was no finality and no certainty, there was an infringement of S 78 of the CJA, resulting in a coram failure which warranted a review under Rule 137. – The decision of Justice Abu Samah on the issue of proof is to be ignored as there was a failure to show the manifest error in the judgment of the High Court which warranted interference in the fact-finding process of that court. 23

Sarawak Land Code (Amendment) Ordinance 2018 • In force from 01. 08. 2019 • Gave force of law to the custom of creating native territorial domain, including ‘Pemakai Menua’ (territorial domain) and ‘Pulau Galau’ (communal forest reserve) • Section 2 Interpretation – “document of title” means a grant, lease of State land, occupation ticket, native communal title or other document evidencing title to land whenever issued, but does not include a licence, permit or caveat; – “native communal title” means a title issued in accordance with section 6 A over a native territorial domain in the name of a person or body of persons as trustee for the native community concerned but without the right of sale or disposal, and such native communal title shall be held to be a title under this Code; – “native territorial domain” means an area or territory— (a) within or conjoining or immediately adjacent to an area where native customary rights have been created by that community in accordance with section 5; and (b) wherein members of a native community have from a date prior to 1 st day of January, 1958, exercised usufructuary rights or preserved by them for such purposes: Provided that such area or territory have not already been constituted a communal forest under Part III of the Forests Ordinance, 2015 [Cap. 71]; 24

Sarawak Land Code (Amendment) Ordinance 2018 – “usufructuary rights” means the rights or privileges exercised or enjoyed by a native community over a native territorial domain to: (a) forage for food, including fishing and hunting; (b) enjoy such rights or privileges exercisable by a native community in a communal forest constituted under Part III of the Forests Ordinance, 2015 [Cap. 71]; or (c) carry out such activities which are expressly authorized in the native communal title issued under section 6 A(3) or a permit issued under section 10(3) but subject to the terms and conditions specified therein. • Section 6 A Native Territorial Domain — (1) Any native community may, within a native territorial domain, claim usufructuary rights exercised and enjoyed by members of that community. (2) Any claim under subsection (1) shall be made to the Superintendent in such form as may be provided by the Director with all evidence in support of such claim: Provided that— (a) any area claimed as native territorial domain shall not exceed five hundred hectares; or (b) the Minister may, with the approval of the Majlis Mesyuarat Kerajaan Negeri in accordance with the Rules made herein, allow a claim of up to one thousand hectares. 25

Sarawak Land Code (Amendment) Ordinance 2018 (3) If the Director approves the claim, the Superintendent shall issue a native communal title, describing the area as a native territorial domain, which shall be used exclusively by the native community for agricultural purpose or such other purposes as may be approved by the Majlis Mesyuarat Kerajaan Negeri and subject to any other terms and conditions that the Director may impose: Provided that the native communal title shall— (a) be issued in the name of a person or body of persons who shall hold the native territorial domain in trust for the native community named in the native communal title in accordance with rules made hereunder; (b) be in perpetuity, free of any premium, rent or other charges; and (c) not be assigned or transferred to any person who is not a member of the native community named therein. (4) In the event that the Director rejects the claim, any person aggrieved by his decision may within thirty days from the date when the decision of the Director is conveyed to him, appeal to the Minister who shall consider the appeal. (5) Where any question shall arise as to whether any person is a member of the native community named in the native communal title issued under subsection (3), the person or body of persons in whose name the native communal title is issued shall refer the same to the District Native Court for a decision, and such reference shall be instituted and dealt with in accordance with rules made under the Native Courts Ordinance, 1992 [Ord. No. 9/92]. (6) Any claim for a native territorial domain shall not be made or allowed in respect of any area or land where, before the coming into force of this section, there is a final decision by a court of competent jurisdiction that no usufructuary rights have subsisted or have been lost or abandoned by members of the native community making that claim. . 26

Sarawak Land Code (Amendment) Ordinance 2018 • Section 15 Protection of native customary rights (1) Without prejudice to sections 18 and 18 A, where native customary rights have been lawfully created over State land which has been issued with native communal title under section 6 A, such land shall not be alienated or be used for a public purpose until all native customary rights have been surrendered or terminated or provision for compensating the persons entitled thereto have been made in accordance with section 5(3) and (4). • Section 213 Rules (1) The Majlis Mesyuarat Kerajaan Negeri may make rules generally for carrying out the provisions of this Code and to guide the public officers charged with its administration in the exercise of their powers and duties and, in particular, such rules may provide for (k) matters related to native territorial domain. 27

Bornean Experience • Article VIII Malaysia Agreement – The Governments of the Federation of Malaya, North Borneo and Sarawak will take such legislative, executive or other action as may be required to implement the assurances Undertakings and recommendations contained in Chapter 3 of, and Annexes A and B to the Report of the Inter-Governmental Committee signed on 27 February, 1963, in so far as they are not implemented by express provisions of the constitution of Malaysia. • Paragraph 26(4) Report of the Inter-Governmental Committee 1962 – (4) The domicile of the Supreme Court should be in Kuala Lumpur. Normally at least one of the Judges of the supreme Court should be a Judge with Bornean judicial experience when the Court is hearing a case arising in a Borneo State; and it should normally sit in a Borneo State to hear appeals in cases arising in that State • Political will? 28

Keruntum Sdn Bhd v The Director of Forest & Ors [2018] 4 CLJ 145 (FC) • Decision – Application dismissed. – Art 128 of the FC deals specifically with the jurisdiction of the Federal Court but not its constitution or composition. – It is Art 122 of the FC which provides for the constitution of the Federal Court. However, Art 122 of the FC does not expressly provide that amongst the judges of the Federal Court, there must be one with Bornean judicial experience. – Reference was made to s 19 of the Malaysia Act 1963 and Art 123 of the FC on the qualification for appointment of a judge of the Federal Court. Neither of these two provisions stipulates that the qualification for appointment of a judge of the Federal Court having Bornean judicial experience is either required or preferred. – The composition of the Federal Court is determined by the Chief Justice. S 74 of the Courts of Judicature Act remained unamended subsequent to the IGC. – Section 74 of the CJA, read together with art. 122 of the FC, does not impose a legal requirement that the Federal Court, when hearing or disposing of cases, must consist of at least one judge with Bornean judicial experience. 29

Keruntum Sdn Bhd v The Director of Forest & Ors [2018] 4 CLJ 145 (FC) • Decision – The recommendation in Para 26(4) was never implemented and Article VIII of the Malaysia Agreement 1963 did not mandate the Judiciary to take action to implement the recommendation, and thus renders in unenforceable by courts. – A judge ‘with Bornean judicial experience’ in the context of the IGC is not a person ‘of Borneo’ by reason of his birth and residence in the Borneo States. The term ‘Borneo judicial experience’ puts emphasis on ‘judicial experience’ and not the origin of the judge. – The term ‘judicial experience’ must, in its plain and ordinary meaning, mean that a judge who has the experience of having served as a judge in any of the Borneo States and, in his judicial capacity as a judge, has heard and disposed of cases arising from a Borneo State before any court whether subordinate court, High Court, Court of Appeal or the Federal Court when that particular court sits in the State. 30

TR Sandah ak Tabau & Ors (suing on behalf of themselves and 22 other proprietors, occupiers, holders and claimants of native customary rights (NCR) land situated at Rumah Sandah and Rumah Lajang, Ulu Machan, 96700 Kanowit, Sarawak) v Director of Forest, Sarawak & Anor and other appeals [2019] 6 MLJ 141 (FC) – Review – Rule 137 • Decision – On the issue of the lack of a judge with ‘Bornean judicial experience, the law is well settled (per Keruntum Sdn Bhd v The Director of Forests & Ors [2017] MLJU 2437; [2018] 4 CLJ 145) that a litigant could not enforce the recommendation under para 26(4) of the IGC Report that normally the Federal Court when hearing an appeal from a case that originated from the Borneo States should be comprised of at least one judge with ‘Bornean judicial experience’. – This was because that recommendation was never implemented by legislative, executive or other action by the governments of the Federation of Malaya, Sabah or Sarawak and was never incorporated into the Federal Constitution. The decision in Keruntum was correct and should be followed. 31

TR Sandah ak Tabau & Ors (suing on behalf of themselves and 22 other proprietors, occupiers, holders and claimants of native customary rights (NCR) land situated at Rumah Sandah and Rumah Lajang, Ulu Machan, 96700 Kanowit, Sarawak) v Director of Forest, Sarawak & Anor and other appeals [2019] 6 MLJ 141 (FC) – Review – Rule 137 • Dissenting Judgment – The judges who rendered the 2016 judgment had never served at the High Court of Sabah and Sarawak. Thus, there was a complete lack of a judge with ‘Bornean judicial experience’ in the panel that heard the three appeals, thereby occasioning a breach of s 74 of the CJA read in tandem with para 26(4) of the IGC Report qua article VIII of the Malaysia Agreement 1963. There was, accordingly, a coram failure for breach of s 74 of the CJA – s 4 of the CJA renders it of superior and special status to all other legislations besides the Federal Constitution – As s 74 of the CJA was a quasi-constitutional provision, and an extension of the constitutional mechanism, one had to look behind the words therein in the context of the Malaysia Agreement 1963 and related historical documents. – Since s 74 was silent on the ‘Bornean judicial experience’ point, and there was no other express statutory guidance on how the CJ ought to exercise his/her discretion of empanelment, the general requirement of having a judge of Bornean judicial experience, vide para 26(4) of the IGC Report read in tandem with article VIII of the Malaysia Agreement 1963, ought to be read into s 74 of the CJA. – Accordingly, s 74 imposed on the CJ a duty to ensure that a judge with Bornean judicial experience was a member of a panel that decided any appeal emanating from Sabah and Sarawak. A plain reading of article VIII of the Malaysia Agreement 1963 imposed an obligation on the Judiciary, as an organ of the State, to observe and implement the recommendations made in para 26(4) of the IGC Report. 32

TR Sandah ak Tabau & Ors (suing on behalf of themselves and 22 other proprietors, occupiers, holders and claimants of native customary rights (NCR) land situated at Rumah Sandah and Rumah Lajang, Ulu Machan, 96700 Kanowit, Sarawak) v Director of Forest, Sarawak & Anor and other appeals [2019] 6 MLJ 141 (FC) – Review – Rule 137 • Dissenting Judgment – The common-sense approach was to construe the term ‘or other action’ in para 26(4) of the IGC Report as including the judicial branch of government. Giving para 26(4) its due effect and place in s 74 of the CJA would honour the terms and conditions agreed to by our founding fathers in the formation of Malaysia and enhance public confidence in the Judiciary – The Keruntum judgment took a simplistic approach and ignored the importance and significance of the Malaysia Agreement 1963 and the IGC Report in the context of the formation of Malaysia. Assurances were given by the respective signatories to the Malaysia Agreement 1963 with the intention that the same would be implemented and given the sanctity they deserved since they formed the basis of the birth of a nation. – The Keruntum judgment suffers in three aspects: • The Federal Court ought to have applied the common law interpretation of international treaties; • The Federal Court ought to have had due regard to past judicial decisions on the legal effect of Malaysia Agreement 1963; and • A fortiori the Federal Court ought to have accorded the Malaysia Agreement 1963 its proper construction to hold that the Judiciary is under the legal obligation to abide by para 26(4) of the IGC Report. 33

Datuk Hj Mohammad Tufail Mahmud & Ors v Dato’ Ting Check Sii [2009] 4 CLJ 449 (FC) • Decision – Article VIII of the Malaysia Agreement provides that the Government of the Federation of Malaya, North Borneo and Sarawak will take such legislative, executive or other action as may be required to implement the assurances, undertakings and recommendations contained in, inter alia, Annexes A and B to the IGC Report, in so far as they are not implemented by express provision of the Constitution of Malaysia. – The court found that in including the Federal Court in the interpretation of “all courts other than Syariah Courts” and the 4(d) Safeguard on the other hand, the Sarawak Bar would seem to continue to have the exclusiveness as encapsulated in s. 8 of the Advocates Ordinance of Sarawak, which was enacted in 1953 and also when Malaysia was formed. – Such interpretation will be consistent with para. 26(3) of the IGC Report which provides for a new Federal Court as the appellate court for the three different jurisdictions. – This is supported by para. 26(4) of the same report which distinguishes “a case arising from a Borneo State” from others and hearing it outside Sarawak. 34

Datuk Hj Mohammad Tufail Mahmud & Ors v Dato’ Ting Check Sii [2009] 4 CLJ 449 (FC) • Decision – The court further reiterated the pronouncement in Dato’ Menteri Othman bin Baginda & Anor v. Dato Ombi Syed Alwi bin Syed Idrus [1981] 1 MLJ 29, stating that provisions of the constitution must be construed broadly and not in a pedantic way, with respect to the language used and traditions and usages which have given meaning to that language. – The court found that reading the Cobbold Commission Report, the IGC, Malaysia Act, Advocates Ordinance of Sarawak and all culminating into art. 161 B of the Constitution the plain and obvious intention is that legal practitioners in Sabah and Sarawak be protected from intrusion of practitioners from other regions, particularly West Malaysia. 35

Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] 3 MLJ 72 (FC) • Decision – The spirit and intention of the Agreement Relating to Malaysia 1963 and the Report of the Inter- Governmental Committee has not in any way been contravened. The respondent has not shown to the court's satisfaction that the amendment is unconstitutional and since it is trite that a statute is always presumed constitutionally valid until proved otherwise the court therefore rules that the amended s 65(1)(c) of the Act is valid. – In coming to its decision, the court interpreted the constitutionality of the amendment in the context of the IGC Report and the Malaysian Agreement, specifically the special position of Sabah and Sarawak and state authority with regard to immigration. 36

Quo Vadis, Native Customary Rights? • The constitution is to be interpreted in a manner which echos the ethos of the foundation of the country, with reference to the Malaysia Agreement 1963 and the IGC Report 1962 as they stipulate the fundamental principles for fulfilling the aims and functions of the formation of Malaysia • NCR rooted in the foundation of the country • Need for implementation of rule requiring judges with ‘Bornean judicial experience’ • Duty of the government to protect the sanctity of NCR • Respect Federal Court decision in Madeli, that government title is subject to native rights over such land • Challenge the 2018 amendment – Article 13 Federal Constitution? • Creation of Land Tribunal? • Ungraded Native Court? 37

Q & A Thank you for listening 38