TWO of Sarawak’s foremost native customary rights (NCR) land lawyers have dismissed Deputy Chief Minister James Masing’s proposal to have all NCR land disputes be heard and dealt with by native courts.

“It is not only illogical but too simplistic an argument,” Baru Bian said, while Abun Sui Anyit dismissed Masing’s proposal as “merely playing politics”.

Masing had on Thursday said that, since the Federal Court had ruled that apostasy cases could only be heard in the shariah court, then it was only logical that NCR land disputes be heard only in native courts.

“Appropriate courts handling appropriate cases is a logical move,” Masing had argued, with support from Parti Bansa Dayak Sarawak Baru (PBDS Baru).

Its president, Cobbold John, had said it was high time that native courts be given supremacy over Dayak matters.

But Baru said Masing proposal had a serious drawback and that he had failed to understand the jurisdictional limitations of native courts.

“Unless there is an amendment to the native court ordinance, native courts, as they are now, can only handle disputes involving natives.”

The state PKR chairman and lawmaker for Ba’Kelalan said native courts had no power over many of the cases brought before the civil courts.

He said native courts did not have jurisdiction on cases involving non-natives, non-native companies or the government.

“How is a native court going to challenge the government on the issuance of provisional leases on NCR land, for example, joint ventures involving non-native companies, on NCR land?

“These are complicated legal issues.

“Native courts have no powers over such matters as such judicial powers rest with the High Court.

Baru also brushed off as “nonsense” Masing’s argument that NCR land disputes were better handled by native courts as he said their “judges are more versed in Dayak customs and laws” than civil court judges “who have no or little knowledge of Dayak custom and laws”.

Masing said their lack of knowledge meant they had no locus standi to adjudicate on matters concerning Dayak NCR land disputes.

“There’s no valid argument that Federal Courts shouldn’t or can’t handle NCR land cases on the argument that most of federal judges assigned to NCR land cases are not well-versed in native laws,” Baru said.

“If a judge is truly learned in his understanding of the law, he can give his arguments.”

Baru said there had been cases in the High Court, Court of Appeal and even the Federal Court where judges have given judgements to native landowners, like the landmark ruling in the 2012 Nor Nyawai case.

Understaffed and inefficient

Anyit, meanwhile, disagreed with Masing as he believed native courts are so understaffed and inefficient that they cannot handle more cases.

He said some cases before the native court take up to 10 years to be heard.

“In some cases, the landowners have died without getting the chance to hear the outcome of their case.”

But what Anyit bemoaned most was the lack of power bestowed on judges in the highest native courts, the Resident Native Court and the Native Court of Appeal.

Anyit said the divisional superintendent of the Land and Survey Department appeared to have more powers than the judges in these two courts.

“If James Masing wants native courts to decide, elevate the powers of the judges.

“Let the court decide, not the superintendent of land and survey.”

Anyit, however, said Masing’s proposal was at least an acknowledgment that a specialised, competent court was necessary to handle NCR land disputes in Sarawak.

“He seemed to be sidestepping Baru Bian’s backing for a proposal to set up a special land tribunal.”

In 2014, Baru had backed a proposal by Chief Judge of Sabah and Sarawak Richard Malanjum to set up a tribunal or dedicated court to look into the increasing number of NCR land cases in the state.

Human Rights Commission of Malaysia (Suhakam), in a report titled National Inquiry into the Land Rights of Indigenous Peoples, had also recommended the setting up of such a tribunal.

“That stand for a special land tribunal is still our stand today,” Baru told The Malaysian Insight.

For the past three years, Baru said he had pushed the state government to pass an ordinance to set up such a tribunal but without success.

His said the special tribunal could also help clear the backlog of land dispute cases pending at the Resident’s Native Court and Native Court of Appeal. – March 3, 2018.