SARAWAK’S land rights lawyers and activists were stunned after the Federal Court yesterday dismissed an application by a group of Dayak native customary rights (NCR) landowners to review a landmark 2016 decision on their rights.

In a four-to-one majority, the bench of Chief Judge of Malaya Azahar Mohamed, Alizatul Khair Osman Khairuddin, Mohd Zawawi Salleh and Idrus Harun ruled in favour to dismiss the application on the grounds that it was more of an appeal rather than a judicial review.

Chief Judge of Sabah and Sarawak David Wong Dak Wah was the dissenting judge.

“This is shocking,” said one of Sarawak’s leading land rights lawyers, Dominique Ng.

“This is a ridiculous way to dismiss such an important landmark case,” Ng said, referring to the dismissal on technical grounds.

He said if the application had been heard, there was no way the appellants could lose the review.

“How could we lose when the (Sarawak) Land Code has already been amended to correct the decision (of the Federal Court in 2016) in the first place?”

Voon Lee Shan, another land rights lawyer, said the ruling yesterday gave the impression that no NCR cases brought by the Dayaks “could be won against the (Sarawak) state government and companies that were alienated with NCR land in future”.

“These lands when alienated by the state government to private companies and government-controlled companies may encroach into the pemakai menoa and pulau galau of the Dayak land,” he said.

“Pemakai menoa” is an Iban term referring to a territorial domain of a longhouse community where customary rights to land resource were created by pioneering ancestors while “pulau galau” is the communal forest reserve.

Voon, who is also president of the pro-secession Parti Bumi Kenyalang (PBK) said the reason it’s difficult for NCR landowners to win is because “the judges may wish among other factors, consider the huge investments involved as part of its decision”.

“The court may wish to consider not to leave the land idle without cultivation because leaving the land idle will not give any revenue to the government.

“These grounds may not appear in the judgment but the court could be influenced by such thought.”

He also questioned why there was only one judge with Borneo judicial experience on the bench.

“The judges, who are normally are from Malaya, may not know the spiritual attachment of the Dayaks to their NCR Land.

“In Malaya, there is no NCR land but wakaf and mukim. It is for this reason, we need more judges sitting in appeal courts be from Borneo when cases of such importance are before the court.”

Voon said the Dayaks also need to know how the law works and how politics play a part in “taking away their land”.

Dayak National Congress president Paul Raja said the ruling marks “a dark day of justice for the Dayaks of Sarawak”.

“The entire Dayak community are affected by the decision, not just the Iban although the case arose from the Iban community.”

Raja, also a lawyer, said the court’s decision to “gun down the case on technical grounds is not a good sign at all”.

Baru Bian, who had handled the cases before he was appointed works minister, said with the application for a review dismissed, it means the issues which the legal fraternity and the Dayaks hoped to clarify and determine, which is whether pemakai menua and pulau galau (NCR over land in Sarawak) has the force of law, remains unanswered.

In the 2016 Federal Court decision on an appeal filed by the Sarawak government, two of the four judges ruled that the customary practice of pemakai menoa and pulau galau did not carry with it the force of law within the meaning of Article 160 of the federal constitution, and thus could not be legally enforced.

That ruling meant the Dayaks overnight lost hundreds of thousands, if not a million hectares of land they had believed for centuries they owned. – September 12, 2019.