Sarawak to activate Native Court of Appeal
Tony Thien
Jun 10, 05 12:18pm

The Sarawak government is set to activate the Native Court of Appeal which is provided for under the Native Courts Ordinance 1992.

The ordinance is to be amended in next week's sitting of the state legislative assembly on the specific composition of the court which, according to well-known native customary rights (NCR) land case lawyer Baru Bian, has not sat since 1992.

The move is expected to reduce the burden of a short-handed judiciary in dealing with NCR land dispute.

The proposed amendment is to provide for the composition of members of the court to include a president who is either a high court judge or a retired judge or a person qualified to be appointed as a judge under the Federal Constitution.

Other members are the president of the Majlis Islam Sarawak or president of Majlis Adat Istiadat and any person who is or who has been appointed a temenggong (government-appointed community chief) on the recommendations of the appropriate authorities.

According to lawyers familiar with NCR land disputes, although the amendment will not have any adverse implications of similar cases brought before the civil courts, it is significant in that it seems to suggest the state government recognises the problems of disputes among NCR land-owners.

Under the present native court system, in the case of longhouse dwellers, any land dispute is referred to what is called the chief's court which is presided over by a penghulu, who is now also government-appointed.

The next tier is the native superior court which is normally presided over by a temenggong, also government-appointed, and the next steps are the district native court which is presided over by an administrative officer such as district officer who is a first-class magistrate and the highest native court before the appeal court is the Resident Native Court.

More disputes now

Disputes between natives in different longhouses over NCR land is not uncommon.

When there is an appeal to the Native Court of Appeal, the appellant can be represented by a lawyer. In the case of an appeal involving Dayak land, the head of Majlis Adat Istiadat, a state government body set up to codify Dayak adat (laws) and customs, will sit and where the case involves Malays/Muslims then the head of the Majlis Islam Sarawak will sit together with the others.

Baru, however, felt that it would be better for the presiding judge to be assisted by assessors who could include either former presidents of the bodies concerned and former temenggongs well versed in the subject matters.

With intensified land development involving coastal and rural land, there has been an increase in the number of disputes between natives who have the option either to refer such cases to the native courts or the civil courts.

According to several lawyers handling NCR land cases , there is expected to be an increasing number of such cases being referred to the courts.

Sarawak native land-owners have been inspired by a Bintulu land case involving Iban longhouse residents in which High Court judge Ian Chin ruled in favour of the Iban plaintiffs who had proven their native customary rights over a large piece of land which had been included in the temporary lease issued to a paper and pulp company in Bintulu.

The state government has appealed against that decision, but lawyers representing many natives are confident the judge's decision will be upheld.

More than 120 such cases are now pending in the civil courts, and the shortage of judges is among the main reasons for the delay in settling these cases, Baru said.