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Extracted from Malaysiakini
Slow court process gives native
landowners the jitters
Apr
30,
The slow judicial process in settling more than 100 cases
involving native customary rights (NCR) land claims now before the courts in
In nearly all cases, they have taken court action either against the state
government or its agencies and private companies given rights to extract timber
or leases for oil palm planting or reforestation or for other development
projects on NCR land.
Lawyers representing the native litigants say the court, already short of
judges, is faced with a backlog of cases, and that their clients have little
alternative but to join the queue.
One lawyer,
Baru Bian (right), estimated this could take as long as three years or more
before a case is eventually heard in court - unless the government takes
immediate steps to rectify the situation by appointing more judges.
In a NCR landmark case involving Iban longhouse residents and paper and pulp
plantation companies in Bintulu, the case was brought to court in 1999. The
hearing took place in 2001 and judgment was delivered in the same year.
The Iban
longhouse residents won the case, after the court declared that their pemakai menoa (communal reserve) that
formed part of the lease issued by the government is NCR land.
The government and the companies have appealed and the Court of Appeal’s
decision is expected anytime, according to Baru.
“There are only four judges in Sarawak (two in Kuching and one each in Sibu and
Miri) and they are extremely over-worked,” lamented Baru who is in the panel of
seven lawyers handling some 120 cases already filed in court.
Long
hearing
The Advocates Association of Sarawak has called for the appointment of more
judges, and Baru suggested at least an extra judge in each of the three main
towns.
Giving an example of how long a case could now come up for hearing, Baru said
if the filing of a case was made eight months ago, the hearing date is mostly
to be decided today and fixed for hearing in mid-2007 at the earliest.
Then the hearing itself could take several weeks and in this case,
a written judgment will only be given as the judge wants to be very certain of
the grounds for his decision, he added.
“In one NCR land case I am handling, the delivery of the judgment has been
postponed at least three times,” Baru said.
In a recent dialogue session between villagers whose NCR land is affected by
logging and plantation activities and the Malaysian Human Rights Commission
(Suhakam) in Lundu, a Dayak Selako ketua
kampung (village chief) said it was taking too long a time for the
court to decide on their case.
Three postponements
The villagers went to court in 2002 to ask for the immediate revocation of the
3100-hectare lease given to Sara HL Plantations Sdn Bhd, a joint venture
company between the Sarawak Economic Development Corporation and a group of
investors from Johore and to return their pemakai
menoa to them.
The hearing has been postponed three times and is now set for May 18 in the
Kuching High Court.
Baru said in cases like this, the court is normally reluctant to allow an
interlocutory application for an interim injunction to stop a company from
continuing with physical work on the ground even though the case has gone to
court.
“The company can come to the court with documents to show how much they have
already invested and to show they have secured bank loans in the millions for
the project.”
Unless he is satisfied the plaintiffs have the means or can provide the
financial guarantee, the judge will be quite reluctant in this case to grant an
injunction, Baru said.
“As a lawyer, I will do my best to apply for one and hope there is a more
sympathetic ear”.
He said this is not the only problem that the native litigants have to face.
Most, if not all of them, are poor or have limited financial means, other than
their NCR land, and can barely manage to pay the minimum legal costs.
Their problem, according to Baru, is compounded by the fact that
no special fund has been set up to help the native landowners defend their
native land rights in court.
No financial means
An Iban lawyer Anthony Liman told malaysiakini
that in a recent case, Orang Ulu landowners attending a court hearing in
Kuching even ran out of money to buy food.
“Some concerned members of the Dayak community passed the hats around to raise
the money as the hearing took several weeks,” he said. They were accommodated
at an Orang Ulu hostel in the state capital.
Some non-governmental organisations (NGOs) sometimes helped to defray costs of
carrying parameter survey of NCR land.
A recent Suhakam seminar on human rights, attended by a large number of NGOs
involved in protecting NCR land, called on the government to demarcate NCR and
non-NCR land before issuing any new leases for oil palm, logging and other
projects to avoid conflict on the ground between company workers and the local
natives.
So far the state government has not responded, while various lawyers and NGOs
are trying to collate data and information on the number of such leases that
have been issued, and to whom they have been issued and the localities.
It is estimated there are about two million hectares of NCR land or non-titled
land which the government say is state land.