Chief Judge of the High Court of Sabah and Sarawak Richard Malanjum says that under the common law, Native Customary Rights (NCR) pre-existed any statutes and land laws.
“There are citizens from Hong Kong and Taiwan who have been given the status of native (anak negeri). Judges of the Native Courts gave them the ‘Sijil Anak Negeri’. There are cases, it is a fact.
“Sorry to those Native Courts,” he revealed in his keynote address at a symposium on Sabah Native Rights: Issues, Challenges and the Way Forward held at Universiti Malaysia Sabah yesterday.
In the audience were several native court judges.
Malanjum said some rich non-natives married native girls and used the native spouse to buy native title lands that should only pass among natives.
“They married the native, but the real owner (of the native title) is a non-native,” he said.
Malanjum called on Sabah leaders, especially native leaders, to reflect on the problems plaguing natives.
‘NCR pre-existed any land laws’
He said more can be done by the state government to protect the rights of the natives.
“One thing the authority can consider is to establish a Land Tribunal to hear land-related cases and not throw to courts every land-related case. The Court relies on evidence as in Evidence Act and it is not easy to provide evidence in court on native customary lands.
“(However) a tribunal does not strictly follow the Evidence Act, perhaps the government should consider establishing a tribunal,” Malanjum said citing as an example the Waitangi Tribunal in New Zealand.
The senior judge made it clear that his talk should not be construed as a view from the bench but from him as an ordinary citizen and leader of Pusaka (Pusat Sumber Adat dan Mediasi Anak Negeri Sabah) which he founded with a group of lawyers and which co-organised the two-day symposium with UMS’ School of Social Science.
Malanjum said Pusaka was founded to document the traditional customary laws or “adat” of the various indigenous societies of Sabah, handed down from their forebears and which had become the basis of their culture.
He also pointed out that under the common law, Native Customary Rights (NCR) pre-existed any statutes and land laws.
“The accepted court pronouncement is that native do not own land but is part and parcel of the land,” he said.
Malanjum also explained that while Section 5 of Sabah Land Ordinance stipulated that “the whole land of Sabah belongs to the government”, the court’s position when it comes to dispute between native land owner and the authority is guided by the principle that “the government is in a fiduciary position to protect the interest of the natives.”
“Whenever the court deliberates on cases that potentially will erode NCR, the court shall weigh the ‘adverse effect’ on the natives…,” he said explaining how the laws of the country, as in other countries like Canada and South Africa, are set to respect and protect native rights.
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