On the 20th of December 2016, the Federal Court in Putrajaya reversed the decisions of both the Court of Appeal and High Court of Sibu in the case of Director of Forest, Sarawak & Anor v TR Sandah & Ors. The appellant in the case was the State Government while the Respondents were the Ibans and natives of Sarawak. The respondents claimed Native Customary Rights (NCR) over 5,639 hectares of land which the Respondents and their ancestors inherited by virtue of the Iban custom of pemakai menoa and pulau galau. The subordinate courts initially granted the Respondents NCR over the claimed area of land in Kanowit-Ngemah, Sarawak before the Federal Court reversed the decision and deprived the natives of their NCR.
This commentary aims to simplify and analyse the judgment made in the Federal Court regarding the TR Sandah case and its impact onto the natives of Sarawak’s rights to land.
The native customary rights to land mean the world to the Dayaks (Photo credits: Malay Mail Online)
II. Brief Facts of the Case
The term pemakai manoa and pulau galau mentioned in the trial and appeals can be defined as an area of land held by a distinct longhouse or village community that includes farms, gardens, fruit groves, cemetery, water, and forest within a defined boundary (garis menua). Pemakai menoa also includes temuda (cultivated land that has been left to fallow); tembawai (old longhouse sites); and pulau (patches of virgin forest that have been left uncultivated to provide the community with forest resources for domestic use).
The High Court of Sibu on the 27th of May 2011 held that the Respondents have NCR over the entire 5,639 hectares of land which was leased by the State Government of Sarawak to Rosebay Enterprise Sdn Bhd. The decision was made in virtue of the respondents’ rights under their custom termed as pamakai menoa and the principles of common law.
The appellants then appealed to the Court of Appeal regarding a tendered evidence of an aerial photograph of the disputed land taken in 1951. The appellant contended that based on the photograph, out of the 5,639 hectares of land, only 2,802 hectares of cleared and cultivated land was rightfully NCR under the custom of temuda (cultivated land that has been left to fallow) whilst the rest of 2,712 hectares of land fell under the custom of pulau galau and pemakai menoa, which should not be recognised as NCR by the court, as they were uncultivated and virgin forests.
Hitherto, the subject matter before the court then was about the remaining 2,712 hectares of land that was considered as primary forest and categorised by the respondents as pemakai menoa under the Iban native custom of pulau galau (patches of virgin forest that have been left uncultivated to provide the community with forest resources for domestic use). The Court of Appeal, on the issue raised, reaffirmed the High Court of Sibu’s decision. The appeal was dismissed on grounds that the definition of law in article 160(2) of the Federal Constitution  indicated that common law was to be applied in the State of Sarawak, and the common law applicable in Sarawak recognised the legal force of pemakai menoa and pulau galau. These customs had been recognised since the 1800s and had not been expressly repealed by subsequent legislation.
In the appeal made at the Federal Court, the appellants contended that under Sarawakian law, the appellants could not acquire NCR to the primary forest as there was no statutory recognition of any native custom that enabled NCR to be acquired over uncultivated areas or forests not felled for cultivation nevertheless used by natives to forage for food and other jungle resources.
III. ISSUES ADDRESSED IN THE DISPUTE
The appeal to Federal Court was on identical questions of law raised in both the Court of Appeal and High Court, namely:
From the issues mentioned above, the predominant issue here can be said to be whether the Iban customs of ‘pemakai menoa’ and the establishment of ‘pulau’ can be used by the Respondents to claim NCR over the disputed land.
IV. DECISIONS OF THE FEDERAL COURT
A. Majority Judgment
According to Article 160(2) of the Federal Constitution, what can be regarded as “law” in the Federation includes written law, the common law and any custom or usages having the force of law in the Federation.
That article in its literal sense allows customary laws in Sarawak to be practised so long as it has been authorised to be law of the land. Theoretically, the provision seeks to protect NCR from being disregarded in the maintenance of justice. The burden to prove that a custom can be considered as law lies with the party who claims it as such. Customs that have not been recognised as laws under the Sarawak State Laws as they are not integral parts of the community will render them not having the effect of law. Hence, it shall be noted that in determining the legal force of a custom, the custom must be proven to have either been recognised by pre-existing laws of the land, laws that are passed under Ordinances in the pre-Merdeka days, or that such custom is deemed as an integral part of the community at stake.
In the present case, the majority of the bench was in favour of the appellants with only one dissenting judgment. In deciding on the issue of whether ‘pemakai menoa’ and the establishment of ‘pulau’ falls under NCR of the respondents, it was explained in the majority judgement that Article 160 (2) of the Federal Constitution which states that “Law” includes "any custom or usage having the force of law in the Federation or any part thereof", implies that not all customs or usages come within the definition of “law”, due to the phrase "having the force of law" in the Article. It was held that not all customs are given such force to be established as law.
The consistency of the principle described by the learned judge was in line with a previous case, Nor Anak Nyawai, in which it was established that NCR does not extend to the areas of forests that were scavenged for in search of food or jungle produce by the native’s ancestors.
In his judgment, Chief Justice Raus also stated that the mere practice of such custom alone is not enough and if such custom was recognised, it should have brought with it the restrictions and regulations of the custom. An example of what has been recognised as law according to Sarawak’s legislations is the adat of Temuda (the custom of felling or clearing jungles and cultivating the claimed area afterwards) that was mentioned in the Tusun Tunggu (the written codification of Iban customs).
As opposed to the custom of Temuda which has been mentioned and recognised in Statutes and Orders of Proclamation made by the Rajahs and subsequently by the Legislature of Sarawak, the legislatures do not appear to have recognised the customs of pemakai menoa and pulau and such terms do not appear in the Tusun Tunggu (codification of Iban adat) or in the Adat Iban Order 1993. Thus, on the first issue raised on whether the custom of ‘pemakai menoa’ and ‘pulau’ is a pre-existing right under native customary law, the issue was answered in the negative.
Due to the absence of recognition, both the subordinate courts were not entitled to uphold NCR over the whole land. Even if the Temuda custom gave rights for natives to claim their NCR over lands, the extent of the right is limited. Pursuant to the Court of Appeal’s decision in Nor Anak Nyawai, the extent of the right is only to the area where the native community settled, not to the area where the community foraged for forest produce. The learned bench in Nor Anak Nyawai decided that the correct statement of law regarding NCR to land should be read in a restrictive manner and does not include pemakai menoa and pulau as they are both custom practices that do not equal to positive acts of community settlement, but are customs of scavenging for their livelihood.
B. Dissenting Judgment
The dissenting judge, Justice Zainun Ali, had a contradicting view with the majority bench on the contention that common law only recognises the claim for NCR on areas which form community settlement and not the area where the native community used to forage.
In regards to the customary recognition of the latter type of land, Justice Zainun Ali made a reference to Adong bin Kawau, which stated that common law, in fact, recognises the rights and interests of natives to live from the collection of jungle produce via foraging as well as from the hunting of animals in the jungle. Despite not being able to demonstrate title to the land, the Respondents had demonstrated that their interests are to engage in such activity for their livelihood and their rights cannot be taken away without compensation. The claim of NCR can be upheld by the court if there was proof that the customs and activities of the community are to include foraging, hence creating a burden on the respondent to show proof of customary practices. Justice Zainun held that, it has indeed been proven by the Respondents in the factual evidence that certain areas of land are designated for certain uses meant for certain people only and exclude those who are not a part of the community. This gives rise to a usufructuary right.
Next, the learned judge dealt with the second issue on the recognition of customs under the law, whereby the judge stated that the issue was at odds with the principles interpreted from Article 160(2) of the Federal Constitution and need not be answered. This is due to the nature of the issue which seemed to stress on the need for legislation in determining what the law is. That is not the case as Malaysia has non-legislated laws like the common law. Hitherto, the existence of legislation should not and has never been a determinant factor to prove recognition under the common law. The lack of regulation does not mean that there is non-existence of such law. Justice Zainun Ali also added that customs are sui juris in nature, they exist independently and do not find their origin in statutes. If the sui generis (unique) nature of the custom has been satisfied, then a claim for NCR is enforceable. The sui generis is that the content of native titles must not be explained by referring to only common law or the legislature- the challenge lies in understanding the nature of such rights. The nature of such customary rights should be observed through the lenses of the natives who practice those right.
Justice Zainun then proceeded to deal with the final issue at hand, which is, what is the correct statement of law regarding the extent and nature of rights to land claimed under NCR? A comparison was made between the case of Adong Bin Kuwau and Nor Anak Nyawai. The distinction between the two cases was that in Adong Bin Kuwau, there exists recognition of the aboriginal’s custom to hunt and forage for food in the uncultivated jungle which was contrary to the decision made in Nor Anak Nyawai. In Nor Anak Nyawai, it was noted that the rejection of NCR over uncultivated lands for scavenging was born out of the court statement, “otherwise, it may mean that vast areas of land could be under NCR simply through assertions by some natives that they and their ancestors had roamed and foraged the areas in search of food”. Clearly, such basis of rejection was on judicial policy-making as the decision in Nor Anak Nyawai was out of fear that if it is decided otherwise, the public may now claim areas as NCR simply by asserting as such. It should be made clear that in order to avoid the floodgate of claims, the court must then decide on what kind of evidence is necessary to prove that their ancestors had foraged for food, and the standards to which it must be shown. It was also respectably noted that an evidentiary difficulty is not a justification for a complete disregard or manipulation of principles.
The third issue was then answered in the negative as Justice Zainun believed that the statement of law of the Court of Appeal in Nor Anak Nyawai on the extent of NCR land being confined to where the natives settle, is a misconception.
A. Legal Force of Customs
The interpretation of the legal force of native customs should be held to a liberal definition of "Law". Article 160(2) of the Constitution provides that native customs having the force of law does not mean that the force may only come from legislation but can also derive from common law principles which are also recognised as the law of the land (in the case at hand, the principle recognising customs which are an integral part of the community). Principally, a custom then may be a law due to its integral nature in the native community. Hence, to only rely on whether a custom has been enumerated by law is too restrictive. The law may be rigid for the sake of consistency and policy-making, but it should not be to an extent that can disproportionately harm the stakeholders. This is especially significant for the Federal Court to consider as the court establishes precedents on the claim for NCR- a detrimental precedent carries in itself injustice for as long as it is upheld.
It was explained by Justice Zainun Ali in the dissenting judgment that the custom at hand was a custom that enables the natives to maintain their livelihood. Pemakai menoa and pulau are customs of foraging land, though not physically settling on the land, for forest produce which may have been the only source of livelihood for many natives of Iban in Sarawak. Restricting such rights disables the natives from garnering those produce to maintain a living. Furthermore, it is unfair for the natives who practiced the custom and have conserved the forest area for their own benefit. Justice Zainun Ali was right on account of the existence of usufructuary rights of the natives on the land under pemakai menoa and pulau as the conservation of the uncultivated forest for their own benefit created the existence of such right.
B. Procedural Irregularity
A procedural irregularity worth noting in the appeal to Federal Court is the composition of the panel of judges. It was stated in Paragraph 26 (4) Chapter 3 of the Report of the Inter-Governmental Committee (IGC) 1962 read together with Article 8 of the Malaysian Agreement 1963 that appeals coming from Borneo states must be provided with at least one judge who is well-read and have experience in the Borneo judiciary.
In a constitutional law lecture at the University of Malaya’s Faculty of Law given by former Court of Appeal judge Datuk Seri Hishamuddin Yunus, the very same contention mentioned above was raised on the Federal Court panel which heard the case of TR Sandah. Datuk Seri Gopal Sri Ram agreed, and said that when the Malaysian Agreement was made, the Supreme Court panel consisted of 3 judges- hitherto, applying that in today’s context, there has to be at least 2 judges with Bornean experience, out of a panel of 5 judges presiding a case relating to Sabah and Sarawak’s customary interests. Datuk Seri Hishamuddin Yunus believes that although there is a moral obligation to take into account the lack of Sabah and Sarawak judges presiding in the TR Sandah case, he does not believe that Article 8 of the Malaysian Agreement has a binding effect as it is only a treaty and provisions of a treaty has to be made into law for it to be binding.
Despite that, Article 8 of the Malaysian Agreement can be argued to be binding based on the case of Che Omar Che Soh v PP where other factors such as history and Hansards were referred to in order to interpret the law. Che Omar Che Soh was built and decided on by referring to the history of Islam in Malaysia to interpret Article 3 of the Federal Constitution. Based on the contention made on Che Omar Che Soh v PP, it is possible to argue that the panel deciding the TR Sandah was per Incuriam due to the lack of inclusion of judges with Bornean experience, contrary to what has been prescribed under Article 8 of the Malaysian Agreement read alongside with Para 26(4) of Chapter 3 of the Inter-Governmental Committee Report 1962.
C. Unsettling Repercussions
The decision of the Federal Court in this case has severely impacted the administration of justice on NCR to land in Sarawak. Several cases have been decided against the natives due to the decision in TR Sandah. One of them is Delta Padi Sdn Bhd & Anor v Koo Chiok Yeok & Anor (Superintendent of Lands and Surveys Department, Sarikei, third party), in which the defendant lost an area of land at Sungai Tembawai to a local agricultural company as they were denied NCR due to the fact that the land was not cleared and uncultivated. The High Court of Sibu in the case relied on the precedent of TR Sandah in the reasoning to only acknowledge the custom of ‘temuda’ that includes cultivated cleared land.
In fact, there are legitimate concerns raised by the Sarawak Civil Society in regards to the consequences of TR Sandah decision such as; (i) the threat on a major source of ‘livelihood, socio-economic well-being, political identity and dignity of the indigenous peoples in Malaysia; (ii) increase in conflicts over customary rights lands and resources in Sarawak and Malaysia and; (iii) deprivation of the indigenous peoples of their rights to access their customary lands and resources, which will eventually lead to the dispossession of their land thus further driving them into poverty.
TR Sandah is not an isolated case of natives having their rights denied. Recently, the Federal Court ruled against the natives and in favour of the Sarawak state government and oil plantation firms in the Federal Court case of TR Masa ak Nangkai. This put an end to a 13-year legal fight by more than 80 native families to regain their ancestral land in Sri Aman. Similar to TR Sandah, this ruling could potentially have repercussions on some 400 pending native land disputes. Having regard to the adverse effects of the precedent, and in hopes for a better administration of justice, it is timely that the Federal Court review the decision in TR Sandah, to take into account the need to protect the natives’ interest before arriving at a decision.
This article was written by Zafirah Jaya (Edited by Hanan Khaleeda)
  2 MLJ 281
 See footnote 1 at 329
 Director of Forest, Sarawak & Anor v TR Sandah Ak Tabau & Ors  1 MLJ 161.
 Federal Constitution art 160(2).
 See footnote 1 at 294
 See footnote 4 above
 See footnote 4
 See footnote 1 at 310
 See footnote 8
 See footnote 1 at 324
See footnote 1 at 328
 See footnote 1 at 329
 See footnote 1 at 342
 See footnote 1 at 349
 See footnote 1 at 348
 “Law Firm Applies Applies Application for Review of Decision in Tuai Rumah Sandah Case”,The Borneo Post Online, 5 November 2017 <http://www.theborneopost.com/2017/02/03/law-firm-files-application-for-review-of-decision-in-tuai-rumah-sandah-case/>.
  2 MLJ 55
  MLJU 1320, para 30.
 “Federal court decision threatens to dispossess indigenous communities”, the Malaysian Insider, 22 Dec 2016 <https://www.malaysiakini.com/news/366971#XCvVJV8UH7UdiPh7.99>
 “End of road for Sarawak natives in land battle as court rules in favour of developers”, The Malaysian Insight, 7 November 2017 <https://www.themalaysianinsight.com/s/21797/>