Federal Court to rule on its own decision in S'wak NCR case
The final act in a long-running native customary rights legal battle involving two tracts of land totalling nearly 18,000ha in Kanowit-Ngemah is due to be decided by the Federal Court tomorrow.
Lawyers acting for village head TR Sandah Tabau and Siew Libau filed an application to review the Dec 21, 2016 decision of the Federal Court in their case of Director of Forests, Sarawak, and Anor v TR Sandah and Ors...
The final act in a long-running native customary rights legal battle involving two tracts of land totalling nearly 18,000ha in Kanowit-Ngemah is due to be decided by the Federal Court tomorrow.
Lawyers acting for village head TR Sandah Tabau and Siew Libau filed an application to review the Dec 21, 2016 decision of the Federal Court in their case against the director of the Sarawak Forestry Department.
The case has a long history. On May 27, 2011, the High Court sitting in Sibu held that Sandah and his community had native customary rights over the entire 5,639ha of land that was leased by the Sarawak government to Rosebay Enterprise Sdn Bhd.
In the case of Siew, the area of interest covers 11,822ha. There were initially about nine longhouses that sued Rosebay, but the High Court held that only Siew's longhouse had successfully established native customary rights.
Native customary rights are based on inheritance by virtue of the Iban custom of pemakai menoa and pulau galau.
Pulau galau is the term given to land reserved by a village to forage, hunt or fish. This land is generally left untouched so that the forest can regenerate. Pemakai menoa, meanwhile, is the entirety of the area the village considers as its property. It includes the longhouse area as well as the pulau galau area.
The decision of the High Court in Sibu was later upheld by the Court of Appeal.
However, on Dec 21, 2016, the Federal Court in Putrajaya reversed the decisions of both the Court of Appeal and High Court, thus denying the principle of native customary rights to Sandah and Siew (fourth from left).
A full Federal Court panel is now scheduled to deliver a decision on the applications to review that judgment.
The review applications were jointly heard on July 15, 2019, at the Federal Court.
"We believe that the Federal Court gave a split decision on that point of law in 2016. We are now seeking a review of that split decision," lawyer Clarice Chan told Malaysiakini.
A panel of five judges was initially set to rule on the decision but one, Federal Court judge Abdull Hamid Embong (photo), has retired.
"It has been submitted, among others, that the appeal was a 'hung' decision, i.e., on the questions of law, the panel was split 2-2 on its judgment."
"In addition, arguments on infringements of law and lack of quorum were also raised," said Chan, who is representing Sandah along with Joshua Baru and Yogeswaran Subramaniam.
Additionally, the applicants are contending that none of the judges who heard the appeal had sufficient experience in the traditions of Borneo to hear the case.
"The case essentially involves the enforceability of Sarawak native customary rights.
"As such, the panel in the appeal was said to be improperly constituted and accordingly, any decision of such panel would be null and void," claimed the lawyers.
It is understood that the land has yet to be valued. It was set to be assessed by the court registrar but due to the appeals, no assessment has been carried out.
Are you sure you want to delete this comment?
This action cannot be undone.