Baru to file for judicial review on Federal Court’s decision

KUCHING: Native Customary Rights ( NCR) lawyer Baru Bian will be filing for a review on the Federal Court’s majority decision yesterday before another panel of Federal Court judges, after the Federal Court ruled that the native custom of ‘pemakai menoa’ (territorial domain) and ‘pulau galau’ (communal forest reserve) had no force of the law in the state.

The decision was handed down by Court of Appeal president Tan Sri Md Raus Shariff, Federal Court judges Tan Sri Ahmad Maarop and Tan Sri Abu Samah Nordin, while another Federal Court judge Tan Sri Zainun Ali dissented.

Baru, who is Ba Kelalan assemblyman, believed that he had good ground to request for a review of the decision, as there were many things that were ‘not right’ with the decision delivered by the apex court.

“To me, the decision of a dissenting judge (Zainun) is what I see to be correct to the natives in Sarawak. She understood on our custom and agreed with us. If you read the dissenting judgement, her judgement is very clear and that is the correct judgement as far as we are concerned.

“The other three judges agreed that ‘pemakai menoa’ and ‘pulau galau’ existed in our custom but they said they’re not enforceable

To me, the decision of a dissenting judge (Zainun) is what I see to be correct to the natives in Sarawak. She understood on our custom and agreed with us. If you read the dissenting judgement, her judgement is very clear and that is the correct judgement as far as we are concerned. Baru Bian, NCR lawyer

by law. Meaning, they didn’t understand our custom and Nor Nyawai case,” he said after the court proceeding here yesterday.

Baru, who is state PKR chairman, said since the state government recognised ‘pemakai menoa’ and ‘ pulau galau’ as the custom of the Dayak community, then they should be recognised as a right for them.

“The dissenting judge said no need for ‘ pemakai menoa’ and ‘ pulau galau’ to be recognised by laws because this is a custom, which is not subjected to the laws.”

Baru said one of the things he felt was contradictory in the majority judgement was that the judges agreed with all the authorities from other Commonwealth countries that customs of the indigenous people were not subjected to statute or laws of the countries because it was a common law principle.

“Yet in the judgement of the majority, they said there’s no law of Sarawak that recognised it and therefore, it had no force of law. That is contradictory. In a first place, you agree in referring to all the authorities are not subjected to any law of the country – then, it is only subjected to proof.

“In this case, there is no doubt about it. In fact, the government agree there is in existence of ‘pemakai menoa’ and ‘pulau galau’ as custom. The only thing is can it have the force of law?”

Baru was hopeful that there would be judges from Sarawak or Sabah who really understood the custom in the new bench of judges; those who would hear the review.

“We had hoped that it would be the best gift for Christmas, not only for the Dayaks of Sarawak but also those beyond Sarawak. However, it appears that this the worst ever judgement for us in this case.”

Baru said the Federal Court’s decision would set aside more than 10 cases that had been decided after full trial in the NCR landowners’ favour at the Court of Appeals, with at least 20 more cases pending appeal at the same court.

“There are more than 100 NCR cases pending at the High Court.”