Baru: Masing off the mark in justifying Federal Court decision
KUCHING: Deputy Chief Minister Tan Sri Datuk Amar Dr James Masing’s attempt at explaining and justifying the Federal Court’s perverse decision in the Tuai Rumah Sandah case is completely off the mark, whether from a lawyer’s standpoint or an anthropologist’s, as he claims his opinion to be.
In stating this, state PKR chairman Baru Bian said unfortunately, in his eagerness to be the first one to express an erudite opinion on the matter, Masing had neglected to avail himself of the facts of the case and the grounds of judgment.
Baru, who is Ba Kelalan assemblyman, said the Federal Court did not have an issue with the existence or even the definition of ‘ pemakai menoa’ ( territorial domain) or ‘ pulau galau’ ( communal forest reserve).
“In fact, they agreed that the custom of pemakai menoa and pulau galau has been in existence since time immemorial but the ultimate question they considered was whether such adat or customs has the force of law,” he said in a press statement received here yesterday.
Masing, in commenting on the Federal Court’s decision on Tuesday, said the court had the liberty to define the concept of pemakai menoa and pulau galau as native customary rights ( NCR) land because the Majlis Adat Istiadat - the definitive authority on the status of the land - had not come up with a clear definition on the status of these lands.
Baru said Masing must know that the argument submitted by the state government’s Counsel Datuk JC Fong and the companies’ counsels who concurred with him was that it had no force of law in Sarawak because no Sarawak laws had been passed to recognise such adat or custom as a means to create rights over land.
“The majority of judges agreed with that argument. We strenuously disagreed and we are thankful that there was one dissenting judge who agreed totally with our views.
“As for blaming Majlis Adat Istiadat, Masing was again unfortunately unaware that we had submitted in court all the definitions of pemakai menoa and pulau galau from AJN Richards, the late Tan Sri Gerunsin Lambat ( former president of Majlis Adat Istiadat), Prof Dimbab Ngidang, Nicholas Bawin (former deputy president of the Majlis Adat Istiadat) just to name a few experts in this matter. The definition of these two terms was never in dispute.”
Besides that, Baru said in order to avoid having to continuously place the fate of our native rights in the hands of people who might have no appreciation of native customs and adat, and the possibility of completely f lawed and unsound outcomes, he tabled a motion and a private member’s Bill on two occasions in the State Assembly to amend the definition of Native Customary Rights under Section 2 of the Sarawak Land Code to include pemakai menoa and pulau galau.
“Unfortunately not one native YB ( elected representative) from the BN supported my attempts especially when we voted whether my private Bill should be tabled or not. Perhaps, it is time for the Dayak voters to ask their respective state representatives why they were not with me then on this issue.
“Even if my private Bill was thrown out because it came from the opposition, any BN YB ( elected representative) or minister could have taken it up and make it their own Bill, like what Prime Minister Datuk Seri Najib Tun Razak is doing now with the hudud Bill.”
Baru said now was the time for the Dayaks to ask themselves why the state wants to deprive them of their land by appealing in this case when his law firm won in the High Court and Court of Appeal.
“Now the state will claim that huge tracts of land are state land. Who stands to gain from this judgment?
“It is time the people realise that they get the government they vote for. Are they ready to make the change now? This decision has enormous repercussions for the natives of Sarawak.”
He said if Masing and other Dayak elected representatives were serious about this matter, the power was still in their hands ( BN) to pass a law to recognise this custom.
“For my part, I will do my final attempt to bring this for a review at the Federal Court, and whatever the outcome, I can eventually say to the native people of Sarawak, ‘I have fought the good fight, and did everything in my power as a lawyer and as a YB ( elected representative) to protect our ‘pesaka’ and our ‘daging darah’, and retire in peace!”