PRESS STATEMENT ON THE RECENT FEDERAL COURT’S CASES OF:
1. BATO BAGI & ORS V STATE GOVERNMENT OF SARAWAK
2. JALANG AK PARAN & ANOR V STATE GOVERNMENT OF SARAWAK & ANOR
The Federal Court unanimously dismissed 2 appeals on the 8th September 2011 involving several indigenous communities affected by the Bakun Dam (1. Bato Bagi & Others V State Government of Sarawak) and a proposed pulp mill factory in Tatau (2. Jalang Ak Paran v State Government of Sarawak & Another).
The appellants were granted leave to appeal to the Federal Court on whether Sections 5(3) and (4) of the Sarawak Land Code (the sections of the code dealing with the extinguishment of NCR land) are inconsistent with the provisions on fundamental rights within the Federal Constitution in particular Article 5 which is “right to life”.
The 3 judges’ panel comprises of the former Chief Justice of Malaysia, Tun Zaki, the Chief Judge of Sabah & Sarawak, Tan Sri Richard Malanjun, and now the President of Court of Appeal, Tan Sri Raus, unanimously dismissed the appeal but on different grounds. Tun Zaki and Tan Sri Malanjun were of the agreement that there were not enough materials before them to answer the constitutional question above. They added that this only left more room for the question to be addressed at another forum before the Federal Court.
Speaking for myself as one of the Counsels for the appellants in these two cases and being involved in defending this NCR in more than one hundred cases in the High Courts, I was very hopeful to have a historic judgment but that did not materialized. Nevertheless, notwithstanding the said decision there is still a bright light at the end of the tunnel especially in the obiter or the observation made by the Chief Judge of Sabah and Sarawak Richard Malanjum who said that Section 5 of the Land Code, Sarawak, appears to give a very wide power to the relevant Minister to extinguish all customary land rights just by a stroke of a pen. He also commented that compensation for the loss of native customary rights should not be merely a monetary form but should include other factors as well. Of a concern to us who are natives is this; that any extinguishment of NCR land in Sarawak must be consistent with international requirements; for example those that are stated under the United Nation Declaration of Rights of Indigenous Peoples (UNDRIP) which requires a “free, prior, informed, consent” approach before their NCR is extinguished.
Although we failed in this appeal, I hope the State Government of Sarawak would consider the observation made by the Chief Judge for Sabah and Sarawak Tan Sri Richard Malanjun in amending Section 5 of the Land Code to put in some safe guards in the said provisions and to look into the aspect of what amounts to “adequate compensation” in extinguishing NCR land in Sarawak. If this is not done, I am proposing to the natives of Sarawak that there is only one way to go now; go for a political change both at the Federal and State Governments. I say so, because through my experience journeying this legal road for the last 20 over years to seek justice for the natives of Sarawak, it appears too winding and time consuming. A direct and a speedier option now is the “political road to justice”. I know many of our friends and supporters, natives or non-natives, were disappointed with the said Court’s decision. If you are, I hope and pray that you would agree to rise today and walk with us through the direct and speedier political road to justice.
Dated 13th September 2011
Chairman/Pengerusi PKR Sarawak