Friday, 9th Sep 2011
Yesterday, 8 Sep 2011, the Federal Court dismissed an appeal to try a case seeking to regain native customary rights (NCR) for indigenous lands in Sarawak. The appeal by group of Sarawakian indigenous people over the lands they are living in was dismissed by a Federal Court’s three-man panel led by Chief Justice Tun Zaki Azmi who was accompanied by by Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum and Federal Court judge Datuk Seri Md Raus Sharif. The judges dismissed the appeal saying it was not “proper to do so”. “In my opinion, there seems to possibly be other grounds for challenging the unconstitutionality of section 5(3) and (4) of the Code but unfortunately... these were not raised or properly canvassed before us,” Zaki told the court. On the question of whether Sarawak’s state laws on tribal land issues was unconstitutional, Malanjum and Zaki declined to answer citing insufficient material while Shariff said the extinguishment was constitutional. The decision of these three judges especially the one made by Chief Justice Tun Zaki Azmi and Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum had drwan criticism and negative comments by the public and the Malaysians especially which touched on “whether section 5(3) and (4) of the Sarawak Land Code relating to the extinguishment of native customary rights are ultra vires Article 5 (Right to life) and Article 13 (right to property) of the Federal Constitution.”
One of the critic of their decision was from a Law Prof Abdul Aziz.
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| Sarawak is the Only State in Malaysia beside Sarawak that does not respect Article 13 of Federal Constitution "the Right to Property". Land Grab is something normal in Sarawak. |
A law professor said Chief Justice Zaki Azmi and Chief Judge of Sabah and Sarawak Justice Richard Malanjum, could have abdicated their oath of office by their refusal to interpret the question of law posed to them.
The question posed before the court was “whether section 5(3) and (4) of the Sarawak Land Code relating to the extinguishment of native customary rights are ultra vires Article 5 (Right to life) and Article 13 (right to property) of the Federal Constitution.”
Islamic International University professor Abdul Aziz Bari said by refusing to deal with the constitutionality issue, the Federal court has abdicated its duty.
“Under the Federal Constitution, the Federal Court which is the highest court of the land is essentially the constitutional court of the country; the main tribunal whose major duty is to take care of the constitution,” he said.
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Professor Abdul Aziz: Constitutional question: Judges let public down |
Abdul Aziz pointed out that their refusal meant that they had failed to fulfill their oath when taking office by saying “I will faithfully discharge my judicial duties in that office to the best ability, that I will bear true faith and allegiance to Malaysia, and will preserve, protect and defend its constitution.”
The don added that the court is the custodian of justice, so the judges have let the citizens down for the constitution is the supreme law of the land, one that protects them from arbitrariness whether in the form of laws passed by the legislature or through executive decisions.
“It is the duty of the judiciary to declare the rights of the citizens, being custodial of justice,” he said.
Yesterday Zaki and Malanjum refused to interpret the constitutional question affecting the Bato Bagi land case involving native customary right land in Sarawak which was seized to build the Bakun dam.
Zaki had cited the issue was not properly canvassed before the court to decide, while Malanjum said the lawyers had not fully assisted the court when the question posed was staring at the parties.
Cold feet at the bench?
Abdul Aziz said it is only the constitution which is left to protect the rights of poor indigenous Sarawakians.
“The decision, despite ruling that the deal was legal, did not base it on the constitution; something that the court was asked specifically by that aggrieved group of citizens. The court must decide, one way or the other, how it sees the issue. It cannot leave the matter open like it did today(yesterday),” he emphasised.
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| Baru Bian and the Land Owners |
He noted the project itself is essentially “an environmental disaster”.
Abdul Aziz said the court has a history of being afflicted with cold feet when confronted with critical cases like these, this case not being the first.
“When the then Supreme Court was asked to decide on the constitutionality of Malaysia’s formation way back in 1963, the court at that time headed by Chief Justice Thomson (an expatriate), ruled in Tunku Abdul Rahman’s favour. A United States paper has also described the court as the least powerful of the three branches of executive, legislature and judiciary.”
“So the people have to decide what to do next; the battle in court is obviously over.”
‘Case cannot be good authority’
Abdul Aziz said from the law standpoint when the decision is not decided unanimously, then there is a loophole.
“Since there is only one judge who made a ruling (on the constitutional question) on it, this case cannot be a strong authority.
“In any case, one wonders why the two did not make up their mind? Is it a case of just wanting to let go this one and later the court can take a more restrictive approach?” he asked, adding that the bottom line is the same; that the land grab is now deemed legal and the citizens have lost.
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| Under Taib: NCR Land is a State Land but where are the rest of the dayak politicians or so called those who fight for the dayak. People like Masing, Jabu, Mawan and Manyin has lost their balls! |
The law expert said the right to property is guaranteed by the constitution under Article 13 of the supreme law of the nation.
“There seems to be a kind of politics or manoeuvring here,” observed Abdul Aziz.
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