Landmark NCR verdict expected on March 4

The High Court in Sabah, Kota Kinabalu is expected to deliver another landmark decision on March 4 pertaining to Native Customary Rights (NCR).

High Court Judge Datuk David Wong is to provide a written judgment on the Appeal Case No. K41-128-2010 as the verdict is expected to have implications on many other cases before the court.

The issue is whether NCR which cannot be extinguished by legislation as affirmed in the Federal Court case of the Superintendant of Land & Survey, Miri, Sarawak vs Madeli Salleh will negate the judgment of the Tenom Magistrate Court’s verdict that natives cannot claim NCR pertaining to land gazette as forest reserve.

Six appellants – Andawan Bin Ansapi, Barani Bin Ambisi, Ansanam @ Azman Bin Yapau, Johndy Bin Kawar, Stanley Bin Boyor and Sarim Bin Arus are seeking to overturn their conviction for trespassing into the Kuala Tomani Forest Reserve and for cultivation hill paddy there.

They were charged under Section 20 (1) (c) (i) of the Forestry Enactment for encroachment and under Section 20 (1) (b) (iii) of the Forestry Enactment for cultivation in the forest reserve.

Sabah has recorded the highest number of complaints on land issues in Malaysia, at 977 cases, followed by Peninsular Malaysia (654) and Sarawak (251).

The main land issues raised by aggrieved villagers were the plight of displaced local people after being found to have occupied forest reserves, the conflict of interest over construction of dams, and commercial plantations firms taking over their native ancestral or customary lands.

On the morning of Feb 17, 2011 at the Kota Kinabalu Court House, a group of 50 natives from Kampung Imahit, Kemabong, Tenom some 450 km south from Kota Kinabalu arrived early to attend an appeal hearing before High Court Judge Datuk David Wong in a bid to recover their freedom to their Native Customary Land with an area of 3,843.6 hectares planted with crops.

Some were dressed in their native costumes, singing songs and dancing to bamboo musical instruments.

Under Section 15 of the Sabah Land Ordinance, “Native Customary Rights” shall be held to be:

(a)    Land possessed by customary tenure;

(b)   Land planted with fruit trees, when the number of fruit trees amounts to 50 and upwards to each hectare;

(c)    Isolated fruit trees, and sago, rotan, or other plants of economic value, that the claimant can prove to the satisfaction of the Collector of Land Revenue were planted or upkept and regularly enjoyed by him or her as personal property;

(d)   Grazing land that the claimant agrees to keep stocked with a sufficient number of cattle or horses to keep down the undergrowth;

(e)    Land that has been cultivated or built on within three years;

(f)    Buriel grounds or shrines;

(g)   Usual rights of way for people or animal from rivers, roads, or houses to any or all of the above.

The convicted claimants claimed that the Forestry Department evicted them from their ancestral lands where more than 100 graves of their forebears in nine grave sites could be found as evidence.

The Forestry Department claimed that the land is now a forest reserve that was gazetted in 1984.

The department’s officers arrested six men and seven women who were found planting hill paddy at their ancestral lands on Oct 29, 2009.

The six men were further remanded for three days at the Tenom police station lockup under the Forestry Enactment 1968 for trespassing into a forest reserve and for cultivating crops in a forest reserve.

They pleaded innocence as they were never informed of the gazettement of the lands as a forest reserve nor were they consulted over the matter.

On November 12, 2010, they were found guilty as charged by the Magistrate of the Tenom Magistrate Court and were fined a total of RM6,000 or 90 days imprisonment in lieu of payment of the fine.

They paid the RM6,000 fine.

Dissatisfied with the verdict, they filed an appeal to the High Court at Kota Kinabalu.

The hearing was scheduled on February 17, 2011 was postponed to February 18, 2011 as the Deputy Public Prosecuter was unprepared to argue the case.

DPP Mohd Zaizri Bin Zainal Abidin appealed the case to be heard on Monday February 21, 2011 but the judge ruled that the case has to proceed on the afternoon of 18.02.2011 as the people have come a long way, spent a lot of money besides putting up with well-wishers and friends in Kota Kinabalu.

The judge reminded the DPP that the Chief Judge had expressed concern that the postponement of cases was causing a loss of RM50 per case in cost that had snowballed to millions of ringgit.

At the hearing on February 18, 2011 starting at 2:30 p.m., the DPP insisted that the six appellants be put in the dock as it was a criminal case despite the defense counsel Ram Singh’s to let them be outside.

The judge reserved judgment after the DPP failed to address his question whether the magistrate had closed her mind to the ruling that NCR cannot be extinguished by legislation as the appellants are natives.

NCR was established by the defense from the start of the case.

Justice Datuk David Wong said since the DPP insisted that it was a criminal case, the onus was on the prosecution to prove beyond reasonable doubt that the appellants were guilty.

Ram Singh is scheduled to appear in another private complaint case in Tenom on Tuesday Feb 22, 2011 where houses of some villagers were bulldozed by the Forestry Department officers.

According to the aggrieved group’s spokesman Barani Ambisi, 42, of Murut Tahol descent (013-8735935), their village Kg. Imahit exists even before Merdeka.

It is situated some 10 km from Kemabong town and about 55 km from Tenom town with about 500 villagers of Murut Tahol ancestry.

They wanted their conviction overturned and that they be allowed to freely cultivate lands since the time of their ancestors before Malaysia or Sabah came about.

The Federal Constitution of Malaysia provides that no one in Malaysia shall be deprived of their property without compensation.

Two motorcycles and agricultural tool like asok were seized with 1 kg of paddy seeds.

Democracy is not only about elections but also access to a fair and affordable adjudication of disputes.

In this case, the six aggrieved persons are represented by their lawyer free of charge or pro bono who also seeks to recover their RM6,000 fine paid.