When the blood in your veins returns to the sea, and the earth in your bones returns to the ground, perhaps then you will remember that this land does not belong to you, it is you who belong to this land.
Apache, Native American saying
For centuries, it has been established that upon asserting sovereignty the British Crown accepted the existing property and customary rights of the territory’s inhabitants. It was adherence to Judeo-Christian principles that sustained this governmental conduct when matters of indigenous peoples’ land rights came into focus.
The Holy Bible makes reference to this in Proverbs 22:28 and Proverbs 23:10 about the prohibition in removing ancestral boundary stones. Leviticus 25:23 is equally strong in its admonishment that all land belongs to God, and that we are merely sojourners tasked to be custodians, guardians and stewards of the land.
Sarawakians have manifested their inalienable rights to freedom of religion when August 1, 2018 saw the emergence, acceptance and establishment of Native Territorial Domain in perpetuity.
After the conquest of Ireland, it was held in The Case of Tanistry (1608), Davis 28, 80 E.R. 516, that the Crown did not take actual possession of the land by reason of conquest and that pre-existing property rights continued. This could be one of the surviving reasons customary land rights of Sarawak have been protected, preserved and propagated.
Lord Sumner wrote in In re Southern Rhodesia, [1919] A.C. 211, at p. 233 that “it is to be presumed, in the absence of express confiscation or of subsequent expropriator legislation, that the conqueror has respected [pre-existing aboriginal rights] and forborne to diminish or modify them”.
Lord Denning affirmed the same rule in Oyekan v. Adele, [1957] 2 All E.R. 785, at p. 788:
“In inquiring . . . what rights are recognised, there is one guiding principle. It is this: The courts will assume that the British Crown intends that the rights of property of the inhabitants are to be fully respected. Whilst, therefore, the British Crown, as Sovereign, can make laws enabling it compulsorily to acquire land for public purposes, it will see that proper compensation is awarded to every one of the inhabitants who has by native law an interest in it; and the courts will declare the inhabitants entitled to compensation according to their interests, even though those interests are of a kind unknown to English law.”
Customary native land rights enjoy usucapion — Latin for ownership due to lengthened possession.
Way before written laws and constitutions were written and codified, usucapion reigned, and still reigns, supreme. So supreme that the English common law exercised the principle usucapio instituta est ut aliquis litium finis esset — usucapion was instituted that there might be an end of lawsuits challenging ownership to customary native land.
But which government listens and obeys the law when greed comes into play?
All these unnecessary discussions, debates, controversies, judicial opinions and pronouncements on Sarawak’s oil and gas revenues are tongue in cheek at best when aired by Malaya which wants to hide its head in the sand when usucapion is here to stay put permanently.
Today, gratefully, it is established as Native Territorial Domain in perpetuity. If English common law is the staple jurisprudential diet in Malaysia, our courts must obey them unreservedly and not selectively.
Malaysian superior courts have recognised the common law rights of orang asli to lands that they have historically and traditionally occupied without the need for a formal executive order “recognising” these rights — Kerajaan Negri Johor v Adong Bin Kuwau [1998] 2 MLJ 158; and Kerajaan Negeri Selangor v Sagong Bin Tasi [2005] 6 MLJ 289].
The apex court did not use the word usucapion but the fact that a formal executive order is unnecessary speaks volumes. Most assuredly, these two seminal cases will never encounter overruling if the role of justice and the rule of law work together.
I am sure the silent majority of pre-MA63 Sarawak knew precisely who they were dealing with as the ultimate truth today begins to seep into the consciousness of Sarawakians committed and dedicated to protecting their land and soil from covert and furtive agendas.
The final protection can only be permanent when and if Sarawak is able to police its own assets without Malayan interference and intrusion. Sarawak must jealously protect its territorial integrity despite authoritarian, distasteful and disdainful constitutional amendments.
Instead of ironing out the wrinkles in the fabric of that document, those in power elected to alter the fabric itself making it look like a document aimed at entrenching unbridled government power as if the governed matter not.
Where the Constitution is silent over land rights, some silly statute stands up to create a deafening roar. Article 162(6) of the Federal Constitution is the best available tonic for interpreting customary land rights if and when courageous and independent judges come to terms with their status and standing as guardians and protectors of the supreme law of the land.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune
