BY NAVIN-CHANDRA NAIDU
We do not inherit the land from our ancestors, we borrow it from our children.
– Native American proverb
A close non-lawyerly examination and analysis of the Malaysian Federal Constitution (FC) will indicate that the sovereignty and exclusivity of Malaysian Native courts are found in its Article 145(3), and obliquely, in Article 8(5)(c).
Article 145(3) plainly says that the Attorney General has no legal duty or constitutional right to discontinue proceedings in sharia courts, military courts and native courts, although the political rights to discontinue proceedings are, probably, differently contemplated and conjured in our occidental-oriental, or Westminster – Eastminster concept of parliamentary democracy.
The voice of the people was made supreme by the English leaders after executing their king, Charles I, in 1648, and then instilling a constitutional monarch subject to parliamentary control. And they exported it to their colonies, Malaya included, of course.
At the time of writing, the dynamics of Malaysian democracy is underwritten by a sustainable insurance policy with the concept of government of the selected, by the selected, for the selected. It seems Malaysian elections no longer have any constitutional substance or legal traction whatsoever when a constitutional monarch selects his prime minister outside Parliament.
We must note that the FC was conceptualised and conceived by non-Malayans who relied on suspect sources of information that impelled them to do what they did. Now, we can be sure that Article 145(3) FC was purely a western concept wrought from five hundred years of colonisation with obvious religious reverence, regard and respect for the original landowners of each and every political and geographical “colony” that was “discovered,” founded and established.
Article 145(3) FC readily accepts and recognises concepts of tribal sovereignty, suzerainty and supremacy of Indigenous Peoples that English, Portuguese, Spanish, Dutch and French settler-governments instituted in their colonies in Asia, Africa, Australasia and the New World (The Americas).
Article 8(5)(c) FC is literally a carte blanche blank cheque assuring the Aborigines of Malaya that nothing in Section 8 (Equality) shall invalidate any provision for the protection, advancement and well-being of the Aborigines of the Malay Peninsula, including the reservation of land which is further consolidated in the Aboriginal Peoples Act of Malaya 1954.
That word “nothing” is a strikingly robust assurance that the Malayan Aborigines are entitled, for example, to their very own security forces, a police force, incarceration facilities, a Native banking system, issuance of Native banknotes provided they are accepted as a medium of exchange like crypto-currencies.
Both Article 145(3) and Article 8(5)(c) ring true as a universal apology by the Europeans who entered distant private Native communities as explorers, discoverers, conquerors, occupiers and possessors of land, but certainly not as owners since the law of England and Wales knows of no law of land ownership but only a law of possession well covered in Modern Law of Real Property, by G. Cheshire & E. Burn, p. 26, 15th edition, London, Butterworths, 1994.
Oliver Wendell Holmes, Jr. of the United States Supreme Court said “possession is a conception which is only less important than contract for throughout the history of English land law the operative concept has been possession rather than ownership,” in his The Common Law (ed. M. Howe, Boston, Little Brown & Co.,1963, p. 163).
Harman J in Stokes v. Costain Property Investments [1983] 1 WLR 907, 910, declared this to be the judicial, legal, economic and political philosophy of the law of property in the United Kingdom.
Malaysian judges are yet to be emboldened by these imported concepts which have otherwise entwined themselves into Malaysian real property law. The reader must become instantly aware of the infamous Malaysian case adorning our law journals as the Adorna Properties case of 2001.
The acceptance, recognition and validation of Indigenous Peoples’ rights to their land and assets goes back to the 1537 papal edict by Pope Paul III, Sublimus Deus, cautioning and ordering the permanent visitors to the New World that they are not to dispossess the Natives of their lands and other assets.
The thirst and hunger for gold, silver, other precious commodities and free slave labour overruled the Pope’s wishes. Then came the 1763 Royal Proclamation by King George III which said the same thing but from a secular point of view.
Native rights to their lands and affairs were to be held sacrosanct and accorded the sovereign status under Christian belief systems proclaimed by the King. Nobody listened.
Ancient India, China, Africa and the Americas enjoyed a relatively undisturbed system of law and jurisprudence that found expression in their Native courts not very much unlike Sarawak’s Adat Iban.
The sovereign rights of the Indigenous Peoples of Sarawak (Article 161A(7)) are clearly stated in the doctrine cujus est solum, ejus est usque ad coelum (Latin) – he who is proprietor of the land is proprietor also of everything on it. All buildings, all natural fruits, and everything above as well as below the surface, belong to the owner of the land.
At this point, it is important to remember that there is no law of ownership of land in England, only a law of possession. It is English law that has come to stay with us permanently like we Natives had no known laws.
Someone forgot the Adat Iban as a living legal document. But the United Nations Declaration on the Rights of Indigenous Peoples, September 13, 2007 bearing Document Number A/RES/61/295, recognised and validated its tenets as it did with the rights of Maoris in Aotearoa New Zealand, the Indigenous Peoples of North and South America, the Original Peoples of Australia, Africa, and all other Indigenous Peoples in every part of the globe.
When matters of Indigenous Peoples’ rights are discussed, it is universally accepted that everything from fresh air above Native land and soil, everything miles beneath its land and soil, and everything above Native land and soil is purely and distinctly Native despite the arrival of a colony that escalated into a territory, and finally became a “State.”
Sarawak’s present Native court system was defined and refined under the 1992 Native Courts Ordinance that, curiously, does not enjoy judicial independence in the true and strict sense of the word as it is under the purview of the executive branch of government.
Without judicial independence, Native courts lack mooring especially when tethered to a political branch of government when decisions and judgments can be influenced by non-judicial officers looking askance to the executive branch of government.
Sarawak’s Native courts are the living expression of the Sarawak judiciary. The Constitution of Sarawak makes no mention, expressly or impliedly, of a territorial judiciary which is why Article 145(3) FC becomes a useful aid to determine the unique and refreshingly unusual state of affairs of the ancient Native court system that predates European contact.
Therefore, an independent Native court system is best suited to discuss, deliberate, debate and deliver the opinions, decisions and judgments based under native law and custom as is validated, accepted and recognised under Article 160 FC, and Article 76(2) FC where native law and custom are included as “Law” for the purposes of constitutional confirmation.
Malaysia’s judicial independence was shattered during the Salleh Abas putsch in 1988 that removed “judicial power” from Article 121 FC and instead labeled it “Judicial power of the Federation.”
The independence of the judiciary was permanently jettisoned by the ever-encroaching Machiavellian machinations of the Executive branch of government.
The Bar and Bench went into shock, locally, regionally, nationally and internationally. Some courageous judges have appeared on the scene beginning with the overruling of the Adorna Properties case in 2010 when a judge sitting with two of his brethren at the Federal Court on December 13, 2000, decided that a forger could obtain immediate indefeasible title and interest under section 340 of the National Land Code.
Where else could a certified forger have his rights adjudicated if not at our “independent” apex court. There was no known antidote for judicial overdose at that point in time during the dark and gloomy days of the Malaysian judiciary.
Sarawak’s independent Native court system has every opportunity to learn from the past about how judicial shenanigans can be overcome with unbiased, impartial and fair decisions unfettered by politics and government overreach.
Native American court decisions are aplenty which shed a great amount of light on Native rights, politics and government; between ancient communal property rights and European concepts of private land ownership.
In the United States, Native courts, usually called Tribal courts, enjoy limited sovereignty and autonomy because some unfair treaties in the past made Native Americans “wards” and “dependents” of the federal government.
Treaties were unjustly and disproportionately interpreted in the United States Supreme Court to render them dependent on the good graces of a civilised government. Very few judges agreed with the majority view and held otherwise. Their dissenting opinions are an invaluable read to enjoy, appreciate and understand how they eviscerated the issue of ancient communal rights with the property concepts of an encroaching settler government.
All the while, I realised that the most significant failure on the part of the Native Americans’ was their lack of enthusiasm to police themselves with self-styled Native police power.
The question of funding and finances is moot because their native land titles are worth quadrillions of dollars in the financial and banking markets if and when they are efficiently traded.
Sarawak’s Natives own their land. That is the basis upon which our argument must begin before politics and government intrude with recent legislation – as recent as 1841 when the Territory was ceded to the Brookes in exchange of military favours.
All well and good. But international law frowns upon the erosion of land ownership rights. This is one powerfully significant area that Sarawak’s Native court system must come to grips with armed with the knowledge of the beginning of this bizarre state of affairs when communal property rights got displaced and replaced with European concepts of land possession and occupation.
In August 2019, the Sarawak Land Code was blessed with the promulgation of an amendment which conferred Native Territorial Domain In Perpetuity status to land in Sarawak following the strange ruling by the Malaysian Federal Court which declared the Native Customary Rights to land does not defeat the indefeasibility of title to the land.
What the western concept will not understand is that land handed down by an ancestor is not available for sale. Curiously, Sarawak’s Native Court did not hear this case which instead went to the High Court first.
The determination and decision over native land rights must enjoy the jurisdiction of native law and custom if Article 76(2) FC means anything as another manifestation of the supreme law of the land.
If the Tuai Nyutan case could have been adjudicated in the Sarawak Native Court its judges could have been assisted in their decision-making tasks by suitably qualified lawyers and legal scholars as to the validity of Native Customary Rights to land based on fair and just eastern and western concepts of land possession versus land ownership.
Adat Iban could have played an interesting role as a master guide to decision-making, but politics stole the show, as usual.
Judge (Dr.) Navin-Chandra Naidu, LLD, USA, is the Chief Judge of the SecamtektekTribe of Indian Country, North America
