State fails to overturn ruling on legality of NCR transfer through ‘Surat Perjanjian Menyerah Tanah Temuda’
Baru (second right) speaking to reporters while (from left) ex-Penghulu Mahli Sadam, See Chee How (who represented Rambli in Kuching High Court) and Mohamad Rambli look on.
KUCHING: The Court of Appeal (COA) in Putrajaya has delivered a landmark decision by affirming the decision of the Kuching High Court that Mohamad Rambli Kawi had acquired native customary rights over 51 parcels of land totaling 547.49 acres at Loba Rambungan near here through Letters of Surrendering Native Customary Land from the owners of the NCR land.
A three-judge panel comprising Datuk Abdul Wahab Patail, Datuk Balia Yusof Wahi and Datuk Tengku Maimum Tuan Mat, by a majority decision on Monday dismissed the appeal
by the Superintendent of Lands and Surveys, Kuching Division and the state government of Sarawak against the Kuching High Court ruling with Abdul Wahab , who chaired the panel, dissenting.
The issues brought before the COA were whether the respondent Mohamad had proved that the former landowners who surrendered their land via ‘Surat Perjanjian Menyerah Tanah Temuda’ (Letters of Surrender of NCR) to him had NCR on the 51 parcels of land and whether he had acquired their NCR through their letters .
The COA, in its judgement affirmed that the ‘Surat Perjanjian Menyerah Tanah Temuda (NCR)’ is not a form of Sale and Purchase Agreement but a form of Malay custom of ‘serah’, which is practised by the Malays of Sarawak.
It also affirmed that according to the Malay adat or customs, the pioneers or the first persons who occupy an area for farming or planting of crops or fruit trees or generally for ‘cari makan’ (foraging the land for food or generally using the land for his livelihood) would have a claim or right over the said land.
Even after his death, any of the children may inherit the right over the said parcel of land, which is commonly referred to as native customary land (NCL).
This is because that land was acquired by virtue of Malay native customs, that such rights created and/or acquired over the NCL may be ‘serah’ (surrendered) to another Malay person .
The COA also held that in the circumstances, the Malay NCR land, which includes swampy areas and the riverbanks where they had planted upon and foraged for food are not just sources of their livelihood but also constitutes life itself as their NCR land is also fundamental to the Malays’ social, cultural and spiritual aspects as native people of Sarawak.
The COA also held that as there was no adequate compensation given to the plaintiff the extinguishments of the said NCR was unlawful.
Baru Bian, who represented the respondent, said, “The COA’s affirmation of the Kuching High Court on the concept of ‘serah and ‘cari makan’ is a victory for the Malay community in Sarawak.”
“I don’t know whether they will appeal from this. Again, I think this is prelude to what is coming up in the State Legislative Assembly. We heard that the state government is intending to amend the Land Code and again, we are asking for the Land Code to be amended so that the provisions are consistent to the decision of the Court.”
Baru, who is state PKR chairman, said the party state leaders had requested to have a follow up meeting with Chief Minister Tan Sri Datuk Amar Adenan Satem in the third week of this month and he would share the latest COA decision with the chief minister.
“It is up to them to take it from there. My hope and suggestion to the chief minister is perhaps get advice from a third party and maybe the best is Chief Judge of Sabah and Sarawak Tan Sri Panglima Richard Malanjum to advise the government in his private capacity. I’m sure he is willing to assist if they try to get him.”
With the COA decision, Baru said there are about 20 cases where the ‘serah’ concept applies pending in the court.