Tuesday, March 19

Towards a solution to a festering problem?


IN 1952, a meeting of Iban chiefs was held in Sibu to discuss the Tusun Tunggu of 1936, revising the quantum of fines, fine-tuning some adats, but retaining the ‘adat pindah’ at the behest of the government officers, not at the request of the participants. The colonial adat was that Iban leaving one Penghulu area to another would lose rights to land. This made-in-Sibu custom was to suit the colonial government’s purpose of opening up the country for exploitation by investors of the forest products in the interior.

The government plan at the time was to encourage sedentary farming, thereby slowly banning the Iban agricultural method of farming (shifting cultivation) and thus restricting Iban from felling more forested areas for farming and leaving the forests for extraction of timber by people with money.

Did you know that the Tusun Tunggu of 1952 was applicable only to the Iban in the then Third Division, which included the whole of the Rajang Basin; later it was extended with modifications to the then Fourth Division and Fifth Division only. In other words, this Code of Fines for Ibans in the Third Division was not applicable to the Iban in the First Division and the Second Division.

Ten years later, in Simanggang, a conference of Iban leaders was held to talk about the Tusun Tunggu again – this time for all divisions – but did not endorse specifically the provision relating to ‘pindah’ and deprivation of rights of Iban landowners.

During the conference, no one brought up this subject, nor was it mentioned in the record of the proceedings of the Simanggang Conference.

I asked the late Tra Zehnder, who had attended the meeting at Simanggang, and she could not recall any specific decision on the ‘pindah’ or loss of land rights upon ‘pindah’.

The Iban in the First Division (scattered from Lundu to Simunjan) were not represented at the conference. Therefore, they were not fully consulted; so, whatever decision reached with respect to their custom relating to land rights would not be binding on them. This proviso or exception in the government-sponsored adat, by clear implication, is often ignored by legal practitioners in Malaysia.

In the first part of this article, there was the reference to how the Land Code was hastily introduced as a result of the Sepid Selir case.

The six methods by which Natives of Sarawak have acquired rights to land have been reduced to five. In 2000, sub-section (f) of Section 5(2) – ‘by any other lawful method’ – was proposed to be chopped off by some people with little knowledge of the Native adat on landownership/proprietorship. They did not care to read about what happened in 1925 (The Binatang Incident) for guidance in initiating new legislative changes to the Land Code in 2000.

The government’s dilemma

Confusion over interpretation of the nature and spirit of the Iban adat over an area of land called pemakai menoa and pulau galau led to a controversial judicial ruling (TR Sandah) 91 years later. Successive governments of Sarawak have been in a dilemma on how to protect the landowners and, at the same time, how to protect the interests of the investors in land development and timber extraction – a situation like eating and keeping the cake.

On the one hand, the government has to acknowledge that the Federal Court’s decision in TR Sandah case may be binding on a future case; on the other, its constituents – the Native landowners – would keep on losing cases and their rights over PMPG.

Sooner or later, any government entrusted with the fiduciary duty and is worth its salt has to settle a difficult problem such as this because a large portion of Sarawak’s population is adversely affected. If it wishes to be respected as the protector and trustee of Native rights, the restoration of customary land rights to their lawful owners is a sensible move to make the sooner the better. Any effort in this direction may not be popular with some invested interests, but to leave the problem unsolved will do more harm than good in the long term.

The Government of Sarawak has had a lot of difficulty in dealing with land matters. In 1965, Land Bills purported to give power to the Resident of each Division to alienate land had to be withdrawn in order to avoid their defeat in the Council Negri.

Twenty-one members of the Council were going to vote against the legislation. Some contemporary commentators believed that the Land Bill Crisis of 1965 was one of the factors contributing to the downfall of the Kalong Government. There were other reasons why Kalong had to be removed but the land issue was certainly a convenient scapegoat.

To be continued

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