‘Musa, A-G’s remarks could have serious implications’

A non-native lawyer has filed for a judicial review to protect the long-held rights of natives in Sabah.

KOTA KINABALU: Sabah Attorney-General Roderic Fernandez’s remarks that native customary rights (NCR) is limited has ignited a fuse in the state that is threatening to turn government policies on their head, with the general election around the corner.

After a host of Barisan Nasional (BN) leaders joined together in criticising Fernandez for his views on the matter, a non-native Sabah lawyer has taken the first step to protect the long-held rights of the natives in the state.

Marcel Jude Joseph filed an application to prevent the Chief Minister (Musa Aman) and the state government from refusing to recognise any NCR that came into existence after 1930 or NCR that could not be proved to have existed since 1930.

In his application for leave for a judicial review filed at High Court’s registry yesterday, Joseph, who has taken on controversial cases before, named the chief minister and the state government as first and second respondents.

He is also seeking an order to direct the respondents to give due recognition and cognisance to all or any NCR claimed by qualified applicants as in existence after 1930 and by qualified applicants who are unable to show occupation of the relevant lands prior to 1931 provided they satisfy Sections 13, 14, 15, and 16 of the Sabah Land Ordinance (SLO).

He has also asked the court to validate all or any NCR claimed by qualified applicants after 1930, and to allow all or any NCR claims by qualified applicants who are unable to show occupation of relevant lands prior to 1931.

The hearing of the ex-parte application would be heard before High Court judge David Wong Dak Wah on April 3.

Joseph in his statement contended that the press statements of the chief minister and state government recently would have serious implications, effects and repercussions as the statements are unconstitutional and in breach of Article 161A (5) taken from Additional Protection for States of Sabah and Sarawak and also in breach of Sections 13, 14, 5, and 16 of the Sabah Law Ordinance.

He said that the statements and the manner of dealing with the issue of NCR such as creating a win-win solution is showing disrespect for the laws of Malaysia and the supremacy of the Federal Constitution.

He said the statements of the respondents are intended to usurp the powers of the judiciary and the High Court of Sabah and Sarawak to decide on the issue of NCR.

SLO is a colonial legislation

In his affidavit-in-support, Marcel contended that the statements made by Fernandez on the NCR is entirely misconceived and flies in the face of historical fact.

Joseph said that the SLO passed in 1930 was a colonial legislation

“To understand this, we need to go back to 1881 which is the beginning of the modern day of Sabah although at that time it was known as the British Colony of North Borneo.

“In November of that year, a Royal Charter was granted by Queen Victoria of Great Britain which reads under item 9: ‘Administration of justice to the inhabitants. In the administration of justice by the company to the people of Borneo, or to any of the inhabitants thereof, careful regard shall always be had to the customs and laws of the class or tribe or nation to which the parties respectively belong, especially with respects to the holding, possession, transfer and disposition of lands and goods… and other rights of property and personal rights’.”

He pointed out that item 9 formed the genesis of Sections 13, 14, 15 and 16, dealing with NCR under the SLO which is an entirely British legislation passed in 1930 and pre-dating the creation of Malaysia in 1963.

He said that item 9 and the terms of the charter were never repealed and is one of the sources, if not the most important sources, of the constitution of Sabah or the colony of north Borneo as it was then known.

“In fact, prior to the Federal Constitution, the Royal Charter was in effect the ‘Constitution of Sabah,” he said.

He added that the statements by the chief minister and the state attorney-general would have serious implications as the state government and the relevant agencies, particularly those dealing with the administration of lands and forests, will no longer respect or give due cognizance to NCR.

He said the chief minister and state attorney-general’s statements would also encourage parties or person or corporates bodies to ignore or brazenly challenge the existence of NCR to the long-term detriment of the natives of Sabah and the beneficiaries of NCR.

“Although the views and opinions of the state attorney-general have no force of law, they are nevertheless, by reason of his high office, treated as binding or persuasive especially on the bodies and authorities of the state government.

“If (the statements are) not circumscribed or denounced by the court as being in error, they will be taken as a licence to deprive or destroy the rights of natives and the beneficiaries of NCR,” Marcel said.