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Saturday, June 15, 2013

APPEALS COURT TO GIVE IMAHIT VERDICT



THE SIX respondents clad in their traditional Murut garb are joined by fellow villagers to pose with Singh outside the KK High Court.

KOTA KINABALU : Heads turned and the attention of court-house officials and staff were certainly obvious, when six respondents walked into the Kota Kinabalu court complex, clad in the traditional Murut garb.

Accompanied by some 100 Kampung Mahit villagers, who came to give their support for their fellow folk, they even had a headgear for their counsel, Ram Singh, something usually reserved for the warrior among the tribe.
And Singh was in fiery mood as he appeared before the Court of Appeal in the case involving the six from Kampung Mahit in Tenom, who were charged with carrying out cultivation in the Kuala Tomani forest reserve without permission five years ago.

The Murut Tagol defendants are Andawan Ansapi, 48, Barani Ambisi, 41, Ansanam@ Azman Yapau, 53, Johndy Kawar, 26, Stanley Boyor, 34, and Sarim Arus, 54.

Justice Tan Sri Md Raus Sharif, who chaired the three-man panel, sat together with Justices Datuk Clement Allan Skinner and Dato’ Azahar Mohamed, said they will deliver their verdict on a date yet to be fixed.

Raus said a written judgment on this case is necessary because of its importance.

“The judgment will be delivered at a date that will be fixed,” he said, adding that the submission by the defence was quite extensive especially on matters pertaining to Natives of Sabah.

Magistrate fines six; Judge sets aside conviction

On Nov 12, 2009, magistrate Intan Nurul Farena fined the six respondents RM500 each, in default, 90 days’ jail after finding them guilty of cultivating in the forest reserve without permission.

Then on March 4, 2011, the six respondents prevailed in their appeal against the subordinate court’s decision at the High Court here and their conviction was set aside by Justice Datuk David Wong Dak Wah, who held among others, that Native Customary Rights (NCR) could be claimed in a forest reserve on the grounds that customary law is a practice by the habit of the people and not the dictate of written law, and legislation has neither abolished nor extinguished NCR.

Wong further held that if the respondents possess NCR, they have authority to be on the land to cultivate and do other things which their ‘adat’ (custom) allows.

Counsel Fulton Mark Sitiwin assisted Singh while State Attorney General Datuk Roderick Fernandez held a watching brief for the State Attorney General of Chambers and Government of Sabah.

In court today, in his rebuttal, Singh who is appearing pro bono for the six urged the court to look into Section 12 (6) of the Forest Enactment as it has to consider the mandatory requirement of Section 7, 8 and 9 of the same Enactment.

Counsel pointed out that the ancestors of these respondents never received notification of any gazette from the District Office or the Collector of the district as to the Government’s intention to gazette the land as the Kuala Tomani Forest Reserve.

Forest Enactment has no jurisdiction over Native Rights

“No legislation can abolish NCR and it has been decided by courts in the Commonwealth and more so in Malaysia,” Ram pointed out.

He further submitted that the trial in the Magistrate’s Court in Tenom went by way of criminal prosecution from the first prosecution’s witness till the last defence witness.

The defence had notified the prosecution, as well as the court, about the rights under NCR.

“The prosecution should have stayed the proceedings and sought the advice of the State Attorney General Chambers on how the issue of NCR could be deliberated,” he further stated.

Singh argued that in simple terms, the Forest Enactment and the issues of the rights of the NCR can never be balanced as the Forest Enactment has no jurisdiction over Native Rights.

“In fact it provides savings of Natives Rights under Rule 9 of the Forest Rules 1969,” he explained.
He added that under the Enactment, the rights of the natives are so overwhelming against the Forest Director.

Earlier, deputy public prosecutor Manoj Kurup submitted that the Kuala Tomani area was gazetted as Forest Reserve under Section 12 (6) of the Forest Enactment that extinguishes Natives Rights and privileges.

He submitted that the accused had no rights over the land and under Section 23 of the Forest Enactment, whereby the learned judge had misinterpreted in law the word ‘unless expressly authorized by or under the provision of this Enactment’.

He explained that the interpretation of law meant that they needed approval and authority of the Director of Forestry to enter or to cultivate any land within the forest reserve.

“This are forest reserve and not State land, any matter should have on Native Customary Rights (NCR) should be dealt or disposed of by way of collector or district land office,” Manoj submitted, adding that there were cases where legislation has abolished NCR.

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