Divers Paths to Justice - English - Forest Peoples Programme

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Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiaaddition to the Constitution, South African courts were to take judicialnotice of the content of indigenous law established through evidence and itwas the duty of the judiciary to interpret customs and resolve conflictsbetween competing versions of traditional practices. 64 [T]he determinationof the real character and content of indigenous title to land was thus to“involve the study of the history of a particular community and itsusages”. 65To the extent that the CCSA holds that indigenous laws must be referencedthrough the Constitution and not common law, it may have persuasiveauthority in Malaysia. However, since customs and usages may have theforce of law under 160(2), it is argued that customary law is not subject tolegislation nor to common law, but stands to be interpreted on its own termsunder the Constitution.Recent judicial application and contextualising of native laws andcustomsIn two recent decisions, David Wong J had a fresh look at native customarypractices relating to land. In Agi Bungkong & Ors v Ladang Sawit BintuluSdn Bhd 66 , two provisional leases were granted to the defendants. Theplaintiffs claimed that their customary land was within the defendants’parcel. They claimed NCR on the lands through the Iban custom of pemakaimenoa to which the defendants objected on grounds that this custom wasnot recognised in law.Two experts on the customs testified in court, explaining the nature of thepemakai menoa and the rituals involved in creating it. Bawin spoke of therituals of panggul menoa in commencing a new settlement where thecommunity can establish its right to fell the trees and create their pemakaimenoa. Empeni Lang, a former Registrar of the Native Court, revealedanother facet of the pemakai menoa: “The pemakai menoa is inclusive of64 ibid.:*4465 ibid.:*4966 [2010] 4 MLJ 20461
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiathe forest and are also sources of collection of jungle produce such as ferns,bamboo shoots and other edible produce. The pemakai menoa defines thejurisdiction of each Tuai Rumah [headman] and it is this jurisdiction of TuaiRumah that is defined or implied in s 7 of the Native Court Ordinance 1992.Without the concept of pemakai menoa, there would be no clear definitionand extent of the local jurisdiction of the Tuai Rumah as the presidingofficer of the headman in the native court system.”Empeni Lang also spoke of temuda as an area of primary forest that hasbeen felled by an original or pioneer worker or by ancestors, the right of useof which may be transferred to subsequent generations. He explained that itis common practice for the lands to be left idle in accordance with a fallowsystem of use to maximise land fertility and to enhance use. The length ofthe idle period within the fallow system is contingent on the nature of thefertility of the land.Wong J followed the Court of Appeal decision in Nor Nyawai and did nothesitate in holding that the pemakai menoa is an Iban custom and practice.In that case, the view of the Court of Appeal differs from the High Courtonly in respect of the factual evaluation in which they found that theplaintiffs there had failed to prove the existence of pemakai menoa. Despitethe fact that it is not listed in the codified Iban Adat 1993, the court referredto earlier authorities and held that “native title requires an examination ofthe customs and practices of each individual community and this involves afactual inquiry and not whether the customs appear in the statute book.” 67Furthermore, Justice Wong said that the view was “consistent with theintention of the Federal Constitution which defines law to include “customand usage having the force of law in the Federation or any part thereof.”In another significant case, Mohd Rambli bin Kawi v Superintendent ofLands, Kuching 68 , Wong J considered whether Malays had customary rightsto their kampung lands and the lands on which they foraged around theirkampung, including the swampland on which they depended for theirlivelihood. Consequently, the question arose as to whether by Malay67 Agi Bungkong [2010] 4 MLJ 204, 21568 [2010] 8 MLJ 44162
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Divers Paths to Justice - English - Forest Peoples Programme

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