The blurred picture

The promise given was a necessity of the past: the word broken is a necessity of the present.
– Niccolò Machiavelli, Italian diplomat, politician, historian and poet of the Renaissance period

Have you wondered why native law, custom and usage are not deemed to be the supreme law? After all it is the supreme law of Malaysia. Why are they sidelined as if immaterial and irrelevant? It appears that the answer jumps at you upon reading Rule 11(3) of The Native Court Rules of 1993 which mandates and enunciates the power and authority of a decision, judgment and order of a Native Court for the recovery of land or for the delivery of possession of land.

Land obviously includes soil. Soil contains all the rich mineral deposits beneath and forestry resources above. This is a veritable anathema and annoyance to the federal government because native land issues are siren-like warning overtones giving shape, form and substance over the deliberately disregarded issue of revenues due and payable to Sarawak from its oil and gas deposits that are part and parcel of Sarawak’s land.

Rule 11(3) casts a giant embarrassing shadow on this aggravating situation since September 1963, and after Article 1(2) of the Federal Constitution transformed Sarawak, and Sabah as “states” — another constitutional suicide.

Sarawak’s judiciary is in the hands of the federal government when you factor in the Subordinate Courts, High Courts of Malaya and Borneo, the Court of Appeal and the Federal Court.

They are curiously called “offices of profit” in Article 160 of the Federal Constitution which probably impelled an appellate court judge who recently turned whistleblower to expose the indecency of malversation in the Malaysian judiciary which is yet to be resolved.

This is where the “democratic Westminster-model of parliamentary government” as practised in Malaysia becomes absurd and awkward with total disregard of and for the Native Court system in Sarawak.

Mind you, the Federal Constitution is not deafeningly silent on this issue. Sarawak’s Native Court Ordinance 1993 appears to be a practical expression of the will of the People of Sarawak to be governed by custom, Native law and usage (adat) in compliance with the Federal Constitution at Article 160 where it explains that native law, custom and usage are part and parcel of the “law” of Malaysia — the supreme law of the land.

The promise given before and after 1963 was a necessity of the past. A necessity born out of a sense of freedom and independence from colonialism with prospects and promises of and for a better future.

The promise broken subsequently is a necessity by, of, and for Malaysia. The bona fide promise was premised upon Clause 8 of the Nine Cardinal Principles of the Rajah:

That the goal of self-government shall always be kept in mind, that the people of Sarawak shall be entrusted in due course with the governance of themselves, and that continuous efforts shall be made to hasten the reaching of this goal by educating them in the obligations, the responsibilities, and the privileges of citizenship.

It is a crying shame when verbicide is unabashedly unleashed upon laws and written constitutions that become idle and meaningless words when framed as promises, assurances and guarantees extracting strength, power and authority from foundational documents.

The “goal of self-government” as declared has been subtly removed from economic and political memory with vast advances in political experiments that make Sarawak an unwilling accomplice and an unsatisfied ally.

“Governance of themselves…” must surely mean substantially more than what the federal government contemplates from a constitutional vantage point at Article 153.

These wanton actions and irresponsible efforts encourage political and economic terrorism which only a court of equity, not a court of law, will be able to adjudicate, determine and enforce with police power for a free People in a self-governing system.

The Native Court system in Sarawak echoes with promises of being a court of equity in which one of the 20 maxims of equity proclaims that equity will not allow a statute to be used as a tool of fraud.

Imagine the number of laws that have been craftily designed to the detriment and disadvantage of the people of Sarawak. And yet, the supreme law of Malaysia does not seem to check these maverick and cavalier laws that stifle and choke constitutional breath.

What then is the punishment for disobeying an unjust law that is an affront to the supreme law of the land being that it is the consequence, not the source, of fundamental rights?

We should not be surprised if the feds respond like the parenticide defendant when asked if he had anything to say before the judge passed sentence: “I think any punishment will be too harsh for an orphan like me.”

The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.