An independent judiciary is the crown jewel of our democracy. It is too vital to be used as a means of placating political party’s base.

Nan Aron, American lawyer and founder of the Alliance for Justice
Part II  

I believe the founders of America who entrenched the 8th Amendment to the US Constitution concerning cruel and unusual punishment shook, stuttered, shivered and shuddered on learning how Sisamnes, a corrupt judge under  Cambyses II of Persia, was punished for taking a bribe and delivering an unjust verdict.

As a result, the king had him arrested and flayed alive. His skin was then used to cover the seat in which his son would sit in judgment. Adat, Persian style.

Since 1988, the Malaysian judiciary invited a deep and lasting self-inflicted wound impelled by a sadistic desire to pursue non-constitutional extravagance while pandering and surrendering to political forces.

Despite allegations, proof, and evidence of its corrupt base, the judiciary’s misdeeds can be avoided if citizens and denizens (read: Natives) are willing to take appropriate measures.

First, why do voters select and elect legislators at the state and federal level, and thereafter give the power to one individual, usually the prime minister, to select and appoint judges?

Why not exercise that power to select and elect judges by popular vote? After all, the voters should be able to evaluate the credentials of a select few lawyers to determine their worth and value to a truly non-political, unbiased and independent judiciary.

Second, the judiciary can only become an equal partner with the executive and the legislature if it is truly independent and bereft of interference from the other two organs of state.

In this context, Sarawak’s Native Court system needs thorough examination under existing constitutional imperatives and related legislation.

Under the Sarawak Constitution, the executive and the legislature are expressly mentioned and cited at Articles 5, 6 and 7. There is no express mention of the Sarawak judiciary because this discipline, like immigration, has always been under the control of Sarawak given the guarantees of the original Malaysia Act.

Sarawak’s civil and criminal matters requiring judicial oversight must be handled through the Native court system if Sarawak’s standing as an equal partner with Malaya means anything under the rule of law.

The recent Petronas suit and that of the legislator with dual citizenship should have been tried under Sarawak’s Native court system to arrive at a Sarawak remedy, not a federal one.

Sarawak, in the context of Malaysia, is unique per se according to the findings of the Inter-Governmental Committee Report of 1962, with judicial power reposed within the constitutional confines of the Malaysia Act enshrined in the Constitution of Sarawak.

Therefore, why does it become necessary for civil and criminal cases to get entangled in the insidious non-adat Malaysian judicature web of the Magistrates’ Court, the Sessions Court, the High Court, the Court of Appeal and ultimately the Federal Court?

Surely Sarawak’s Native court system can be well equipped to handle cases involving Sarawak affairs with adequate and proper training of jurists and lawyers trained in Native law, custom and usage. This is pure constitutional obeisance.

The Federal Constitution has blazed a trail to honour, recognise, acknowledge, validate, regard and revere Sarawak’s Native court system at Article 76(2), Article 145(3), Article 150(6A) and the Ninth Schedule List II.

Sarawak’s “independence” is blindingly visible if Sarawak is ready and willing to entrench its Native court system as a permanent fixture in its Constitution under Article 27 — the supreme law of Sarawak.

The Federal Constitution and the Constitution of Sarawak are beckoning to be held accountable and responsible under the rule of law. Carpe Diem (seize the day) Sarawak. 

Sarawakians deserve to witness the results of the findings of cases like the legal standing of MA63, the Petronas suit, and the MPKKP matter in a Native court setting with adat as the threshold determinant.

The rule of law and the role of justice will eventually meet to benefit Sarawakians. Look at it another way: The Constitution of Sarawak does not discourage or deter the Native court system either though express of implied language.

The Dewan Negeri should spare no effort in passing legislation making Native courts a judicature mainstay like its trailblazing legislation that paved a permanent pivotal path to Native Territorial Domain in perpetuity.

That was the final nail in the coffin of outside interference into Sarawak’s customary Native land rights given the intent, content, extent, latitude, scope, scale, impact, and effect of the doctrine of usucapion (Latin: ownership due to lengthened occupancy and possession).

Canadian, American, Australian and New Zealand cases bear ample lasting testimony to the application of usucapion in securing, entrenching and establishing customary Native land rights.

Sarawak’s legislature scored a first with the entrenchment of Native Territorial Doman status. More to come from a vigilant, progressive, pre-emptive and proactive Sarawak Dewan Negeri.

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