He knows nothing and he thinks he knows everything. That points clearly to a political career.
– George Bernard Shaw, Irish playwright, critic, polemicist and political activist
The distorted picture of the legal issues relevant and material to the still unresolved MA63 legerdemain was precariously wrought by career politicians with ulterior motives doing the popular thing instead of the right thing.
Ubi jus ubi remedium — for every injustice there is a remedy. Rest assured, justice is waiting to be served in the proper tribunal.
Recently, ‘The Spirit of MA63’ seminar (not ‘The Substance of MA63’) was hosted in Kuching for obvious reasons attended by judges, lawyers, activists, politicians and others. No earth-shattering revelations were mentioned except a politicised picture by the keynote speaker who cowardly took safe haven in the abstract.
If you cannot convince them, confuse them,” observed Harry Truman, 33rd US President. Was this the game plan unleashed on an unsuspecting and trusting people of Sarawak, and Sabah before, during and after the conception of Malaysia?
Permit me a culinary metaphor to illustrate: The diners want fish curry. The kitchen staff and chefs cook up snake, and feign fish curry. Some diners complain it doesn’t taste like fish, others say it does, and yet others are not sure.
This is precisely what happened in the real tumble of tricky and treacherous politics predicated by the IGCR 1962, the Cobbold Commission and the resultant MA63. The final picture got distorted but dished out as the genuine.
The rest is geography and economics, and pure treason.
Assuredly, there are remedies available for Sarawak to cure this mischief. Most lawyers and people I have spoken to agree with themselves that a lawsuit must be filed in the Sessions Court or High Court.
One even suggested invoking Article 4(4) and Article 128(2), Federal Constitution, to blaze a trail straight to the Federal Court which then becomes a consultative tribunal to determine if a law passed by Parliament is constitutional. But here is the rub.
The feds want you to go there because snake curry would be dished out while swearing the goodness of fish curry. The Dorian Gray picture that emerges is nothing short of moral leprosy.
December 2017 witnessed the Federal Court spewing out a wispy judgment like the brush strokes of a Chagall painting in Tuai Rumah Nyutan which expediently triggered the August 1, 2019 amendment Bill to the Land Code (Amendment) Ordinance 2018 creating a definitive legal principle — Native Territorial Domain (NTD) — for Sarawak’s landowners to be granted native communal titles in perpetuity with the force of law.
Surely that law is adat because land and soil, and everything above and below it, comes under the jurisdiction of adat.
This is an ancient aboriginal land rights concept — cujus est solum, ejus est usque ad coelum — that found utterance and gained traction in leading international indigenous land rights’ cases like Mabo v. Queensland (No.2) (Australia) and Delgamuukw v. British Columbia (1997) (Canada).
In Carino v. Insular Government of Philippine Islands, 212 U.S. 449 (1903), an Igorot native was judicially granted rights to his ancestral land despite being unable to produce a “paper title” which was deemed an unnecessary European imported concept. Judicially independent courageous judges can remedy these political distortions.
The Constitutional Native Court of Sarawak should take the bull by its horns to undo the mischief, and set the record straight under the rule of law using adat as the vehicle of genuine justice.
This court is the proper tweaking mechanism to bring the distorted picture into proper focus. Anything and everything in Sarawak — civil and criminal — orbits around Native law, custom and usage (adat) notwithstanding local, regional and national politics.
Proper and efficient fast-track law training is available to teach and train the innards of applying adat to suitably qualified community chiefs and headmen in all the fifteen divisions in arriving at judicial decisions that would stand up to local, regional, national and international scrutiny.
The United Nations World Court ought to be sent a copy of all future and forthcoming judgments of this Court since Sarawak was an international signatory to the big, blurred and politicised MA63 picture.
The world needs to know that issues encapsulated in the United Nations Declaration on the Rights of Indigenous Peoples of 2007 (UNDRIP), of which Malaysia is a signatory, is very much a relevant potent force.
We seriously need local political attitude adjustment in compliance with adat, the supreme law of Sarawak.
Adat must gain a stronghold not merely a foothold in order for it to attain a stranglehold on alien laws that do not fit into our tribal system of dispensing law and justice as a truly independent judiciary.
All said, done and dusted, a political illusion, like MA63, appearing as a constitutional mirage is nothing but spirit with no substance.
Sarawak must keep tweaking and adjusting the proper international customary law lens to give definition, substance, certainty and clarity to nothing else but to the grundnorm of the law of Sarawak — adat — validating pulau galau, pemakai menoa, temuda, tembawai, pendam and other relevant principles thereof.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.