AN UNHAPPY NEW YEAR FOR SARAWAK'S OLD GUARD
[An important development and a huge step forward for indigenous rights In Sarawak. Congratulations to NCR lawyers - especially Baru Bian - and their hardworking team].
Original story from MALAYSIAKINI
Sarawak's political elite have accumulated power and startling wealth by taking over land from native communities, but now face the prospect of setbacks in the new year.
The entrenched ‘old guard’, accustomed to holding undisputed control over public life, may be struck by a triple whammy.
Firstly, the courts have overturned several ministerial decisions to award land to crony companies. Land minister James Masing has branded critics of Sarawak's land policies as "arrogant and ignorant", but judges have disagreed in several prominent cases, granting local villagers’ Native Customary Rights (NCR) claims to land taken over by the government.
Secondly, the new media has exposed ‘get-rich-quick’ land schemes to the world – and crucially, to many Sarawakians previously force-fed a steady diet of propaganda by state-owned television RTM and local newspapers.
Thirdly, the ruling political class is now confronted with the prospect of losing the majority of the urban Chinese-dominated seats in Kuching, Sibu, Miri, Sarikei and Bintulu, and even a sizeable number of rural Dayak seats in the upcoming state election to the Pakatan Rakyat.
Political observers are predicting a BN loss of a dozen urban seats, and a similar number of suburban and rural seats. This would be the largest swing since the BN consolidated its power in the 1991 state election, after nearly being replaced by the now-defunct Parti Bansa Dayak Sarawak (PBDS) and Permas in the 1986 ‘Ming Court Affair'.
'Parade of federal leaders'
Commentators have even speculated that Chief Minister Taib Mahmud may step down immediately before the state election, and allow his deputy Alfred Jabu to lead a caretaker government.
This is seen as a potential last-ditch attempt to defuse criticism of Taib's financial and land deals, both within and outside the BN, a bold gambit that would remove Taib as the prime target for a Pakatan campaign.
However, other observers point out this ‘shock' scenario would lead to vicious and potentially insoluble infighting within the state BN since Taib has traditionally imposed his control over the factions in his PBB by playing off political rivals in the party against one another.
Until now, BN leaders have forged a united front, backing Taib to lead them into the election, saying he is the ‘glue' that keeps the BN together.
"There has been a groundswell in recent months in northern Sarawak: (Sarawak PKR chief) Baru Bian is expected to win in Ba'kelalan," an influential Sarawak politician told Malaysiakini, "so there's been a parade of federal BN leaders visiting Lawas and Limbang, including (information minister) Rais Yatim and (deputy premier) Muhyiddin Yassin this month, and (premier) Najib Razak next month.
"These visits have produced headlines like ‘Lawas may get a new airport' or ‘Plans afoot for a new hospital' or ‘Malaysia ready to build bridge at Pandaruan in Limbang' – they must be terrified of Baru Bian winning," he said.
Baru Bian (right) is from the minority Lun Bawang ethnic group in a state made up entirely of ethnic minorities. He was raised in Ba'kelalan, a hilly, poor region upriver from Lawas.
Baru Bian, then an independent candidate, lost in Ba'kelalan to Nelson Balang Rining of the BN by 475 votes in the last state polls in 2006. He then mounted an unsuccessful election petition seeking to nullify the result; in his petition, he alleged Nelson Balang and his agents had resorted to vote-buying by giving cash to voters.
'Game changing’ rulings
Baru Bian and a handful of other land rights lawyers have been responsible for a string of recent landmark rulings in NCR cases against the state government. The judgments have returned forests to native Iban, Malay and other landowners throughout Sarawak, following intrusion by logging or plantation business interests with powerful backers in the government.
"These cases are changing the game," says Muhin Urip, a native land rights advocate. "These rural people are showing real courage, standing up to the state government, and to the big bullies in the logging sector. They've shown no fear, even after they were harassed by gangsters, by police and by the authorities."
The NCR judgments hinged on the native plaintiffs demonstrating that they had cleared or used land, for dwellings, fruit trees, burial sites or shrines, or usual rights of way to their farms or cemeteries, before the beginning of 1958.
The state government has insisted that the onus of proof lies squarely on the native communities themselves. Aerial photographs dating from colonial times have been invaluable in helping native villagers win their NCR lawsuits.
The Federal Court, the highest legal authority in Malaysia, has recognised that forests reserved for hunting and collecting produce, or ‘pulau’, and the territorial area in which the forest is located, or ‘pemakai menoa’, fall under the realm of NCR.
But the state government has not, to date, altered its land policies.
High-profile Penan lawsuits
Over the past decade, Baru Bian has taken on several high-profile Penan NCR battles, including a new Ba Jawi lawsuit announced last week.
However, the Penan have yet to win a pivotal legal decision, similar to those obtained by the Malays and Ibans in Sarawak, and the Orang Asli in the peninsula.
This is because Penan NCR claims are complicated by the fact that most of the 12,000 to 15,000 Penan have only settled in the last few decades. The Penan were mainly nomadic, with precious few permanent crops or dwellings, before 1958.
But lawyers for the Penan argue their NCR claims are no different from other communities', since the Penan also rely on the forests for their food and survival. They say the traditional Penan practice of ‘molong’, putting aside forest resources for shared use, is almost identical to the Iban custom of preserving ‘pulau’ for communal use.
"By and through their customary practice, mostly characterised as ‘molong’, tribal groups of the nomadic Penan lived in and within distinct territories. Traditional dwelling huts called ‘lamin toro’ were left behind as distinct marks of earlier settlements," the Ba Jawi plaintiffs said, in their statement of claim to the High Court.
"Ba Jawi Penans, like the 200-plus communities who have taken companies and the Sarawak government to court for NCR land rights, are being forced to seek the judgments for justice and for the people's rights to be defended," said See Chee How, a lawyer for the Ba Jawi villagers.
"Beyond the court case, the untold sufferings of the Ba Jawi people and others in similar cases mustn't be hidden. Land to the native people isn't just property, it's a crucial aspect of the living history of the community, and very much the lifeline of the people."
Land rights and elections will certainly contribute to an intriguing new year in Sarawak.
The entrenched ‘old guard’, accustomed to holding undisputed control over public life, may be struck by a triple whammy.
Firstly, the courts have overturned several ministerial decisions to award land to crony companies. Land minister James Masing has branded critics of Sarawak's land policies as "arrogant and ignorant", but judges have disagreed in several prominent cases, granting local villagers’ Native Customary Rights (NCR) claims to land taken over by the government.
Secondly, the new media has exposed ‘get-rich-quick’ land schemes to the world – and crucially, to many Sarawakians previously force-fed a steady diet of propaganda by state-owned television RTM and local newspapers.
Thirdly, the ruling political class is now confronted with the prospect of losing the majority of the urban Chinese-dominated seats in Kuching, Sibu, Miri, Sarikei and Bintulu, and even a sizeable number of rural Dayak seats in the upcoming state election to the Pakatan Rakyat.Political observers are predicting a BN loss of a dozen urban seats, and a similar number of suburban and rural seats. This would be the largest swing since the BN consolidated its power in the 1991 state election, after nearly being replaced by the now-defunct Parti Bansa Dayak Sarawak (PBDS) and Permas in the 1986 ‘Ming Court Affair'.
'Parade of federal leaders'
Commentators have even speculated that Chief Minister Taib Mahmud may step down immediately before the state election, and allow his deputy Alfred Jabu to lead a caretaker government.
This is seen as a potential last-ditch attempt to defuse criticism of Taib's financial and land deals, both within and outside the BN, a bold gambit that would remove Taib as the prime target for a Pakatan campaign.
However, other observers point out this ‘shock' scenario would lead to vicious and potentially insoluble infighting within the state BN since Taib has traditionally imposed his control over the factions in his PBB by playing off political rivals in the party against one another.
Until now, BN leaders have forged a united front, backing Taib to lead them into the election, saying he is the ‘glue' that keeps the BN together."There has been a groundswell in recent months in northern Sarawak: (Sarawak PKR chief) Baru Bian is expected to win in Ba'kelalan," an influential Sarawak politician told Malaysiakini, "so there's been a parade of federal BN leaders visiting Lawas and Limbang, including (information minister) Rais Yatim and (deputy premier) Muhyiddin Yassin this month, and (premier) Najib Razak next month.
"These visits have produced headlines like ‘Lawas may get a new airport' or ‘Plans afoot for a new hospital' or ‘Malaysia ready to build bridge at Pandaruan in Limbang' – they must be terrified of Baru Bian winning," he said.
Baru Bian (right) is from the minority Lun Bawang ethnic group in a state made up entirely of ethnic minorities. He was raised in Ba'kelalan, a hilly, poor region upriver from Lawas.Baru Bian, then an independent candidate, lost in Ba'kelalan to Nelson Balang Rining of the BN by 475 votes in the last state polls in 2006. He then mounted an unsuccessful election petition seeking to nullify the result; in his petition, he alleged Nelson Balang and his agents had resorted to vote-buying by giving cash to voters.
'Game changing’ rulings
Baru Bian and a handful of other land rights lawyers have been responsible for a string of recent landmark rulings in NCR cases against the state government. The judgments have returned forests to native Iban, Malay and other landowners throughout Sarawak, following intrusion by logging or plantation business interests with powerful backers in the government.
"These cases are changing the game," says Muhin Urip, a native land rights advocate. "These rural people are showing real courage, standing up to the state government, and to the big bullies in the logging sector. They've shown no fear, even after they were harassed by gangsters, by police and by the authorities."The NCR judgments hinged on the native plaintiffs demonstrating that they had cleared or used land, for dwellings, fruit trees, burial sites or shrines, or usual rights of way to their farms or cemeteries, before the beginning of 1958.
The state government has insisted that the onus of proof lies squarely on the native communities themselves. Aerial photographs dating from colonial times have been invaluable in helping native villagers win their NCR lawsuits.
The Federal Court, the highest legal authority in Malaysia, has recognised that forests reserved for hunting and collecting produce, or ‘pulau’, and the territorial area in which the forest is located, or ‘pemakai menoa’, fall under the realm of NCR.
But the state government has not, to date, altered its land policies.
High-profile Penan lawsuits
Over the past decade, Baru Bian has taken on several high-profile Penan NCR battles, including a new Ba Jawi lawsuit announced last week.
However, the Penan have yet to win a pivotal legal decision, similar to those obtained by the Malays and Ibans in Sarawak, and the Orang Asli in the peninsula.This is because Penan NCR claims are complicated by the fact that most of the 12,000 to 15,000 Penan have only settled in the last few decades. The Penan were mainly nomadic, with precious few permanent crops or dwellings, before 1958.
But lawyers for the Penan argue their NCR claims are no different from other communities', since the Penan also rely on the forests for their food and survival. They say the traditional Penan practice of ‘molong’, putting aside forest resources for shared use, is almost identical to the Iban custom of preserving ‘pulau’ for communal use.
"By and through their customary practice, mostly characterised as ‘molong’, tribal groups of the nomadic Penan lived in and within distinct territories. Traditional dwelling huts called ‘lamin toro’ were left behind as distinct marks of earlier settlements," the Ba Jawi plaintiffs said, in their statement of claim to the High Court.
"Ba Jawi Penans, like the 200-plus communities who have taken companies and the Sarawak government to court for NCR land rights, are being forced to seek the judgments for justice and for the people's rights to be defended," said See Chee How, a lawyer for the Ba Jawi villagers.
"Beyond the court case, the untold sufferings of the Ba Jawi people and others in similar cases mustn't be hidden. Land to the native people isn't just property, it's a crucial aspect of the living history of the community, and very much the lifeline of the people."
Land rights and elections will certainly contribute to an intriguing new year in Sarawak.
KERUAH USIT is a human rights activist - ‘anak Sarawak, bangsa Malaysia’. This weekly column is an effort to provide a voice for marginalised Malaysians. Keruah Usit can be contacted atkeruah_usit@yahoo.com.
