The development of the law on native customary rights and ownership of land in Sarawak is the focus of a new book by former state Attorney-General Datuk JC Fong.
Titled Law on Native Customary Land in Sarawak(LINK), it sets out the law and customs relating to the creation of native rights and acquisition of native titles to land in the state.
It also looks at how such land may be inherited, given away, transferred or lost and how the rights to such land can be extinguished when the land is needed for development.
According to Fong, the book is not about his personal opinion or views on native customary laws in Sarawak.
Instead, he aimed to provide a clear understanding of how native customary law had developed since 1841, when James Brooke landed in Sarawak.
“In writing this book, my sincere desire is to share my knowledge on a subject which I have acquired not just through the practice of this area of the law, but also from an in-depth study of historical documents, including the Land Orders made by the Rajahs.
“I intend to make the law clearer and have no wish to engage in debate with those who clamour for what the customary law ought to be. Those are matters within the purview of the Majlis Adat Istiadat and the State Legislative Assembly,”
Law on Native Customary Land in Sarawak is Fong’s second book. The 370-page hardback is published by Sweet and Maxwell Asia and is priced at RM350.
This book examines the rather unique system of land held under native customary rights within the Torrens System which accords protection of proprietary rights to land based upon the registration of titles and of interests in land.
This book provides a comprehensive account on the development of the law on native rights and ownership over land since the assumption of sovereignty, in the early 1840s, by the first Rajah of Sarawak, Sir James Brooke, over what are now the Kuching and Samarahan Divisions. Sarawak was, then, a sparsely populated country. However, the natives already had their own customs and land ownership tradition, based largely on Indonesian Adat which had been well documented in the Secretariat Circular No 12/1939.
The author carefully analyses what has received judicial recognition, that is, the common law “respects the pre-existence of rights under native laws or customs though such rights may be taken away by clear and unambiguous words in a legislation” and considers whether the common law or international customary law creates rights for natives over areas which were not occupied by them or their forefathers, at the time when the Rajah assumed sovereignty over the respective regions of what is now modern Sarawak.
The law relating to creation, acquisition, dealings over, loss and extinguishment of native customary rights over land is set out in detail and with accuracy. The author also addresses the perception gap between what the natives view as practices or customs which enable them to claim rights to land, and the customs which the law recognises or have the force of law, for the purposes of creating or acquiring rights over land. What gave rise to this perception gap is explained, together with the pertinent point as to whether the civil courts have the jurisdiction to modify, discard or change well established native customs which the courts have a duty to take judicial notice of.
All the recent judgments relating to native customary land are analysed and their effect on native claims to land professionally scrutinised. The efforts by the State to develop native customary land, deemed valuable assets to the natives, to enhance their economic value and potentials, are considered in the last chapter.
This book will be of great interest to lawyers, owners and developers of native customary land and those who are keen to acquire more knowledge of the land system of the State of Sarawak or to understand how the laws passed by the Rajahs and later by the Legislature of Sarawak have restricted or set conditions for the creation and recognition of native customary rights over land.