SLA MEMBERS AT ODDS ON NCR

THERE appears to be a difference in opinion on the Native Customary Rights (NCR) issue within the Sabah Law Association (SLA) with a member saying members of the Sabah Bar do not necessarily agree on its stated official stand.

While its Chairman of the Sub-Committee on Native Laws, Customs and Cultures Datuk John Sikayun strongly disagreed with State Attorney-General Datuk Roderic Fernandez' view that there is a cut-off date for NCR under the Sabah Land Ordinance (SLO), his counterpart on the Constitutional and Administrative Law Issues Sub-Committee, S. Vanugopal, disgreed.

"Speaking in my personal capacity, the State Attorney-General's views are certainly right from the Positivist's view of the relevant provisions in the SLO, and at Common Law," he said in a statement, adding that lawyers are free to express their views on the matter.

According to Venugopal, a law must be interpreted from the Positivist viewpoint and not from the Naturalist's viewpoint, that is, the law should be interpreted as it is and not what it ought to be or should be.

"If the law is interpreted from a Naturalist's viewpoint, that is, what it ought to or should be, then the law would be subjective and, therefore, become uncertain," he said.

Roderic had said that his interpretation of the SLO was that there was no NCR after 1930 when the SLO came about. However, his view that NCR cannot be created after the SLO came into force was challenged by several NGOs and politicians.

A senior Federal Minister from the State even called for the AG's resignation on account of his view. However, Chief Minister Datuk Seri Musa Aman said the State Cabinet would discuss the issue with a view to arriving at a win-win situation. The Sarawak land code puts the NCR cut-off date at 1959.

Vanugopal said in gist, the objection taken to the AG's view is that there is no cut-off date for NCR under the SLO.

"The crux of the debate on the cut-off date for the establishment of NCR hinges on the interpretation of the word 'still' in Section 88 of the SLO.

"It is a basic rule that no words in a Statute are used in vain," he pointed out. According to Vanugopal, Section 88 makes an exception to holding land in the State without documentary title to land that is still held under native customary tenure.

"'Still held' in the context of the said Section refers to a time when the claim arose before the coming into force of the SLO, that is, before 13th December 1930.

"If this was not the intention of the Legislature, then the words 'still held' would have been omitted from the Section. The decisions referred to by the AG support this view," he explained.

On Madeli's case, Vanugopal maintained that the Federal Court held that the respondent's claim occurred prior to the Sarawak Land Ordinance coming into force.

"In none of the reported cases have the courts recognised NCR claims that were established after the SLO came into force. I believe that before long, this issue would be put to rest through judicial decisions," he said. (DE)