FOREST RESERVE HAD NOT BEEN CLOSED?

THE COURT of Appeal on Thursday dismissed the prosecution's appeal against the High Court's decision to overturn the lower court's decision to fine six Kg Imahit natives a total of RM3,000 for entering the Kuala Tomani Forest Reserve in Tenom.

Justices Datuk Sulong Matjeraie, Dato' Azhar Haji Maah and Dato' Seri Mohamad Apendi Ali, in unanimously dismissing the appeal, upheld the High Court judge's decision to acquit and discharge Andawan Ansapi, 48, Barani Ambisi, 42, Ansanam @ Azman Yapau, 53, Johndy Kawar, 26, Stanley Boyor, 34, Sarim Arus, 54, of the first charge of entering the forest reserve.

The prosecution earlier informed the court that they would not proceed with the appeal against the first charge as they found out that the charge cannot be sustained because the Forest Reserve has not been closed.

According to the prosecution, if the Forest Reserve had not been closed, then it would not be an offence to enter and that the respondents were wrongly convicted for that offence and should have never been charged.

The prosecution is also appealing against the High Court's decision to acquit the respondents from the second charge of cultivating crops in the said Forest Reserve.

However, the Appellate Court deferred its decision on the appeal on the second charge to a date to be fixed later as the court needs to scrutinise in detail the submissions from both the prosecution and the respondents' counsel.

The High Court had, on March 4 last year, allowed the farmers' appeal and set aside the Magistrate Court's order and ordered the fine imposed by the lower court to be returned to them.

Judge Datuk David Wong, in his decision, held that the magistrate was wrong in saying customary rights cannot be established in a Forest Reserve.

The six were on Nov 12, 2010 convicted of both charges by the Tenom Magistrate's Court.

They were ordered to pay a fine of RM500 or 90 days' jail each on the first count of entering the Kuala Tomani Forest Reserve without permission at 4pm on Oct 30, 2009 as charged under Section 20(1)(C)(i) of the Forest Enactment 1968, which provides for a fine of up to RM50,000 or up to three years jail, or both, on conviction.

The farmers were also fined another RM500 in default 90 days' jail each on the second charge of illegally cultivating paddy at the same Forest Reserve on the same day as charged under Section 20(1)(b)(iii) of the same Enactment which also carries the same penalty as the first count.

In Thursday's proceedings, Deputy Public Prosecutor Manoj Kurup, in his submission against the second charge, raised six grounds of complaint and that their focus was on the High Court judge's error in interpreting Section 20 of the Enactment.

According to him, the High Court had erred in not considering that under the Enactment, there exists no recognition of NCR over land declared as forest reserves and that the High Court failed to consider that 'native rights' had been preserved for offences relating to State Land and alienated land but specifically excluded for land declared as Forest Reserves.

"Anyone claiming to have NCR over State Land that has been declared as Forest Reserve must prove that he had forwarded his claim to the District Officer or Collector as required under the Enactment and that such claim had been conceded in or admitted.

"The respondents did not show that their right to be on the land or to cultivate that land is an admitted right or conceded privilege under the Enactment. They, therefore, failed to prove that they had lawful authority to cultivate the land which was now a Forest Reserve.

That authority would have been a conceded or admitted right or privilege," said Manoj.

He said the High Court provided no authority for the proposition that NCR can be claimed over Forest Reserves and that what the High Court held in fact was that NCR can exist over State Land.

Citing a decided case, Manoj said that case does not for one moment hold that NCR can be claimed over State Land that, after due process, had been declared as a Forest Reserve.

"The High Court had erred in finding that NCR existed when in fact it had no jurisdiction to rule on NCR," he said.

Manoj submitted that the High Court did not at all consider Section 6 to 12 of the Enactment, which provides a comprehensive and detailed process to be followed before State Land is finally declared Forest Reserve.

"Had the High Court appreciated these statutory provisions, it would have noted that there are two publication and notification (Section 8 and Section 12(5)) processes before the land is finally declared a Reserve and that the purpose of these were to account for native rights.

"The High Court, therefore, failed to appreciate that native rights would not be ignored and once taken into account would be subsumed in the declaration and cannot thereafter exist separate parallel to it," he said.

Manoj also submitted that the High Court failed to appreciate the effect of declaration of land as Forest Reserve and that under Section 12(6) of the Enactment, any rights that are not admitted and any privileges not conceded are extinguished.

He also said the High Court erred in departing from the plain and unambiguous words of Section 20 of the Enactment that required "authority" to be found within the provisions of the Enactment itself.

"Instead, the High Court expanded the plain words in Section 20 to include 'authority' from the 'practice by the habit of the people', which were 'not the dictates of the written law'," he said.

Manoj further submitted that the High Court failed to appreciate that Forest Reserves, unlike State and alienated land, did not have a savings provision with respect to native rights.

Citing another decided case, Manoj said the respondents never showed that the NCR they were claiming had been decided by the District Officer or Assistant Collector of Land Revenue and that the High Court held that NCR existed when it was no part of the High Court's function to so decide.

Meanwhile, counsel Ram Singh, who appeared together with counsel Fulton Mark Sitiwin in representing the respondents, submitted that such customary rights of the natives were continuously practised even before independence of Sabah in 1963 or prior to the gazette in 1984 as compared to the native customary rights as defined under Section 15 of the Land Ordinance, including customary tenure, as one of the seven specific criteria.

Ram said, on the strength of Section 15, 65 and 67, a native can readily establish native customary rights according to the specific criteria.

"In our present appeal, to show continuous occupancy or cultivation for at least three years is not a difficult criteria to meet as adduced in the testimonies of the respondents and other defence witnesses during the trial.

"Further, there is no such requirement of prior lawful entry as a prerequisite to establish NCR under the Forest Enactment (prior to the 1984 gazette) since the 'Murut' people like the respondents were on their lands when it was still a State land till the date of their arrests," said Ram.

He submitted that the evidence during the trial showed the respondents from the Murut 'Tagol' community admitted cultivating 'hill paddy' within the Forest Reserve and that from the start of the trial the defence had the onus to prove the existence of their 'legal rights', that is native customary rights over the land.

Ram also submitted that as evidenced throughout the trial, which was not challenged by the prosecution, through photographs of fruit trees, burial grounds and Statutory Declarations, the Murut were living in Kg Imahit for a long time and that the respondents, who had been cultivating on the land prior to it being gazetted as Forest Reserve, do not need to get authority from the Forestry Department to cultivate hill paddy.

He further submitted that when the High Court judge said 'authority' to the said land, he had taken into account of the NCR of the Murut people in Kg Imahit and their 'customs'.

State Attorney General Datuk Roderic Fernandez was also present.