REMEDY TO NULLIFY STATUS RESTS WITH NATIVE COURT

KOTA KINABALU: The High Court here dismissed with costs the judicial review application by a Ketua Kampong (Village Chief) in Sandakan to quash the Government's decision to reject his application to review the status of a Chinese businessman's native certificate.

It said any attempt to quash the status of a person falsely or wrongly declared as a native is best done at the Native Court which was responsible for the incorrect decision or the District Native Court, and not the Native Affairs Office or its officials.

Judge Datuk David Wong found the applicant, Madlis Aziz @ Aziz, does not have the locus standi under Section 3(3) of the Interpretation Ordinance.

Madlis, 67, who is the village chief of Kg Keniogan, filed the application on Feb. 2 this year and named the Board of Officers as the first respondent and the Native Affairs Office Director as the second respondent.

He sought a declaration that the first respondent's decision dated Jan 20, this year pursuant to its power under Section 3(3) Interpretation (Definition of Native) Ordinance (Sabah Cap.64) was invalid and void.

Madlis also sought an order to remove and quash the first respondent's said decision and a writ of mandamus to compel the first and second respondents to review the authenticity of one Chua Yong Kim's Native Certificate.

In his affidavit, Madlis claimed that he was involved in a civil suit against Chua in the Sandakan High Court together with 97 other plaintiffs on their claim against Chua for becoming the owner of various parcels of native title land totaling approximately 395.62 acres at Sungai Sugut, Labuk through misrepresentation and inequality of bargaining power.

Madlis said, during the civil suit, Chua, 48, had relied on and exhibited his Native Certificate, which he obtained in 1981, as evidence to entitle him to own the native lands.

He said he made an application to the first respondent to review Chua's Native Certificate based on the grounds that Chua's birth parents are of Chinese descent and he does not have a purported native mother named Mariamah Berahim and that Chua's native certificate did not exist as it was never issued by the relevant Native Court.

Madlis claimed on Jan. 20 this year the first respondent dismissed his application based on the grounds that Section 3(3) of the Interpretation (Definition of Native ) Ordinance (Sabah Cap.64) was only a procedure of appeal or revision in cases where a native person's application for a declaration was dismissed by the Native Court;

And the first respondent had no power to revise or scrutinise the application as the applicant was not "the person claiming to be native" as per section 3(1) of the Interpretation (Definition of Native) Ordinance (Sabah Cap.64).

Wong, in his decision on May 25, held that the Interpretation Ordinance in essence contained three matters, namely, it defines who can apply for a declaration as a native of Sabah, such application must be made before a Native Court established under the Native Courts Enactment and such declaration by the Native Court shall be final and conclusive.

"Reading the Interpretation Ordinance as a whole, it is my view the sole purpose of this piece of legislation is to provide a mechanism to people who are qualified under the Interpretation Ordinance to apply to the Native Court to have his status declared as a native of Sabah as defined in the same.

"It does not contain any specific provision for challenge by third party before or after the declaration of the native status," he said.

Wong declined the submission by the applicant's counsel that the court must read into Section 3(3) of the Interpretation Ordinance to allow strangers or third party with interest to intervene in the application proceedings for native status.

He said if that was the intention of the legislators; they could have easily put the words 'subject to appeal for review by a party apart from the person claiming to be a native for native status' in Section 3(3) of the Interpretation Ordinance, adding that established rules of construction prohibit the court from inserting words into legislation.

He further held that one cannot ignore the fact that Sections 3(1), 3(2) and 3 (3) are interrelated to each other, and as pointed out by the first respondent's counsel, each sub-section is made subject to the sub-section immediately preceding it.

"The style of drafting of this provision in my view leads to the natural conclusion that Section 3(1) is the parent provision with Section 3(2) and (3) as the offspring provision so to speak.

"Bearing in mind that the Interpretation Ordinance was created by the legislators to ensure that qualified persons are not disenfranchised from their rights to be called as natives of Sabah and hence obtaining the protection and privilege accorded to by Article 153(2) of the Federal Constitution.

"The review or appeal to the first respondent hence could only refer to the persons who had failed to obtain native status before the Native Court. Those who are successful in their claim for native status of course would not ask for review or appeal.

"Does that mean that there is no remedy to right any incorrect decision of the Native Court?

My answer is in the negative as there is Section 16 of the Native Court Enactment 1992 (Power of revision)," held Wong.

He said it can be seen from the words of the said provision that the legislators had envisaged that the Native Courts in Sabah may commit errors in their judicial duties and provide a mechanism as to how those errors could be rectified.

One can also see that the legislators' intention is to ensure matters concerning with native rights ought to be dealt with the Native Courts.

"Further, Section 16 of the Native Court Enactment 1992 has in-built safeguard which requires ensuring the District Native Court when hearing a revision must also hear anyone who may be prejudiced by its revisions which invariably would be the native certificate holder.

"The in-built safeguard reflects the basic principle of natural justice and that is 'no one is to be condemned unless he or she is given the chance to state his or her case'. Any breach of this principle would only lead to one result and that is the decision cannot stand and must be set aside," he said.

Wong also held that in the present case, the applicant's and the other 97 plaintiff's right to the Native Lands has been restored by a judgement of the Sandakan High Court on Dec 23, 2011 and the issue of whether or not Chua is a non native is no more a live issue.

"The decision of the High Court of Sandakan was handed down about a month prior to the decision of the first respondent. In my view, once the High Court decision favoured the applicant and the other 97 plaintiffs in the civil suit, the decision of the first respondent had become academic or of no consequence as the applicant is and cannot be taken as a person 'adversely affected' by the decision of the first respondent," held Wong.

Meanwhile, Madlis in his grounds in seeking for relief claimed that the first respondent had acted unreasonably, irrationally and unlawfully in dismissing his application pursuant to Section 3(3) of the Interpretation (Definition of Native) Ordinance (Sabah Cap 34).

He claimed that the first respondent had failed reasonably, rationally and lawfully to consider among others that Chua's Native Declaration was wrongfully given as Chua was always a Chinese descent and had no purported mother named Mariamah Berahim.

He claimed that Chua had given sworn testimony in court confirming that he is Chinese and had no native blood in obtaining the Declaration of Native and that one Awang Pakar had given sworn testimony in court that his birth mother was Mariamah Berahim.

Madlis also claimed that the first respondent had misunderstood the basis of the applicant's application which was about the status of Chua being a non-native and not whether the Native Declaration had existed or not and that Chua has blatantly abused the Declaration of Native to justify his ownership of native lands.

Madlis was represented by counsel Dr David Fung and Syarulnizam Salleh, counsel Martin Idang appeared for the first respondent while State counsel Jupirin Wong represented the second respondent.

Counsel Edwin Tsen appeared for Chua.