YOGESWARAN SUBRAMANIAM

SITUATING NATIVE CUSTOMARY RIGHTS (NCR) TO LAND IN SABAH AND SARAWAK WITHIN THE FEDERAL CONSTITUTION

Introduction

Situating native customary rights (ncr) to land in sabah and sarawak within the federal constitution. Examine the challenges and constitutional safeguards for Native Customary Rights (NCR) to land in Sabah & Sarawak, analyzing legal tensions and the impact of English property law.

Abstract

True to Malaysia’s pluralistic legal system, the natives of Sabah and Sarawak, who constitute a majority in their respective states, enjoy explicit legal recognition of native customary rights (NCR) to lands and resources. However, adequate protection and regard for native land laws and customs continue to be a significant challenge for local native communities. This paper examines the tension between formal NCR and their practical function with reference to constitutional arrangements and safeguards for Sabah and Sarawak in the Federation of Malaysia’s formation. Beyond the Federal Constitution, it is also suggested that seeds had been sown for the legal subordination of native land laws and customs through the earlier imposition of English property law concepts in state land legislation and its subsequent perpetuation. This view also finds support in: (i) the 2019 amendment to the Sarawak Land Code 1958 to enhance the recognition of native land customs; and (ii) judicial developments on the subject as expounded in the Federal Court decisions in the TR Sandah case. Notwithstanding its skew towards legal centralism, parity for these laws and customs can be achieved if these matters are prioritised as a matter of policy by the State governments. 

Review

This paper tackles a highly pertinent and complex issue within Malaysia's pluralistic legal landscape: the enduring challenges faced by Native Customary Rights (NCR) to land in Sabah and Sarawak despite their explicit legal recognition. It succinctly highlights the significant tension between the formal legal status of NCR and the practical difficulties local native communities encounter in safeguarding these rights. By situating this discussion within the framework of the Federal Constitution and the constitutional arrangements surrounding Malaysia's formation, the study promises to offer a critical examination of the mechanisms intended to protect, yet often fail to fully uphold, native land laws and customs. The abstract outlines a compelling argument that the subordination of native land laws and customs extends beyond constitutional provisions, having historical roots in the imposition and subsequent perpetuation of English property law concepts within state land legislation. This analytical approach, combining constitutional scrutiny with a historical-legal perspective, appears robust. The paper indicates its intent to substantiate this view through an analysis of the 2019 amendment to the Sarawak Land Code, which sought to enhance native land recognition, and through significant judicial developments, particularly the Federal Court's decisions in the TR Sandah case. These specific examples suggest a grounded and evidence-based exploration of both legislative efforts and judicial interpretations influencing NCR. Ultimately, the paper aims to not only diagnose the problem of legal centralism skewing the parity of native laws but also to propose a pragmatic solution. Its conclusion that parity can be achieved if NCR matters are prioritized as a matter of policy by State governments offers a clear, actionable insight. This focus on policy prioritisation shifts the onus from merely identifying legal shortcomings to advocating for governmental commitment, making the paper a valuable contribution to ongoing debates about indigenous land rights, legal pluralism, and governance in Malaysia. It underscores the critical need for political will to translate formal recognition into effective protection for native customary rights.

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