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

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.