SUHAKAM blames Land and Survey Department for land disputes

The Human Rights Commission (SUHAKAM) has put the blame on the Land and Survey Department for the constant occurrences of land disputes between the natives and the government in Sarawak.

Siva Subramaniam, head of SUHAKAM complaints working group said that the department simply issued land leases or titles to companies without conducting ground survey.

“Instead, the department gives approvals by merely sitting in the office,” he said at a dialogue with Kampung Stenggang.

He suggested that the staff of the department should conduct ground survey first before issuing land leases or titles to companies.

“It is improper and impractical for the department to approve land applications without checking. It is unbelievable, but unfortunately the present normal practice of the department is that it will give approvals based on the aerial photographs of the land acquired, and most of the time the information would be different from the actual land status,” he pointed out.

Of course the staff could not be wholly blamed because they executed their duties according to the existing procedures and regulations.

Partly to be blame, said Subramaniam, are the State lawmakers, the State assemblymen as they failed to rectify the Land Code.

“They should do something to prevent more land disputes from occurring. This is actually the root to the land issue problems that we are facing now.

“If the land policy is not going to be reviewed, I am worried that the indigenous people will gradually lose their native customary rights over their land.

“The problem here is the natives may have the rights over the land but every time if there is a dispute when other parties are being issued titles for the same plots of land, the natives will still lose their case because they don’t have the documents to prove that is their land,” he said.

Adat and Human Rights in Sarawak

Adat and Human Rights in Sarawak

Prior to the Brooke rule and subsequent colonial administration, the indigenouscommunities, particularly the Dayak groups of Sarawak, were governed by their own respective adat. Over time, this adat has been forcibly changed into a homogenous statebased institution, thereby eliminating its uniqueness to the particular indigenous community. Among other functions, the adat is used by Sarawak’s indigenous communities to claim rights over land, forest resources and their livelihood. The failure to understand the importance of adat to pre-colonial Dayak indigenous communities of Sarawak would render the discourse on human rights futile

Clifford Sather said that adat:

“[…] covers all of the various customary norms, jural rules, ritual interdictions and injunctions that guide an individual’s conduct,and the sanctions and forms of redress by which these norms and rules are upheld…these rules apply to virtually all spheres of human life, social, economic, religious and political.”3

In this sense, adat is an all-encompassing institution that presides over activities such as marriages, religious festivals, death and mourning, childbirth, dance and music,construction of new longhouses, and even traditional past-times such as music and weaving. 

It is also important to note that unlike the Malay notion of adat, the concept of adapt among many Dayak communities of Sarawak is not distinct from religious rituals and practices. It is one and the same thing. According to Ter Haar (1948), the adat is not restricted to what we commonly regard as “customary law”.4 The concept of adapt mentioned in this report is not restricted to the notion of adat as law or rules. Because the adat resembles the generic concept of ‘customs’, it includes all the activities people customarily practise in their society. It also covers the individual’s behavior and personal habits, whether he/she is practising good or bad adat.

Generally, the function of the adat is to ensure harmonious relationship among members within the community and also maintain the general state of wellbeing with the spirit world. Breaching this adat would risk a breakdown in social relationship which is punishable in both the secular and spiritual senses.

The adat and state formation

Before Sarawak came under colonial rule, the indigenous communities did not define their social identities based on ‘ethnicity’ as we understand it today (e.g. Iban, Bidayuh, Kayan). Their social identities were defined by their geographical space, such as people belonging a particular river tributary, hill/mountain or watershed areas. Their social loyalty was based on these geographical spaces and its own kinship system. As such,each community living within a specific geographical space would be governed by its own unique adat. 

However, with the formation of the state that began with the Brooke administration, the adat – as a concept and its traditional functions – was changed to fit the requirements of the state constitution. The evolution of the adat from its unique traditional form to its constitutional profile today is primarily caused by the adoption of the values of thecolonial and post-colonial governments.

When the Brooke administration began to strengthen its grip on Sarawak in the mid-19^th century, the structure of the adat was altered and it was constituted as ‘customary law’.For instance, during the Brooke administration the Iban tunggu (fines) according to the adat were systematised and assigned monetary values. Also, they introduced courts to replace the Iban bechara (hearing) that was usually carried out in a longhouse ruai (verandah) and witnessed by the longhouse inhabitants.These new colonial practices, in replacing the traditional adat, eventually spread to all the indigenous communities in Sarawak.

The adat then became an institution sanctioned by the state. The adat at the local level is administered by the Penghulu or chiefs who receive a salary from the state. Clifford Sather said that due to this ruling and the replacement of traditional adat by the state, the Brookes began to eliminate some aspects of the adat that seemed negative or morally bad by their standards. These included the death penalty for incest, forcible seizure of property, slavery and headhunting. What is left of the adat now is akin to the precious antique collections stored in a government-run institution at the Majlis Adat Istiadat, under the umbrella of the Sarawak Chief Minister’s Office.