Tribal courts are the primary tribal institutions charged with carrying the flame of sovereignty and self-government.
PROFESSOR FRANK POMMERSHEIM, AMERICAN PROFESSOR, AUTHOR, AND POET SPECIALISING IN THE FIELD OF AMERICAN INDIAN LAW
Sarawak’s Constitutional Native Court system is granted a firm mandate in the Federal Constitution (FC) at Article 145(3) which, among other things, prohibits the (federal) Attorney General from discontinuing proceedings in a native court.
Proceedings in a native court include matters of civil, criminal, constitutional and native law. No legislation is required to give effect and context to a constitutional mandate unless some ambiguity is intentionally intended.
Article 72(1) of the FC says that proceedings in a State Legislative Assembly shall not be questioned in any court which means that the Native Courts Ordinance 1993 is carved in legislative reinforced concrete assuming Sarawak is a “State” of Malaysia in the wake of constitutional arrogance expressed as a constitutional amendment made without notice to the United Kingdom as one of the key partners of the Malaysia Act.
The Sarawak government must give its Constitutional Native Court free rein to adjudicate on any matter affecting its sovereignty. The grotesquely aberrant MA63 is a legal goldmine waiting to be quarried where the doctrine of laches is impotent.
The enforcement of treaty law (MA63) at Article 76(1)(a) FC casts a giant spotlight on Article 76(2) FC prohibiting Parliament from making any law that infringes on or affects native law or custom in Sarawak and Sabah.
Another spotlight that causes constant sunburn to the feds is Article 150(6A) FC which nullifies and negates the Proclamation of Emergency on matters affecting native law and custom.
Article 95B FC is also another clarion call identifying, demarcating and disallowing the Federal List from affecting, disturbing or coercing the State List.
On any given day in Malaysia, the FC is supposed to be the supreme law of the land. Therefore, the Malayan, Malaysian and Sarawak judiciary must not be cowed by non-judicial forces.
President Andrew Jackson, in ignoring the US Supreme Court’s ruling derided Chief Justice John Marshal’s decision in 1832, dared the Court to enforce the law which, sadly and unfortunately, no court anywhere can do.
Malaysia’s judiciary has no independent police force to enforce its decisions, orders and judgments. The Malaysian judicature seems to be a hopeless mess consisting rules of court, past decisions, written laws with the insidious and inevitable shadow of the other two organs of state.
Law and justice today in Malaysia are like the two outstretched arms of a scarecrow upon which perch screaming cawing crows laughing and mocking the very bastion of decency of a democratic country where people innocently cast their votes and rarely send an innocent to the legislature.
Sarawak’s Constitutional Native Court must start getting busy and ready for the future. Lawyers, judges and paralegals can be taught, trained and equipped with sharp legal knives to eviscerate the cadaver of MA63 to determine its cause of death without resurrecting a Frankenstein.
A Native Police Force should become a reality as should a Department of Corrections for incarcerating those convicted of crimes. Huge employment opportunities await Sarawakians.
Adat can play a crucial role in the dispensation of justice. All relevant and required amenities and facilities can be readily affordable and made available given the fact that Sarawak produces 850,000 barrels of oil every day.
“The fire of hope almost went out; we have to rekindle it,” cautioned Chief Red Cloud (1832-1901) of the Oglala Sioux when America became insatiably hungry for more and more Indian lands.
Sarawak must rekindle the constitutional and legislative fires lest some alien forces think the summer of discontent has arrived.
Sarawak can be the leading edge of change using adat as the cornerstone of law and justice instead of its temporary bleeding edge with the unresolved oil royalty and sales tax issues.
The right to be let alone is the basic premise of MA63 in its original role and version when Sarawak was invited to join the Federation of Malaysia as an equal partner.
It will be a miracle if Malaya cannot prove its leap of faith in misrepresenting, misleading, mistaking, mismanaging and misdirecting an international treaty with Article 1(2) FC. It has been 56 years too long.
Sarawak has to firmly grasp the reins of responsibility and accountability to ride and tame the unruly horse created by Article 1(2) FC which magically transformed Sarawak into a “State” without informing the United Nations, the United Kingdom and its DUN.
The alacrity of it all is that when Singapore quit the Federation, MA63 should have been re-examined, renegotiated, realigned and redressed.
The Constitutional Native Court of Sarawak awaits to become the ultimate tribunal to set things right and put the house in order. The hour draws nigh.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.
