This Ordinance may be cited as the Labour Ordinance 2. Minister may prohibit employment other than under contract of service. General power to exempt or exclude The Minister may by order exempt or exclude, subject to such conditions as he may deem fit to impose, any person or class of persons from all or any of the provisions of this Ordinance. Director of Labour and other officers.
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PRELIMINARIES At the commencement of the action, parties have agreed that the case can be heard by way of: witness statement for examination in chief; preliminary cross-examination by witness statement, with full liberty to further cross-examine orally for purposes of cross-examination ; preliminary re-examination statement with full liberty to further re-examination if there is further oral examination. The central issue in this case after hearing the arguments of both parties primarily involves the issue whether a native is entitled to maintain Customary Rights pursuant to a transfer under a modern sale and purchase agreement as opposed to customary transfers if any.
A total of 12 witnesses gave evidence for the plaintiff and the defendants. The second area or category of land claimed by the plaintiff is known as lot 34 as marked and shaded green in the map annexed to the statement of claim. The plaintiff claims prior right as against the 4th defendant over the said 2nd plot of land as it was he who first cultivated the said 2nd plot of land in for cocoa scheme and thereafter for his SEDC Adoption Scheme for cattle farming in The said lot 34 is approximately 2.
The third area or category of land claimed by the plaintiff is over three lots numbered as lots 1, 2 and 3 in the map annexed to a letter of authority No. That the 2nd parcel of land ie, lot 86 while it was state land ie, prior to its alienation to the said Lembaga Amanah Kebajikan Darul Falah, was part of the Sempadi Forest Reserve constituted vide Government Gazette Notification No.
The 3rd defendant says that they have lawfully entered into the said land after having obtained consent from the 4th defendant who is the registered proprietor.
Further, the 4th defendant alleges that as title has been lawfully issued to the 4th defendant it conclusively establishes that the plaintiff never had customary rights or if such rights existed, it was extinguished upon issuance of title.
The system of Customary Rights over land had evolved over near one and half centuries; since , when the Rajah James Brooke decided to make his first pronouncement pertaining to land. Through this process of evolution, native rights to land were recognised, under certain conditions spelt out in the various Proclamations and Orders made by the Rajahs and subsequently, in various legislations passed by the Council Negeri now Dewan Undangan Negeri of Sarawak.
As such, land occupied by natives under native customary tenure, are untitled ie, there is no document of title to show ownership. Whether a native has rights to such land would depend on whether he or his forefathers fulfilled certain requirements under the laws prevailing at the time which rights to the land were said to have been created.
Native customs which could create rights over land had been modified in Sarawak by laws made by the Rajahs and subsequently by the Council Negeri. At this juncture, it ought to be pointed out that in all legal systems, indigenous rights may be modified or extinguished by legislative or executive action.
Thus, in relation to land, the practice of native custom does not necessarily give rise to rights over land. It is only the practice of those customs which are part of the customary law of Sarawak, which can create rights to land and this is evident by the provisions of s. It is defined by s. However, the government has always respected the Adat of the natives in Sarawak and established the Majlis Adat Istiadat to codify the Adats of the various communities and established a native courts system to see that native customs are enforced.
Those Adats which have been codified would constitute the NCL of the state. The uncodified customs and traditions can be practised by the native communities but they do not form part of the NCL of the state. The article looks into the historical, sociological and cultural justifications of Iban customary land tenure and its legal constraints under the SLC. The traditional Iban farming system comprised, a rich mixture of religious rites and cultural practices Sather , and Freeman , and formed the basis upon which the pioneering ancestors of the present-day Iban first created customary rights to land in Sarawak.
Creation of customary rights to land and other natural resources within the territory of a longhouse community began when a ritual ceremony called panggul menoa was carried out by the pioneering ancestors in a particular area Lembat Once this ritual has been performed, pioneering households known as bilik families would then clear plots of virgin jungle to establish individual parcels of farmland called tanah umai.
These pioneering individuals who first cleared and cultivated the land thereby created rights to the land which were then passed on to their descendants through succeeding generations of bilik family members. Individual plots of farmland are separated from one another by boundaries called antara umai in Iban. Traditionally, antara umai were demarcated by streams, rivers, watersheds, ridges, and other permanent landmarks used as natural boundaries between individual parcels of farmland.
Such boundaries defined the size and extent of individual bilik rights over farmland. Rights of ownership are transferable in this system from parents to children. Distribution of plots of farmland among children is not necessarily equal. It is common among the Iban to accord more cultivation rights and privileges to children who look after ageing parents than to those who do not.
A territory or area of land which belongs to a longhouse community within defined boundaries is called its pemakai menoa in Iban Lembat Each pioneering longhouse, has its own territorial domain. A longhouse is separated from others by a garis menoa village boundary. The garis menoa is a very, important mechanism for resource distribution among pioneering longhouse communities. It also functions as an important resource management strategy because it helps to define areas of constrained space and so reduces inter-community conflicts between pioneering longhouses.
At the same time, it also regulates access to natural resources and cultivation rights among the members of the same longhouse within a pemakai menoa. The pemakai menoa, both physically and as a concept, is central to Iban resource management. Thus, pemakai menoa is the territorial domain of a longhouse community where customary rights to land and other natural resources were acquired by pioneering ancestors Ngidang Rights to a piece of land can be lost either by a transfer or when a person moves to another village through migration or pindah.
If an individual or family migrates to another village from the longhouse pindah , such rights can also be transferred to a relative who will in turn provide him with tungkus asi.
Today, tungkus asi has been replaced a token monetary gift known as ganti rugi. Thus tanah umai, or farmland, can be either private or common property, or both, depending on whether rights of access are held by individuals or by the community. A resource sharing concept is applied here when cultivation rights and rights of access to land are vested in the community. A community may invoke free access only to certain types of natural resources such as wild vegetables, shoots, etc.
At the same time, it reserves the right to restrict access to resources which have a high economic value, such as rattan, timber, and fruit trees, the benefits of which are shared by the whole community. It is customary to leave harvested farmlands fallow.
Forest-fallowing as practiced by the Iban is divided into four main stages Freeman The first stage of fallow is called jerami. The term jerami or redas in the Batang Rajang area refers to bush-fallow land at years after a padi crop has been harvested. The next stage is temuda, which has a fallow period of years, then damun with a fallow period ranging between years.
Finally, resembling virgin forest, pengerang is temuda which has been left uncultivated for more than 25 years. Rights to cultivate temuda land initially belong to, and then are inherited from, the person who first felled the virgin forest.
In the past, when resources were still abundant, any member of a longhouse had free access to resources in a temuda. For instance, he could take firewood and bamboo; gather wild fruits and vegetables, etc. In addition, a longhouse community has its own forest reserve or pulau. The term pulau refers to an area of primary forest within a pemakai menoa. Pulau can be collectively owned under a common property regime and managed by a longhouse community, or individually owned.
An individual creates the latter adjacent to the cultivated plot of land he first cleared at the time when a longhouse community established pemakai menoa. This reserve is called pulau umai and acts to preserve certain natural resources for future use.
These resources can be rattan, tapang trees, fruit trees, timber and so on. Rights of access to these resources belong to those who first cleared the land and to their descendants thereafter. In the case of community-owned pulau, there are four types of communal forest reserves set aside for hunting, gathering building materials and water catchments within a pemakai menoa.
During the process of creating a pemakai menoa in the pioneering days in the past, individuals might claim rights to a variety of special trees such as teras or belian, engkerebai the fruits of which are used to produce textile dyes , engkabang, and tapang trees the latter providing a place for honey bees to build hives. Tree tenure is established when the first person who finds the trees clears the undergrowth around them and thereby claims rights to these trees. Such rights were, and continue to be, heritable and passed down to the descendants of the claimant cf.
Sather The same applies to a planted tree; tenure rights apply to the tree and to the harvest of its fruits. Historical Justification of Customary Land Tenure According to the Sarawak Land Code SLC: Part II, page 27 , customary rights to land could only be created prior to 1 January in accordance with the native customary law of the community, based on any of the methods specified in Section 2, if a permit were obtained under section In Section 5 2 of the-Sarawak Land Code, these rights may be created by a felling of virgin jungle and the occupation of the land; b the planting of land with fruit trees; c the occupation or cultivation of land; d the use of land for a burial ground or shrine; e the use of land of any class for rights of way; or f any other lawful methods.
However, historical evidence suggests that the above land law clearly reflected legislative efforts to deconstruct native rights and reconstruct them based on foreign laws, which were alien to the Iban community.
Sarawak, with two-thirds of its population indigenous Dayaks, had a long history of Brunei rule prior to Brooke and colonial rule, and traditional land tenure, based on customary law or adat was in existence even before the Dayaks came under Brunei influence. Brooke land administration gave due recognition to the intimate relationship between adat and traditional land tenure.
Customary law or adat has always been instrumental in maintaining order and providing a state of balance between individuals, between individuals and the community, and between the community and the environment, both physical and spritual Langub Today, adat is still widely practiced among the Dayaks of Sarawak.
It is under the custodianship of the village headman and a crucial aspect of adat Richards ; Porter, is the definition of rules of access and rights of ownership to land and other natural resources within a longhouse territorial domain. It is also a collective community framework for regulating resource utilization and management in a sustainable manner for the common good.
James said that: I am going on slowly and surely, basing everything on their own laws, consulting all their headmen at every step, reducing their laws to writing what I think right, merely in the course of conversation — separating the abuses from the customs …. I follow, in preference, the plan of doing justice to the best of my ability in each particular case, adhering as nearly as possible, to the native law or customs. Quoted by Porter Recognition of native customary law led James Brooke to provide an important provision in the Land Regulation of , in which he declared that no scheme of alienation or land development should ever be introduced except in respect to land over which no rights had been established.
The Code of Laws of permitted Chinese immigrants to settle only on lands not occupied by Malays or Dayaks. A paternalistic relationship between the White Rajah and the natives encouraged subservience to Brooke rule.
When James Brooke was installed the first Rajah, of Sarawak in , he deliberately created a dualistic political economy: commercial agriculture and mining for the Chinese immigrants, on the one hand, and a subsistence economy for the natives, on the other.
Nevertheless, the Brookes did not encourage the development of large plantations in Sarawak. By invoicing such policy, the Brooke administration also intentionally created legal pluralism Hooker which defined and categorized two types of land tenure.
One was based on native customary law or adat perpetuated among the natives. The other was a codified land system, which legalized private land ownership and supported the commercialization of agriculture.
This matter was initially fixed for decision on 24 April I found that the submission was inadequate as the core issue to this case as to whether Customary Rights can be transferred was not adequately answered. In consequence, I gave directions to particularly address the following questions: What is the customary practice to transfer land? What must be stipulated in the transfer agreement?
How does the area of occupation identified? Who must be the witness s to the transfer ie, must it be the penghulu, etc.? What must be the traditional consideration; must it be stipulated in the agreement? Is Iban a race? What does community mean in s.
Sarawak Labour Ordinance (ACT A1237) - Chapter 76: Labour
LEGAL words and phrases have defined meanings which can be found in a legal dictionary. Generally in the case of land, twelve 12 years from the date of actual accrual of action, in the case of tort and simple contract, six 6 years from the date of accrual of action. If action is not so instituted, the right to sue is forever lost. The law of limitations in Malaysia is contained in the Limitation Act Act which declares itself to be an Act to provide for limitation of actions and arbitrations. However, this Act applies in Peninsular Malaysia only.
LIMITATION ORDINANCE SARAWAK PDF
PRELIMINARIES At the commencement of the action, parties have agreed that the case can be heard by way of: witness statement for examination in chief; preliminary cross-examination by witness statement, with full liberty to further cross-examine orally for purposes of cross-examination ; preliminary re-examination statement with full liberty to further re-examination if there is further oral examination. The central issue in this case after hearing the arguments of both parties primarily involves the issue whether a native is entitled to maintain Customary Rights pursuant to a transfer under a modern sale and purchase agreement as opposed to customary transfers if any. A total of 12 witnesses gave evidence for the plaintiff and the defendants. The second area or category of land claimed by the plaintiff is known as lot 34 as marked and shaded green in the map annexed to the statement of claim. The plaintiff claims prior right as against the 4th defendant over the said 2nd plot of land as it was he who first cultivated the said 2nd plot of land in for cocoa scheme and thereafter for his SEDC Adoption Scheme for cattle farming in The said lot 34 is approximately 2.