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An Applicant’s grandfather’s customary rights on Sipadan Island
helped Putrajaya win the case at the ICJ where it was ruled that the island
belongs to Malaysia.
RIGHTS The Federal Court, sitting in the Sabah capital, has allowed the
Application for Leave sought by two traditional turtle eggs collectors from Sipadan, Malaysia’s
only oceanic island in the Sulawesi Sea along the south-eastern seaboard of Sabah. The Application was lodged eight years ago on
seven questions of law on Native Customary Rights (NCR) and two questions on
rights, their right to collect turtle eggs on the island which the
International Court of Justice (ICJ) in The Hague
awarded to Malaysia on 17
December 2002, along with Ligitan Island, over a competing claim by Indonesia.
The three-man Panel comprising
Judges Ahmad Maarop, Abu Samah Nordin and Aziah Ali unanimously ruled in favour
of Abdillah Abdul Hamid and Ab Rauf Mahajud. Sabah Attorney General
Roderick Fernandez had requested dismissal for the Application for Leave.
Abdillah, represented by counsel
Alex Decena, wants to know from the Federal Court whether NCR was extinguished
by the Federal Government declaring an area a protected area and a protected
place under the Protected Areas and Protected Places Act 1959 (Act 298). This
is one of the seven questions.
Another question was whether the
Protected Areas and Protected Places Act 1959 (Act 298) had clear provisions
expressing clear and plain intention to extinguish NCR and private rights on Sipadan Island.
Abd Rauf, represented by counsel
Mohd Nor Yusof, wants to know among others whether a Court of Appeal ruling was
contrary to and/or repugnant to section 65 of the Sabah Land Ordinance (SLO) on the
definition of customary tenure. Another question was whether the
Applicant’s ancestral rights to exclusively collect turtle eggs on Sipadan Island was extinguished by virtue of
section 15 of the SLO and/or upon enforcement of the Wildlife Conservation
Enactment 1997 notwithstanding Article 13 of the Federal Constitution.
The High Court, which heard the
assessment of damages for two suits filed by Abdillah and Abd Rauf, had on 20
April 2011 awarded damages of RM4,376,008.75 to Abd Rauf in respect of the
right to collect turtle eggs and RM5,524,711.04 to Abdillah in damages.
Briefly, the case stems from the
Sabah Government taking over Sipadan
Island in 1997, and
without consent, licensing 12 companies to run businesses there and thereby the
two Applicants and their families were prohibited from collecting turtle eggs
on the island and disallowed from running any tourism business. Earlier, by an
Agreement on 4 November 1993, Borneo Divers and Sea Sports Sdn Bhd, and Pulau
Sipadan Resort agreed to pay Abd Rauf RM50,000 annually to cease collecting
eggs and thereby allow them to be laid on the island for natural hatching as
tourism assets. In November 1998, the Syariah Court in Tawau granted Abd Rauf
an Order to inherit the right to collect turtle eggs on Sipadan for 40 nights a
In a Supporting Affidavit, Abd Rauf
said that the Federal Government had recognized his grandfather’s right to
collect turtle eggs on Sipadan
Island. The government
had also sought his grandfather’s co-operation to challenge Indonesia’s claim to the island at the ICJ in The Hague. He added
that his grandfather’s customary rights on the island helped Putrajaya win the
case at the ICJ where it was ruled that the island belongs to Malaysia.
However, he lamented, the Sabah Government denied his family’s ownership of the
island under customary tenure.
In his Supporting Affidavit, Abd
Rauf said that he was the heir to Maharaja Ligaddung Samang who had the rights
to collect turtle eggs on Sipadan
Island. This right was
recognized by the British Government via letters dated 25 January 1916 and 5
Picture Credit: cuti-cutimalaysia.net