'Time to shake up timid BN reps'

The Antidote Sarawak’s new PKR leader Baru Bian has challenged Barisan Nasional (BN) elected representatives in the state to be bold in speaking up against injustice.

In an exclusive interview, he condemned the recent discrimination against Marina Undau, an 18-year-old girl of mixed Iban native and Chinese parentage from Sri Aman, Sarawak.

Sarawakians were enraged when the Higher Education Ministry rejected her application for a matriculation programme, even though she had scored an impressive nine As and one B in last year’s Sijil Pelajaran Malaysia examination.

The ministry argued that Article 161(a) of the constitution defines a Sarawak ‘native’ as someone whose parents are both ‘natives’. This definition is at odds with the situation in Sabah and Peninsular Malaysia, where a ‘native’ is someone when either parent is a ‘native’.

Baru Bian (left), a highly respected lawyer, offered to represent Marina to contest the ministry’s decision. Following the publicity surrounding his challenge, there was a flurry of activity in high places.

The federal cabinet scrambled to placate aggrieved Sarawakians. On Nov 14, it executed a high-speed administrative U-turn and declared that Marina is, after all, ‘bumiputera’.

However, the government refused to provide the same privilege to thousands of other Sarawakians of mixed ‘native’ and ‘non-native’ parentage. Mixed marriages are common in the state.

Baru Bian is the first Sarawakian native leader of the PKR. By taking the helm, he faces the Herculean task of forging cohesion among Sarawak’s fragmented opposition parties.

His appointment is seen as a beacon of political stability, unlike the turmoil in PKR in neighbouring Sabah. His recognition of Marina’s plight was one of his first public statements.

A deeply religious member of the Lun Bawang community, Baru Bian was raised in the high plateaus of Ba’kelalan in northeast Sarawak, and has become an outspoken land rights advocate.

He has been fighting, together with a small band of fellow lawyers, a long and grim battle for native customary rights to land. He has defeated intimidating foes, including the state government, and plantation companies with immense political clout, in several landmark cases.

One celebrated example was Nor Nyawai, which established that native farmers have rights to gazette pulau (communal forests), as well as pemakai menua (territorial domain), despite incursion by loggers, dam builders and plantation companies.

Excerpts of the interview follow.

Malaysiakini: Why do you think there is a constitutional discrepancy between the definition of ‘native’ in Sabah and Peninsular Malaysia, and that in Sarawak?

Baru Bian: My only guess is that the matter was already an issue (during the framing of the constitution) in Sabah and (Peninsular) Malaysia, but not in Sarawak. When I was growing up, news of our people marrying outsiders was frowned upon.

Why has the constitutional amendment of Article 161(a) never been put right, throughout 46 years of Sarawakian participation in Parliament?

Our BN YBs were under the dictate of others (so) they dared not speak for the rights of the ordinary people, as evident to this day.

This culture must be changed. God willing, I want to encourage our people to think independently and have the freedom to speak out against the wrongs in society - and to be bold and courageous in the course of doing so.

Because of the BN culture of suppressing dissent, our people have become docile and timid, and this has led to indifference to a lot of issues affecting the lives of our people.

Why has the Sarawak government said so little in public about the furore over Marina Undau? Deputy Chief Minister Alfred Jabu and Joseph Salang, a deputy federal minister, only made pronouncements after your statement that you were willing to represent her.

(The timing was) definitely not a coincidence.

They realised that this is a very important issue affecting many people, and for the opposition to come and take hold of the issue would be a big embarrassment.

Take note though, that the cabinet decision purportedly solving this issue (only) resolved it temporarily. Bear in mind that it is not as good as the power of amendment of the law.

The law must still be amended, which will cover everybody (of mixed marriage) in the same category.

What is the legal standing of an ‘administrative decision’ by the cabinet to declare Marina Undau a bumiputera? Does this indicate, as some have argued, that ‘bumiputera’ is a political construct, arising from the New Economic Policy (NEP), rather than a constitutional definition of ‘native’?

The decision of the cabinet is just a policy decision and NOT a legal decision.

Note too that ‘bumiputera’ was never defined under the constitution. It was a concept arising from the NEP, and of course derived from the spirit of the federal constitution, for example, Articles 153 and 161.

Therefore ‘native’ is defined both in the federal constitution and the constitution of Sarawak.

Why has the federal cabinet not made an ‘administrative decision’ to declare all these Sarawakians ‘bumiputera’, while preparing a constitutional amendment?

I don’t know why they are not doing that. In fact, I am advising our Ketua Umum (Anwar Ibrahim) and leaders to push for an amendment in the next sitting of Parliament. If they are serious about solving the issue, that should be done.

A lot of people were unhappy with the (federal cabinet’s) decision. I think it is still a concern to those (children of mixed marriages) affected.

In fact this was an issue raised in my landmark case of Nor Ak Nyawai, where the state attorney-general’s chambers tried to argue that we had to prove that all the plaintiffs are Ibans and that none are children of a mixed marriage. (At the) last minute they withdrew, after I submitted 60 pages of argument!

Of course, questions were asked about the chief minister's children: whether they are native/bumiputera under the Sarawak constitution (the chief minister’s late wife was an Australian). That was, I think, the reason the attorney-general’s chambers withdrew their point of argument.

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KERUAH USIT is a human rights activist - anak Sarawak, bangsa Malaysia. His ‘The Antidote' column, which appears in Malaysiakini every Wednesday, is an attempt to allow the voices of marginalised people to be heard all over Malaysia.