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Malaysia: Kelantan government applies to strike out Orang Asli case

The lawyers with the Temiars in the Kota Bharu High Court on Sunday.

V Anbalagan
Free Malaysia Today | 21 july 2019

The High Court can hear a dispute between Putrajaya and the Kelantan government over alleged encroachments into Orang Asli settlements in Gua Musang as it also involves five private companies, a lawyer said.

Gurdial Singh Nijar, who has obtained a fiat from the attorney-general to appear in this case, said the Federal Court can hear a dispute between the central government and a state under Article 128 (1) (b) only if constitutional issues are referred between two sovereign states.

“This suit also named other defendants (five companies) and therefore Article 128 (1) (b) of the Federal Constitution cannot be applied,” he said in his submission at the Kota Bharu High Court today to rebut the state government’s application to strike out the suit.

Gurdial said for practical reasons, there could also not be two sets of hearing on similar facts.

Loggers and Musang King planters being prevented from entering their sites in 2018.
The PAS-led government is arguing that Putrajaya has no legal standing to bring the case against it, the state director of lands and mines, and director of the state Forestry Department.

The state has taken the position that the federal government has no locus standi to bring the action.

However, Gurdial said Putrajaya is responsible for providing and protecting the Orang Asli’s welfare in the peninsula, as provided for under the constitution.

“The constitution gives the federal government the exclusive right to legislate on matters relating to the welfare of the aborigines under the Ninth Schedule, List 1, Item 16 of the constitution,” he said.

Further, he said Parliament had passed the Aborigines People’s Act 1954 and this law placed the welfare of the Orang Asli under a director-general.

Gurdial said Malaysia also signed the United Nations Declaration on the Rights of Indigenous People and although this is not legally binding on the courts, the Orang Asli have legitimate expectations from Putrajaya to protect their rights.

Federal counsel Kamal Azira Hassan, Saffiyah Omar and Ann Khong Hui Li and lawyers David Ragumaren and G Ragumaren, who have also been given a special licence by the AG, are representing Putrajaya.

The Kelantan state government has allowed extensive clear-cutting of forests to allow for monocrop agribusinesses and plantation projects, causing it to lose its Malaysian Timber Certification Scheme status.

Lawyer Khoo Guan Huat, appearing for the state and two others, said the constitution, which is the supreme legal document of Malaysia, has conferred jurisdiction to hear disputes between the state and Putrajaya only to the Federal Court.

“Any declaration sought by the federal government against a state government must be brought and decided before the apex court,” he said.

Khoo, who is appearing together with former Lord President Salleh Abas, said matters on land and forestry came under the purview of the states, and the federal government could not interfere.

The lawyer said the apex court was the appropriate forum to decide if the state and federal governments owed a joint fiduciary duty towards the Orang Asli.

He said suing on a constitutional and legal duty on behalf of the Orang Asli of Pos Simpor is also not a cause of action known in law.

“The plaintiff’s (Putrajaya) claim is, therefore, plainly scandalous, frivolous, vexatious and an abuse of court process and must be struck out,” he said.

Judicial Commissioner Wan Ahmad Farid Wan Salleh will deliver his ruling on Aug 6.

In 2010, the customary lands of the Temiar in the Pos Simpor area were pristine forests — until the loggers, ladang rakyats and musang king plantations started encroaching on them.

In January, Putrajaya filed the suit to protect the native land rights of the Orang Asli and also sought an injunction to stop private companies from encroaching into native lands to carry out commercial activities, as well as several declarations.

It also included Fleet Precision Sdn Bhd, Koperasi Kijang Mas Negeri Kelantan Bhd, KPG Maju Enterprise Sdn Bhd, Ringgit Saksama (M) Sdn Bhd and M7 Plantation Bhd.

The Kelantan government and its agencies had granted logging licences to private companies, allowing them to enter the native land of the Temiar Orang Asli in Pos Simpor, near Gua Musang.

Vast areas of forests were reportedly cleared to make way for durian and rubber tree plantations.

In its statement of claim, Putrajaya said this had deprived the Temiar Orang Asli of their native land and resources and caused widespread erosion, pollution and irreparable damage to the ecology and landscape of Pos Simpor.

Source: COAC